journal of law & legal reform volume 1(2) 2020 225 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia research article population growth control policy and its effect to law enforcement sinta oktavina1 1 postgraduate program, master of laws, universitas negeri semarang, indonesia  oktavina.epaso@gmail.com cited as oktavina, s. (2020). population growth control policy and its effect to law enforcement. journal of law and legal reform, 1(2), 225-240. doi: https://doi.org/ 10.15294/jllr.v1i2.35460 abstract in minimizing population growth that occurs in indonesia one of them can be done with a family planning program (kb) that has been carried out by the government. in accordance with the framework and ideals of the indonesian people listed in the opening of the 1945 constitution. the purpose of the study was to describe the implementation of improving population control through family planning programs in semarang district in terms of article 4 paragraph (1) of the central java regional regulation no. 6 of 2013 and knowing the supporting and inhibiting factors in overcoming population control through family planning programs in semarang regency. this legal research method uses a qualitative approach with a type of socio legal research. the results of the study were obtained that (1) the implementation of family planning programs in semarang regency was carried out well from the central level to the field. the office of pp, pa, and kb carry out regulations related to family planning programs which are the vision of the regent. by communicating, providing information and education to the community and providing socialization and coordination in the implementation of family planning. (2) the supporting factor is the regulation on the implementation of family planning; there is reliable medical personnel. as for the inhibiting factors, not all communities accept the existence of a family planning program; community culture that is still strongly attached to each individual community. the conclusion is that the success of family programs goes very well and cannot be separated from community participation. so that it can be seen from the number of babies born can be reduced from 14,127 in 2015 and 13,328 in 2016 which are spread from 19 districts in semarang regency. keywords: family planning, implementation, control submitted: 13 november 2019, revised: 13 january 2020, accepted: 20 january 2020 journal of law and legal reform (2020), 1(2), pp. 225-240. doi: https://doi.org/10.15294/jllr.v1i2.35460. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:oktavina.epaso@gmail.com http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 226 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 225 table of contents ………………………………………………………….. 226 introduction …………………………………………………………………. 226 method …………………………………………………………………………… 227 population control policy (case of central java, indonesia) ………………………………………………………………………. 228 i. implementation of improvement of population control through the family planning ……………………. 228 ii. communication, information and education …………... 229 iii. increased community integration and roles …………... 230 factors in tackling population control through family planning programs in semarang regency …………. 234 i. supporting factors in tackling population control through family planning programs in semarang regency ……………………………………………………………………... 234 ii. inhibiting factors in overcoming population control through family planning programs in semarang regency ……………………………………………………. 235 conclusion …………………………………………………………………….. 235 references ……………………………………………………………………... 236 introduction as an archipelago, the population of indonesia has an uneven distribution. this causes population growth to be closely linked and affects various aspects of life, especially improving the quality of life or the quality of human resources (asshiddiqie, 2005). in article 26 paragraph 2 of the 1945 constitution states that "residents are indonesian citizens and foreigners residing in indonesia". for this reason, the government is trying to make regulations relating to tackling population growth which continues to grow (ataullahjan, mumtaz, & vallianatos, 2019). the population problem related to the large number of the population becomes an unavoidable problem and becomes one of the problems that really attracts the attention of the government to be immediately addressed (barroso, 2015). in 1992 the government made laws and regulations namely law no. 10 of 1992 concerning development of population and family welfare development which was later updated with law no. 52 of 2009. article 2 states that "population is a matter relating to the number, structure, growth, distribution, mobility, distribution, quality, and welfare conditions relating to politics, economy, social cultur e, religion and the environment of the local population." in the semarang district alone at the end of 2016, the total population recorded was 1,005,677 people consisting of 503,539 people (51%) male population and 502,138 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 227 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia people (49%) female population. the more population, the more marriages are carried out, and the more marriages that are carried out, the more children are born so that an increasing population growth rate (ritonga, 2001). for this reason, it is necessary to carry out population control in order to reduce the increasing population, so that the regional government also makes central java provincial regulation no. 6 of 2013 concerning population control and family planning organization. with the large population that occurs resulting in various complex problems that often occur so often the government must act as soon as possible to take a policy. (masiano, green, dahman, & kimmel, 2019) population growth can be seen as a supporting factor for development because population growth also means an increase in labor that can increase production and expand markets (loyola briceno et al., 2017). while on the one hand population growth is one of the inhibiting factors. so from this data, the indonesian government must take action in order to minimize the very high population growth. one effort that can be done is to maximize the role of competent agencies or agencies in dealing with population growth (kelsen, 2010). in the process of minimizing population growth, it must be done in several stages that have been formatted so well that it can be carried out and run well because at any time population growth can change (tran et al., 2019). to minimize population growth in indonesia, one can be done with family planning (kb) programs that have been carried out by the government (woo, alamgir, & potter, 2016). the family planning population program is also a means to achieve a just and prosperous and prosperous society. in accordance with the framework and aspirations of the indonesian people listed in the preamble to the 1945 constitution. to achieve these goals a development framework including a population planning program was formulated (brunson, 2019). method the research approach used in this study is a qualitative approach in which the researcher tries to explain and describe each object that is examined is tentative in the context of time and certain situations (moleong, 2012). the truth of the research results is more supported through trust-based on confirmation with the parties studied. this type of research used in this study is a sociological juridical non doctrinal approach, namely the study of law using a legal and social science approach (shidarta, 2011). the focus of his research is on how the implementation of increasing population control through the kb program in semarang regency and what factors influence it. the location of data collection is at the office of women's empowerment, child protection and family planning in semarang regency and the semarang regency population and civil registry office. data sources used are primary, secondary and tertiary data sources (soekanto, 1986). the data collection techniques that i use are interviews and literature studies. the validity of the data that i use is the triangulation method (yuliyanto, 2009). analysis of the data used by interactive analysis models by huberman and miles (suratman, 2013). http://creativecommons.org/licenses/by-nc-sa/4.0/ 228 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia population control policy (case of central java, indonesia) i. implementation of improvement of population control through the family planning central java regional government as an autonomous region made central java regional regulation no. 6 of 2013 concerning population and family planning control. the background for the formation of this regional regulation is that the family as the smallest unit in society has an important role in regional development, therefore it is necessary to develop and develop its quality so that it can always be a prosperous family and be an effective human resource for regional development (mohan & shellard, 2014), especially in the regency semarang. to analyze whether local regulations made can be accepted well by the community must also see what elements influence the formation and enforcement (e. miller et al., 2016). according to robert b. seidman, there are three factors that influence the enactment of the law. seidman's model approach rests on its function of law, being in a balanced state. this means that the law will be able to work well and effectively in the society it governs (g. miller & babiarz, 2015). it is hoped that all three elements must function optimally. observing the effectiveness of the law and the operation of the law in society needs to pay attention to the following matters: (nalwadda, namutebi, & volgsten, 2019) 1) regulatory institutions; whether this institution is an authority or legitimacy in making rules or laws. related to the quality of normative material, whether it meets the requirements and the formulation is clear (segrott et al., 2017). 2) the importance of implementing regulations; the executor must strictly implement the law's order without discrimination or equal justice under law (rogers, silva, benatar, & briceno, 2018). 3) role holder; expected to obey the law, ideally with the quality of internalization. stakeholder behavior and reactions are feedback to regulatory bodies and the implementation of regulations. whether these two elements have performed their functions optimally (sonalkar, mody, & gaffield, 2014). these three elements called the law-making process; law enforcement process; and legal users, it is very important to assess the functioning of the law or the operation of the law in society. the law is expected to function optimally, and work well in society, and must be taken seriously (catley-carlson, 1997). seidman's model approach rests on its function of law, being in a balanced state. this means that the law will be able to work well and effectively in the society it governs. it is hoped that all three elements must function optimally (eva, quinn, & ngo, 2015). the implementation of the family planning program in semarang regency is carried out by the office of women's protection, child protection and family planning in collaboration with other parties both government agencies and village cadres appointed by the village head by: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 229 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia 1) establish provisions for the implementation of family planning to realize a balanced growing population and quality family, the governor established a family planning policy through the implementation of a family planning program. the family planning policy as referred to in article 23 of the central java regional regulation no. 6 of 2013 was implemented to assist candidates or married couples in making decisions and realizing reproductive rights responsibly. 2) socialization and coordination of the implementation of family planning the government in conducting outreach, advocacy, and coordination through improving access and quality of the implementation of population development, family development, and family planning services in coordination with the provincial government and regency / city governments. in order to improve access and quality in the implementation of population development, family development and family planning services of the government and regional governments: a. provide infrastructure and facilities for population development, family development, and family planning services; b. provide cover; and c. provide references for participants in family planning who are in need. provision of facilities and infrastructure for the implementation of population development, family development, and family planning services include: a. kie; b. contraceptive devices and drugs; and c. recording and reporting on family planning services. family planning efforts are made through (eslami & d’arcangues, 2016) a. promotion; b. protection; and / or c. assistance in accordance with reproductive rights. ii. communication, information and education education information communication (iec) aims to increase knowledge, attitudes, and behavior of the community in order to support the implementation of family planning. the objectives of the implementation of iec includes: a. individual; b. group of people; and c. general public. iec is carried out through the delivery of information and / or demonstration of contraceptive devices, drugs, and / or methods. iec is implemented at the appropriate place and by: a. health workers; b. family planning counselors; c. family planning field officers; and d. other trained staff. the implementation of iec is carried out through the efforts of: a. advocacy and mobilization; b. counseling; c. accompaniment; and d. family empowerment. advocacy and mobilization is an effort to provide services to the community in the implementation of family planning conducted by the government, provincial governments, regency/city governments together with individuals, non-government http://creativecommons.org/licenses/by-nc-sa/4.0/ 230 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia organizations, community organizations, professional organizations, and the private sector. iii. increased community integration and roles the government and the regional government carry out a comprehensive and integrated family planning policy effort. the implementation of a comprehensive and integrated family planning policy effort is carried out coordinatively between ministries and non-ministerial government agencies. in organizing family planning policy efforts, the government and regional government can involve the participation of the community (pusat pendidikan dan latihan bkkbn, 1980). community participation in the form of: 1. family coaching family coaching is carried out in order to support: a. developing family security and resilience; and b. implementation of family functions. 2. family development family development accompanied by iec, provision of facilities and infrastructure; and other coaching efforts. the development of family security and resilience is carried out by forming and developing: a. fostering family of toddlers and children; b. fostering adolescent family resilience and fostering adolescent / student reproductive health counseling and information centers; c. fostering the resilience of elderly families; and d. family economic empowerment. e. pregnancy settings 3. family planning family planning is carried out with efforts to increase awareness and community participation through: a. mature age of marriage; b. desired pregnancy settings; c. fostering family planning participation; and d. increase family welfare. efforts to increase awareness and community participation are directed at the growth of awareness, willingness, and ability of the family independently in building small families, happy, and prosperous. maturing the marriage age is held in the context of civilizing the attitudes and behavior of the people to carry out the marriage in the ideal age of marriage. the ideal age of marriage is considered by taking into account factors including:(fischer, royer, & white, 2018) a. physical and mental readiness of a person in forming a family; b. independence of attitude and maturity of one's behavior; c. health degree including healthy reproduction; d. knowledge of prosperous family planning; and e. statutory regulations in force. arrangement of pregnancy held in order to increase public awareness in delaying the pregnancy of the first child until the ideal age of childbirth and regulating the distance of birth. the ideal age of childbirth is the age that is determined or http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 231 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia influenced by factors: a. risk of childbirth; b. capabilities regarding care for pregnancy, post-delivery, and periods outside of pregnancy and childbirth; c. degree of healthy reproductive health; and / or d. mental, social, and economic wealth in the family. delaying pregnancy is carried out in the framework of planning the number and distance between child births that are carried out by the couple themselves on the basis of awareness and volunteerism. delaying the pregnancy is carried out using tools, drugs and / or contraceptive methods that can be accepted by husband and wife according to their choice. , drugs and / or methods of contraception are determined by taking into account the effectiveness and effectiveness, risks to the health and religious values and values that live in society. according to roberth b. seidman in addition to the law made and the law enforced, the law used also determines the success or failure of the operation of the law. the use of law in society has a close relationship with legal awareness in the community itself. it is said that the higher the level of law used in society, the working system of law can be created properly.(garney et al., 2019) simply stated, the level of community compliance with the law is one indicator of the operation of the law, in this case the community's perspective on the existence of the regional regulation made by central java province no. 6 of 2013 will determine the success in its implementation. birth is one component of population growth that is increasing the population. the number of births has consequences on the fulfillment of the needs of the baby's growth and development, from the fulfillment of nutrition, maternal and child health care, and in turn requires educational facilities including the fulfillment of employment opportunities.(carter, 2018) birth rates in the past will affect the high and low number of births in the present, so knowledge about fertility and its indicators, including family planning is very useful for policy makers and plans in preparing social development programs, especially related to efforts to improve the welfare of mother children and family development. (results of an interview with ms. sri redjeki as head of data and information management) there are four key steps in the success of reducing fertility, namely grassroots participation to reach rural areas, innovative communication to realize the norms of happy and prosperous small families (nkkbs), government and private partnerships, and shifting focus to quality services. " in semarang regency, namely: 1. use grassroots participation to reach rural areas. the government recruited 40,000 field workers and 100,000 volunteers to bring the community to the service area. they were at the village level and the officers and cadres visited house to house to discuss family planning methods, provide counseling, and make referrals to the puskesmas (health center). 2. the government launched an innovative program that utilizes and optimizes all communication channels and channels of family planning campaigns designed to http://creativecommons.org/licenses/by-nc-sa/4.0/ 232 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia bring the changing social norms from the norms of many children to the norms of few children, which are called "small, happy and prosperous family norms so that the norms are institutionalized in public. 3. realizing that the government, in this case government service places, might not be able to provide optimal services to fulfill family planning services. on the other hand, there is another potential that needs to be explored, so once again carried out mutual cooperation or partnering with private parties. 4. since the mid-1990s, the pattern of kb cultivation has not only focused on quantity but has also been directed towards quality of service. the number of births is defined as the number of live births that occurred at a certain time and in a certain region. information about the number of births is useful for planning the construction of various facilities needed especially the development of maternal and child health facilities, both for the present and for the future. in addition, data on the number of live births is the basis for the calculation of various other fertility indicators.(x. wang & zhang, 2018) the number of live births recorded at semarang district health office in 2015 was 14,127 people. table 1 number of birth rates in 2015 no sub-districts men women total n  n  n  1 getasan 349 4.85 279 4.29 646 4,57 2 tengaran 461 6.40 435 6.28 896 6,34 3 susukan 328 4.56 334 4.82 662 4,69 4 suruh 593 8.24 545 7.87 1.138 8,06 5 pabelan 335 4.65 310 4.48 645 4,57 6 tuntang 457 6.35 406 5.86 863 6,11 7 banyubiru 318 4.42 299 4.32 617 4,37 8 jambu 288 4.00 304 4.39 592 4,19 9 sumowono 221 3.07 206 2.97 427 3,02 10 ambarawa 436 6.06 429 6.19 865 6,12 11 bawen 363 5.04 384 5.54 747 5,29 12 bringin 346 4.81 301 4.35 647 4,58 13 bergas 523 7.26 476 6.87 999 7,07 14 pringapus 359 4.99 383 5.53 742 5,25 15 bancak 163 2.26 169 2.44 332 2,35 16 kaliwungu 201 2.79 186 2.69 387 2,74 17 ungaran barat 579 8.04 529 7.64 1.108 7,84 18 ungaran timur 456 6.33 493 7.12 949 6,72 19 bandungan 424 5.89 441 6.37 865 6,12 total 7.200 100,00 6.927 100.00 14.127 100,00 while the number of live births recorded at semarang district health office in 2016 was 13,328 people. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 233 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia table 2 number of birth rates in 2016 no sub-districts men women total n  n  n  1 getasan 326 4,76% 334 5,16% 660 4,95% 2 tengaran 483 7,055 433 6,69% 916 6,87% 3 susukan 277 4,04% 284 4,39% 561 4,21% 4 suruh 509 7,43% 269 4,15% 778 5,84% 5 pabelan 285 4,16% 325 5,02% 610 4,58% 6 tuntang 475 6,93% 441 6,81% 916 6,87% 7 banyubiru 313 4,57% 298 4,60% 611 4,58% 8 jambu 277 4,04% 264 4,08% 541 4,06% 9 sumowono 212 3,09% 195 3,01% 407 3,05% 10 ambarawa 471 6,87% 434 6,70% 905 6,79% 11 bawen 334 4,87% 335 5,17% 669 5,02% 12 bringin 321 4,68% 309 4,77% 630 4,73% 13 bergas 468 6,83% 395 6,10% 863 6,48% 14 pringapus 362 5,28% 342 5,28% 704 5,28% 15 bancak 162 2,36% 163 2,52% 325 2,44% 16 kaliwungu 163 2,38% 188 2,90% 351 2,63% 17 ungaran barat 533 7,78% 557 8,60% 1.090 8,18% 18 ungaran timur 471 6,87% 487 7,52% 958 7,19% 19 bandungan 411 6,00% 422 6,52% 833 6,25% total 6.853 100,00% 6.475 100,00% 13.328 100,00% based on the data above shows that the birth rate of babies in semarang district decreased to 13,328 newborns in 2016 consisting of 6,853 male babies and 6,475 female babies, which originally in 2015 amounted to 14,127 newborns. with the highest number of births, there are 1,090 babies in west ungaran district and 325 babies in bancak district. with the decrease in the number of baby births in semarang regency, it cannot be separated from the government's role that can be said to be successful in carrying out programs made one of them through family planning programs so that the increase in population can be overcome. as well as being inseparable from the role of other figures who helped carry out this family planning program and also the most important role of the community from 19 subdistricts spread in semarang district, resulting in a decrease in the number of baby births by 799 people. http://creativecommons.org/licenses/by-nc-sa/4.0/ 234 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia factors in tackling population control through family planning programs in semarang regency i. supporting factors in tackling population control through family planning programs in semarang regency in the implementation of the family planning program, of course there are factors that support it when the program is carried out. the supporting factors are as follows: a. the existence of regional government organizations in implementing the family planning program, it is necessary to have a role to carry it out. which in semarang regency is the office of women's empowerment, child protection and family planning which was originally named the family planning and women's empowerment agency has a role in implementing programs that have been created by the government and delivered and applied directly to the community. b. there is support for contraception the success of the family planning program in semarang regency cannot be separated from the support of contraceptive devices provided by the national population planning board (bkkbn). these contraceptives include a combination of progestin and estrogen birth control pills, iud birth control pills, and progestin birth control pills. c. reliable medical staff the role of reliable medical personnel namely doctors, midwives and nurses is very influential in the success of the family planning program undertaken. without the role of medical staff the government program that has been created will not run properly. there is a need for cooperation between the government and medical personnel in order to reduce the high population growth in semarang regency. d. the existence of data and reporting systems that are sustainable. data collection and reporting are important factors in the success of a program being implemented. with the data collection we can know the shortcomings and progress regarding a program that is being run. in addition, the presence of data collection and reporting systems makes it easy for each government agency to collaborate with other agencies and related parties. for this reason, it is very important to have continuous data collection and reporting. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 235 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia ii. inhibiting factors in overcoming population control through family planning programs in semarang regency in its implementation there are not only factors supporting the implementation of the family planning program in order to create population control, but there are also inhibiting factors in its implementation. the inhibiting factors are: a. not all people have accepted the family planning program indonesian people, especially in semarang regency, are still many who do not want to accept the family planning program due to the culture of society that is still strongly embedded in each individual community, of which there are still many who assume "many children have a lot of luck". b. limited human resources the number of human resources assigned is still small, where family planning field officers (plkb), namely civil servants referred by the pp, pa, and kb office as well as village cadres, are still many who are not willing to implement family planning programs made by the government. c. its facilities and infrastructure are not yet optimal in function inadequate function of the facilities and infrastructure available in each village such as the lack of minimal facilities to implement family planning programs so that the implementation of family planning programs is hampered. d. funds released from the regional budget are not optimal funding released from the state budget is often not fully optimal so that whether the program has been made by the government has significant results or not. for this reason, the management of funds from the state budget must be carried out in a better and planned manner so that the impact can be truly felt. conclusion based on the results of research and discussion that has been described previously, it can be concluded about the problems that implementation of increasing population control through the family planning program in semarang regency is carried out regulations from the central level to the field. the role of the government is to provide socialization and coordination in the implementation of family planning. in addition, the government communicates by providing information and education to the public. the success of the family planning program cannot be separated from the participation of the community itself. can be seen until the end of 2016 the implementation of the family planning program carried out by the office of pp, pa, and kb in collaboration with various parties runs very well. where can be seen from the reduction in the number of baby births from 2015 the number of births was 14,127 consisting of baby boys and baby girls spread from 19 districts in semarang regency. and the number of babies born in 2016 was 13,328 consisting of boys and girls from 19 districts in semarang regency. supporting factors in the implementation of family http://creativecommons.org/licenses/by-nc-sa/4.0/ 236 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia planning programs are the existence of regional apparatus organizations; support for contraception; reliable medical personnel; the existence of data and reporting systems that are sustainable. in addition to the supporting factors that support the success of the program being run, there are obstacles encountered when implementing the kb program in order to create population control, among others not all communities have accepted the family planning program; limited human resources; facilities and infrastructure that are not yet optimal in function; funds disbursed from the regional budget are not optimal. references ataullahjan, a., mumtaz, z., & vallianatos, h. (2019). family planning in pakistan: a site of resistance. social science and medicine, 230(november 2018), 158–165. https://doi.org/10.1016/j.socscimed.2019.04.021 asshiddiqie, j. (2005) hukum tata negara dan pilar-pilar demokrasi. jakarta: konstitusi press. bang, k. s., chae, s. m., lee, i., yu, j., & kim, j. (2018). effects of a community outreach program for maternal health and family planning in tigray, ethiopia. asian nursing research, 12(3), 223–230. https://doi.org/10.1016/j.anr.2018.08.007 barroso, c. (2015). family planning programs: feminist perspectives. in international encyclopedia of the social & behavioral sciences: second edition (second edi, vol. 8). https://doi.org/10.1016/b978-0-08-097086-8.31030-3 brown, w., ahmed, s., roche, n., sonneveldt, e., & darmstadt, g. l. 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(2009). dualisme penenlitian hukum normatif & empiris. yogyakarta: pustaka pelajar. zhang, w.-h., li, j., che, y., wu, s., qian, x., dong, x., … temmerman, m. (2017). effects of post-abortion family planning services on preventing unintended pregnancy and repeat abortion (inpac): a cluster randomised controlled trial in 30 chinese provinces. the lancet, 390, s29. https://doi.org/10.1016/s01406736(17)33167-7 http://creativecommons.org/licenses/by-nc-sa/4.0/ 240 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote population growth is straining the earth's resources to the breaking point, and educating girls is the single most important factor in stabilizing that. that, plus helping women gain political and economic power and safeguarding their reproductive rights. al gore http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 107 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article law enforcement on fisheries crime after the enactment of law number 45 of 2009: a normative analysis joko susanto1, ali masyhar2 1 community movement against corruption (gmpk) semarang, indonesia 2 faculty of law, universitas negeri semarang, indonesia  bungjoko69@gmail.com how to cite susanto, j., & masyhar, a. (2020). law enforcement on fisheries crime after the enactment of law number 45 of 2009: a normative analysis. journal of law and legal reform, 1(1), 107-128. doi: https://doi.org/10.15294/jllr.v1i1.35590 abstract it is undeniable that in the management of natural fisheries resources there are still violation by the un-responsible parties in that field. the violation can cause bad for the fisheries ecosystem in our country. the impact will reduce the fisheries resource in which could have been managed for the beneficial of the people. one of the matters that will be discussed in this article is about the philosophical juridical foundation about natural resource, knowing the normative review in the field of fisheries, element of criminal liability, modes of operation in fisheries crime, as well as the knowledge about the advantages and disadvantages of fisheries law change. however, in order to protect the national wealth in form of fisheries resources it is required that the government takes action in preserving natural resources. in this case the role of law is very important, especially criminal and civil law as a media to control and prevent the action that can disturb the management and preservation of the fish resources and environment. in law number 31 of 2004 jo. law number 45 of 2009 concerning fisheries provides clarity and legal certainty towards law enforcement for criminal offense in the field of fisheries, which includes investigation, prosecution and examination at the court hearing. suggestion in this article are legal rules regarding the law of fisheries which is still valid at the moment must be reconstructed and renewed so that the law enforcement authorities are more able to increase the supervision and action in the indonesian sea, including the need of public attitude and awareness towards the law especially in the field of fisheries. keywords: fishing crimes, fisheries law, law enforcement, illegal fishing submitted: 23 august 2019, revised: 15 september 2019, accepted: 31 october 2019 journal of law and legal reform (2020), 1(1), pp. 107-128. doi: https://doi.org/10.15294/jllr.v1i1.35590. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35590 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35590 https://doi.org/10.15294/jllr.v1i1.35772 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 108 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 107 table of contents ………………………………………………………….. 108 introduction …………………………………………………………………. 108 method …………………………………………………………………………… 110 natural resources, protection and its law enforcement in indonesia ……………………………………………… 111 i. the philosophical & juridical background on the protection and law enforcement of natural resources …………………………………………………………………… 111 a. philosophical background ………………………………………………..… 111 b. juridical background ……………………………………………………….. 112 ii. fisheries criminal acts and responsibility of legal subjects ……………………………………………………………………… 113 a. normative review of fisheries criminal acts ……………………………. 113 b. elements of criminal charge ………………………………………………. 117 the modus operandi of criminal acts in the field of fisheries …………………………………………………………………………. 119 i. fisheries crimes and recent condition in indonesia ….. 119 a. how fisheries crimes occurred in indonesia? …………………………… 119 b. strengths and weaknesses of indonesian fisheries act ………………… 123 conclusion …………………………………………………………………….. 124 references ……………………………………………………………………... 125 introduction since the ratification of united nation convention on the law of the sea (unclos) 1982 through the law number 17 of 1985 is a milestone of battle for the republic of indonesia in having the right to use, conserve, and management of fish resources indonesia’s exclusive economic zone and the high seas which is carried out based on applicable international condition and standards. the conventions become the part of ‘dialectic’ history to rethink. for indonesia to tighten the conservation of marine resources indonesia need to establish various cross sectorial law in the field of fisheries law (masyhar, 2019). the discussion about the fisheries law is not a new thing anymore, which is echoed. because since colonial times there has been five national legal regulations formed including staatsbland of 1916 number 157, staatsbland of 1920 number 396, staatsbland of 1927 number 144, staatsbland of 1927 number 145, and staatsbland of 1939 number 442. after indonesia gained independence, these regulations are still remains in effect based on article ii of the transitional of the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 109 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1945 law constitution because as long as the new regulations have not yet been formed, the old regulations will still remain in effect. after indonesia gained the independence in a period of 40 years, a long period of time was then formed in law number 9 of 1985 about fisheries enacted in 1985 state agency number 46 and additional state fascicle number 3299. after in effect for approximately eighty years the law then replaced with law number 31 of 2004 concerning fisheries enacted in the 2004 state institution and additional state institution number 4433, which applied in 6 october 2004. the replacement of the law has no other intention, carried out on the basis that the old law has not been able to accommodate all aspects of fish resource management and is less able to anticipate the developments of legal needs and technological developments in the context of management of fish resources. the validity period of law number 31 of 2004 also does not last long, because in 2009 it was revised to add several laws, as well as article through the formation of law number 45 of 2009 concerning fisheries. the changes to the law were made because in reality, law number 31 of 2004, again still has some weaknesses including (al-khawarizmi, 2013): 1. the management aspects in fisheries include the absence of coordination mechanism between agencies related with the fisheries management. 2. the bureaucratic aspect includes conflicting interest in fisheries management. 3. law aspects include law enforcement issues, formulation of sanction, and the competence of district courts for criminal offenses in the field of fisheries which occur outside the authority of the district court. some changes that occur in law number 45 year 2009 can be be observed. first, regarding the supervision and law enforcement related with the problem of coordination mechanism between fisheries criminal investigation agencies, the application of criminal punishment (imprisonment or fines), procedural law especially concerning deadline for examining cases, and facilities in law enforcement in the field of fisheries, including possibility of using legal action in the form of sinking foreign vessels in the operating territory of republic indonesia. second, fisheries management issues including fishing harbor and conservation, licensing, and martyrdorm. third, regarding the expansion of court jurisdiction to covers the entire republic indonesia fishing management territory. there are still many laws relating with legal fisheries regulations which are related with other law. among them are can be found in law number 6 year 1996 about indonesian sea, law number 43 year 2008 about shipping, law number 5 of 1983 about indonesia’s exclusive economic zone, law number 32 of2009 concerning protection and management environment (uupplh). the complex regulation management in fishing law makes the development has become a part of the study of environmental law as well such as fish whose habitat occupies the rivers and ocean. automatically fishing will come into contact with the problem of preservation of the ecosystem and aquatic environment. if the fisheries sector can be managed properly and professionally, the result can increase the amount of fishing result significantly. the result can increase the amount of exports and http://creativecommons.org/licenses/by-nc-sa/4.0/ 110 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia provide an increase in national revenue and achieving the country’s ideals to create a just and prosperous society (suparrmono, 2011). however, these ideal is not an easy task to realize as we can imagine, according to a report indonesian institute of sciences (lipi) fishing production that has been utilized is only 5.4 million tons per year from the potential which should have been obtained at around 6.7 million tons per year. added from the oceanography research centre of the indonesian institute centre (p20 lipi) mentioned that indonesia is known as the largest marine mega-biodiversity in the world, with the value of marine wealth in indonesia reaching idr 1,722 trillion, but with the treat of illegal fishing indonesia losses around idr 101 trillion per year (masyhar, 2019). this result is due to the low utilization of fish resources caused by lack of knowledge and information about fish so the distribution of the fleet to be uneven, this has resulted in “over fishing” in certain area and “under fishing” in other area (manuputty et al, 2012; syarif, 2009). the low production of marine fish to date is also caused by how the fishermen catching the fish which still dependent on simple or traditional equipment with only small operating area just a few miles from the settlements, inability of local fishermen to utilize the resources resulting the local or foreign companies enters with more advanced ship technology. the presence of this company has certainly eliminated the potential that should be benefit the local fishermen (syarif, 2009). besides the exploitation which has eliminated the potential income of local fishermen, this company also committed violations that were not correspond with law number 45 of 2009 concerning the amendments to law number 31 of 2004 about fisheries, the practice violated the most are iuu practice (illegal, unregulated, and unreported) fishing on a large scale. therefore, it is undeniable that the factors which caused inadequate law enforcement in fisheries one in which is the facilities of the legal apparatus who conduct surveillance in indonesian fishing territory and the problems in the process of solving cases in fisheries are the factors that causing no maximum implementation of criminal law enforcement in fisheries. the implementation of criminal law enforcement in the fishing sector is very important and must be strategic in order to support fisheries development in a controlled environment and in accordance with the principles of fishing management, so that the fishing development can proceed continuously (dewi & firganefi, 2013). based on the background, the authors were interested in analyzing the law enforcement efforts in fisheries law implementation of the republic indonesia number 45 of 2009. method the research is normative legal research which is analyzes some laws and regulations concerning to fisheries crimes in indonesia. the research intended to examine some problems, especially concerning to how the philosophical and juridical foundation for natural resources, and how the normative review of fisheries criminal offenses and the liability of elements? furthermore, the research also examines how the operandi http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 111 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia criminal acts mode in the fisheries sector? and what are the strengths and weaknesses of law number 31 of 2004 against law number 45 of 2009? natural resources, protection and its law enforcement in indonesia i. the philosophical & juridical background on the protection and law enforcement of natural resources a. philosophical background biodiversity is gift from the almighty allah. natural resources is a strategic, life supportive, the foundation of national security, and have a variety of important values, both consumer value, productive value, environmental value, special value, and existence value in which, if managed wisely, planned, holistically-integrated and sustainable will give very big impact on the humans life and nature quality, strengthen the national defense, increase the national income, and prosper the people. philosophically, pancasila provides material content in the 1945 constitution of republic indonesia (nri 1945) as a grundgesetz to organize people’s welfare. this was elaborated in the management of natural resources, namely in article 33 paragraph (3) of the 1945 constitution of the republic indonesia which is the basis for controlling and managing the natural resources for the state to be used for the prosperity of the people. article 33 paragraph (3) states that “the earth, water, and other natural resources contained therein are controlled by the nation and are used for the prosperity of the people.” the provisions puts control over the natural resources, those were contained in land, water, and air by the nation. the natural resources can be used to support the national economy as much as possible to prosper the people. therefore, the management of the resources is constitutionally regulated in article 33 paragraph (3) of the 1945 constitution of republic indonesia. the phrase “controlled by the nation” implies that the nation has the full authority to regulate and administer all the natural resources, including water, mining, energy and other resources for the welfare of the people. based on this authority the government makes regulation and conducts managements of the resources. government is entrusted to regulate the utilization of the resources for the sake of the people and controls the utilization. in addition, because natural resources are life supportive, it must be preserved and developed so the source can still be remains and support the life of the people and other living creatures for the survival and improvement of the quality itself. the biodiversity in the form of living things and other abiotic objects itself is related and http://creativecommons.org/licenses/by-nc-sa/4.0/ 112 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia dependent with each other as united ecosystem. therefore all organisms and living creatures must be treated with same dignity. this perspective implies in the effort of conserving and utilizing the natural resources, the honor, fulfillment, and protection has to be treated equally to share the same right to live and develop. the right of all forms of living creature to live is a universal right that cannot be ignored. therefore, by adapting the heringa (2006), the nation must be able to realize the application and obedient of the ecological principles: 1. interpreting the principle of protection of the natural resources and their ecosystem as a part of the protection of human rights in constitution; 2. protect these rights and make appropriate efforts to protect the rights; 3. obey the law that has been made by the country itself (it means that the government is obliged to obey with the valid laws and regulations); 4. ensuring that the interest of every citizen to obtain sustainable life through conservation and utilization of the natural resources are more considered and treated in balance for sustainability, including to ensuring every citizen are guaranteed in their procedural rights and are compensated if their rights or ecosystem violated. 5. ensure that the conservation and utilization of the natural resources is carried out transparently and every citizen can participate actively or involved in every decision making and implementation. 6. the 1945 constitution of the republic indonesia, article 27 to article 34 guarantees that every indonesian citizen has the same rights and obligations, including in this case the right to utilize the natural resources and their ecosystems as well as obligations to protect and preserve them. these rights and obligations are carried out in a balanced manner for the preservation and prosperity of the nation and for the future life sustainability. b. juridical background based on the law, the conservation of the living natural resources and its ecosystem is a foundation of life and national defense, therefore its sovereignty and sovereign rights must be maintained. in the context of natural resources and their ecosystems located in the territory of indonesia which occupies between two continents and two oceans with tropical climate and weather and seasons that provide natural conditions and positions with a high strategic role as a place where the people and people of indonesia organize life social, national and state in all its aspects. therefore, the knowledge in carrying out the conservation and utilization of the natural resources and their ecosystems must refers to the knowledge of the archipelago, policies and national interests, benefits that are in harmony with nature, and sustainable development that provides prosperity for all the people of indonesia. natural resources and their ecosystems in an ecological explanation does not recognize territorial boundaries, both state and administrative regions. however, natural resources and their ecosystems which related to conservation management and utilization must be clear in terms of boundaries of the area of government http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 113 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia authority (between ministries and institutions), local government as mandated by article 18a of the 1945 constitution of the republic indonesia, as well as involving the community and the national private sector. therefore, the conservation and utilization of biological natural resources and their ecosystems must be in line with several relevant laws, as follows (dpr ri, 2017): 1. constitution number 27 of 2007 concerning management of coastal areas and small islands (state gazette of the republic indonesia of 2007 number 84, addition to the state gazette of the republic indonesia number 4739); 2. constitution number 32 of 2009 concerning environmental protection and management (state gazette of the republic indonesia of 2009 number 140, addition to the state gazette of the republic indonesia number 5059); 3. constitution number 45 of 2009 concerning amendment to constitution number 31 of 2004 concerning fisheries (state gazette of the republic indonesia number 154 of 2009, addition to the state gazette of the republic indonesia number 5073); 4. constitution number 32 of 2014 concerning maritime affairs (state gazette of the republic indonesia of 2014 number 294, supplement to the state gazette of the republic indonesia number 5603); 5. constitution number 37 of 2014 concerning soil and water conservation state gazette of the republic indonesia of 2014 number 299, supplement to the state gazette of the republic indonesia number 5608; 6. constitution number 5 of 1960 concerning basic regulations on agrarian principles; 7. constitution number 12 of 1992 concerning plant cultivation system (state gazette of the republic indonesia of 1992 number 46, supplement to the state gazette of the republic indonesia number 3478); 8. constitution number 5 of 1994 concerning ratification of the united nations convention on biological diversity (state gazette of the republic indonesia year 1994 number 41, supplement to the state gazette of the republic indonesia number 3556) ii. fisheries criminal acts and responsibility of legal subjects a. normative review of fisheries criminal acts criminal punishment is a basic understanding in criminal law (normative juridical). crime can be interpreted legally or criminologically. crime or evil deeds in the sense of normative juridical is an act as manifested in-abstracto in criminal regulations. while crime in the sense of criminology is a human action that violates the norms that live in society concretely. criminal action is a human behavior which will be threaten by the law, so generally it is a behavior that is prohibited by the law (andrisman, 2010). fisheries are activities related to the management and utilization of fish resources (tribawono, 2011; tarigan, 2018). many communities misuse fishing activities to be an http://creativecommons.org/licenses/by-nc-sa/4.0/ 114 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia advantage for themselves without thinking about the marine ecosystem, for example by using prohibited fishing gear that causes damage to the marine ecosystem. nowadays, the fisheries crime is in the spotlight of the people due to the rise of its activities concerning fisheries. examples of fishing crimes are fishing with prohibited tools, fish bombing, illegal fishing businesses and many other cases. in indonesia, according to indonesian constitution number 9 of 1985 and indonesian constitution number 31 of 2004, activities that are included in fisheries begin from preproduction, production, processing to marketing carried out in a fisheries business system (supriadi & alimuddin, 2011). the fishing crimes often occur in fishing business, fishing crime refers based on constitution number 31 of 2004 and constitution number 45 of 2009. in constitution number 31 of 2004 concerning fisheries, several articles that regulate criminal acts have been included (offense) in the field of fisheries. there are 2 (two) categories regarding fishing crime, namely the violation category and the crime category (castro & huber, 2003). judges who will try violations in the field of fisheries are also special treatment and they are ad hoc judges consisting of two ad hoc judges and one career judge. trial hearings can be carried out in absentia. similar with detention, it is specifically regulated. there are 17 articles regulating the formulation of fishing offenses from article 84 to article 100. article 84 paragraph (1) concerning the capturing and cultivation of the fish without a permit with a maximum penalty imprisonment of 6 years and a maximum fine of 1.2 billion rupiah. paragraph (2) of that article also determines the subject of the captain or fishing leader of the republic indonesia to catch fish using chemicals, biological materials, explosives, tools and / or methods, and / or buildings that can harm and / or endanger the preservation of fish resources and/or the environment, will be punished with a heavier criminal threat, a maximum of 10 years in prison and a fine of 1.2 billion rupiah. in article 84 paragraph (1) mentions that the subject of the owner of a fishing vessel, owner of a fishing company, person in charge of a fishing company, and / or operator of a fishing vessel doing the same thing in paragraph (2) with the threat of a 10-year prison sentence equal to paragraph (2) but with a higher penalty, which is two billion rupiah. paragraph (4) of the article mentions that the subject of the owner of the fish cultivation company, and/or the person in charge of the fish cultivation company, and/or the person in charge of the fish cultivation companies that deliberately carrying out fish cultivation in the territory of the republic indonesia fishing management using chemicals and so on are treated the same as paragraph (3) with the same criminal threat, which is 10 years and fines are also the same at the paragraph (3). article 85 concerning any person who is intentionally in the territory of the republic indonesia fish management owns, controls, carries, and/or uses a fishing gear and/or a fishing aid that is on a fishing vessel that are not in accordance with the specified size, fishing gear that are not in accordance with the requirements, or standards set for certain types of equipment and/or prohibited fishing gear. the maximum criminal punishment is two billion rupiah. article 86 paragraph (1) concerning pollution and/or damage to fishing resources and/or the environment with a maximum penalty of 10 years in prison and a http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 115 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia maximum fine of two billion rupiahs. article 86 paragraph (2) concerning fish cultivation in which can endanger the resources and/or the environment and/or human health, with a maximum penalty of six years in prison and a maximum fine of one billion five hundred million rupiah. article 86 paragraph (3) concerning cultivation of producing of genetically engineered fish which can endanger fish resources and/or the environment and/or human health, with a maximum criminal threat of six years in prison and a maximum fine of one billion five hundred million rupiah. article 86 paragraph (4) concerning the use of drugs in fish cultivation that can endanger the resources and / or the environment of the resources and/or human health, with the same criminal threat as paragraph (3). article 87 paragraph (1) concerning acts of damaging germplasm (germ cells) related to fishing resources with a maximum criminal punishment of two years imprisonment to a maximum of one billion rupiah. article 88 concerning any person who intentionally enters, excludes, procures, distributes and/or maintains fish that harms the community, cultivation, fishing resources, and/or the environment into and / or out of the territory of the republic of indonesia fishing management as referred to in article 16 paragraph (1), shall be punished to a maximum imprisonment of 6 (six) years and a maximum fine of rp 1,500,000,000.00 (one billion five hundred million rupiah). article 89 regarding every person who handles and manages fish that does not meet or does not apply the eligible requirements for fish processing, quality assurance system, and safety of the fish products as referred to in article 20 paragraph (3), shall be punished to a maximum imprisonment of 1 (one) year and a maximum fine of rp.800,000,000.00 (eight hundred million rupiah). article 90 regarding every person who intentionally imports or releases fish and / or fishing products from and / or to the territory of the republic of indonesia that is not qualified with a health certificate for human consumption as referred to in article 21, shall be punished to a 1 (one) year in prison and a maximum fine of rp. 800,000,000.00 (eight hundred million rupiah). article 91 regarding any person who intentionally uses raw materials, supplementary materials, additional materials, and / or tools that can endanger human health and / or the environment in carrying out the handling and processing of the fish as referred in article 23 paragraph (1), shall be sentenced to an imprisonment of a maximum 6 (six) years and maximum fine of rp 1,500,000,000.00 (one billion five hundred million rupiah). article 92 regarding any person who intentionally in the territory of the republic indonesia fishing management carries out a fishing business in the field of catching, cultivating, transporting, processing and extorting fish, which does not have siup (trading business license) as referred to in article 26 paragraph (1) (one), sentenced to a maximum imprisonment of 8 (eight) years and a maximum fine of rp 1,500,000,000.00 (one billion five hundred million rupiah). article 93 paragraph (1) regarding every person who owns and / or operates an indonesian-flagged fishing vessel conducts fishing in the territory of the republic of indonesia fisheries management and / or in the high seas, and does not have sipi (fishing license) as referred to in article 27 paragraph (1), shall be sentenced to a http://creativecommons.org/licenses/by-nc-sa/4.0/ 116 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia maximum imprisonment of 6 (six) years and a maximum fine of rp 2,000,000,000.00 (two billion rupiah). article 93 paragraph (2) concerning every person who owns and / or operates a foreign-flagged fishing vessel conducts fishing in the territory of the republic indonesia fishing management that does not have sipi as referred to in article 27 paragraph (2), shall be sentenced to a maximum imprisonment of 6 (six) years and a maximum fine of rp 20,000,000,000.00 (twenty billion rupiah). article 94 regarding every person who owns and / or operates a fish carrier ship in the fishing management area of the republic of indonesia carrying out fishing transportation or related activities that do not have sikpi (fish transport boat permit) as referred to in article 28 paragraph (1) shall be sentenced to a maximum imprisonment of 5 (five) years and a maximum fine of rp 1,500,000,000.00 (one billion five hundred million rupiah). article 96 regarding every person who operates a fishing vessel in the area of indonesian fishing management and does not register his fishing vessel as an indonesian fishing vessel as referred to in article 36 paragraph (1) shall be sentenced to a maximum of 1 (one) year imprisonment and a maximum fine of rp. 800,000. 000.00 (eight hundred million rupiah). article 97 paragraph (1) concerning the captain who operates a foreign-flagged fishing vessel that does not have a fishing license while in the territory of the indonesian fishing management does not keep the fishing gear in the ship hold as referred to in article 38 paragraph (1), shall be punished to a maximum fine of rp. 500,000,000.00 (five hundred million rupiah). article 97 paragraph (2) concerning the captain who operates a foreign-flagged fishing boat that has a fishing license with 1 (one) type of fishing gear at a certain part of eez carrying another fishing gear as referred to in article 38 paragraph (2) ), convicted with a maximum fine of rp 1,000,000,000.00 (one billion rupiah). article 97 paragraph (3) concerning the captain who operates a fishing vessel that has a foreign flag which has a fishing license, but does not keep the fishing gear in the hold while outside the fishing area which is permitted in the management area of the fisheries of the republic of indonesia as referred to in article 38 paragraph (3), shall be punished to a maximum fine of rp. 500,000,000.00 (five hundred million rupiah). article 98 regarding the captain who do not have fishing boat permits issued by the syahbandar as referred in article 42 paragraph (2), shall be sentenced to a maximum of 1 (one) year imprisonment and a maximum fine of rp 200,000,000.00 (two hundred million rupiah). article 99 regarding every person conducting fishing research in the territory of the republic of indonesia fishing management that does not have a permit from the government as referred to in article 55 paragraph (1), shall be sentenced to a maximum imprisonment of 1 (one) year and a maximum fine of rp 1,000,000,000,00 (one billion rupiah).\ article 100 regarding every person who violates the regulations as referred in article 7 paragraph (2), shall be punished to a maximum fine of rp. 250,000,000.00 (two hundred and fifty million rupiah). article 101 concerning criminal acts as referred to in article 84 paragraph (1), article 85, article 86, article 87, article 88, article 89, article 90, article 91, article 92, article 93, article 94, article 95, article 96 which is carried http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 117 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia out by the corporation, the criminal charges and penalties imposed on its management and criminal penalties are plus 1/3 (one third) of the criminal sentences (hamzah, 1986). b. elements of criminal charge according to our law there is no error without breaking the law, this theory is then formulated as: no criminal without error or geen starf zonder schuld or keine strafe ohne schuld (german) or actus non facit reum nisi mens sist rea or actus reus mens rea (latin). this principle is the basis of criminal liability and is not found in the law. there are also other postulates that read nemo punitur sine injuria, facto seu de falta. meaning, no one is punished unless he does something wrong (hiariej, 2014). talking about criminal liability, it means that talking about people who commit criminal acts. criminal law separates between the characteristics of acts that are used as criminal acts and the characteristics of people who commit to them. people who commit criminal acts are not necessarily sentenced to criminal, depending on whether the person can be held accountable or not, conversely, someone who is convicted of a crime was certainly committed a criminal act and can accounted for. an important element of criminal liability is the mistakes (hiariej, 2014). on the other hand there are also those who say that the current criminal liability system does not absolutely see an error, but also has seen an absence of error. the development of the criminal liability system implemented has causes a change from the principle of error (liability on fault) to the principle of the absence of errors (liability without fault). the principle of the absence of the error is then transformed into a system of absolute liability (strict liability), liability replacement system (vicarious liability), and a corporate liability system (corporate liability) (amrani & ali, 2015). one of the basic considerations of implementing the system of criminal liability without error is to facilitate in the matters of verification. if criminal law must also be used to deal with such complex problems, then it is time for the system without error to be used in certain cases, especially those related to violations of regulations regarding crimes that are mild (public welfare offenses, regulatory offences, mala prohibita). because, proofing of the element of error associated with the characteristics of crime is not easy. so, the acceptance of the system of criminal liability without error manifested in the form of strict liability, vicarious liability, and corporate liability in the context of reforming indonesian criminal law is a way of solving problems related to the difficulty of proving errors in criminal liability (amrani & ali, 2015). another case with the opinion expressed by simons, simons argues that the definition of criminal liability is related to a psychological state, so that the application of a criminal provision from the public and personal point of view is considered appropriate (de toerekeningsvatbaarheid right worden opgevat als eene zoodanige psychische gesteldheid, waarbij detoepassing van een strafmaatregel van algemeen en individueel standpunt gerechtvaardig is). simons continues that the basic responsibility in criminal law is a certain psychological state of the person who commits a criminal act and the http://creativecommons.org/licenses/by-nc-sa/4.0/ 118 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia relationship between the condition and the act carried out in such a way that the person then can be denounced for committing the act (hiariej, 2014). in general, criminal liability leads to the conviction of perpetrators with the objectives to determine whether the defendant or suspect can be held accountable for criminal acts he has made or not. certainly this person must be able to be responsible for the actions he did, understanding the ability of responsibility according to some views as described below (ilyas, 2012). according to pompe, the capability of being responsible must have the following elements (kahfi, 2016): a. ability to think (psychisch) maker (dader) that allows him to take control of his mind, which allows him to determine his actions. b. therefore, he can determine the consequences of his actions. c. be able to decide his will according to his mind. van hamel argues that the ability to be responsible is a state of psychological normality and maturity that has three kinds of abilities: a. to understand the environment of the reality of one's own actions. b. to realize his actions as something that is not allowed by society, and c. against his actions can determine his will. people's requirements who can be accounted for according to g.a. van hamel is as follows: a. the soul of a person must be in such condition that he understands or realizes the value of his actions b. one must realize that his actions according to social procedures are prohibited, and c. people must be able to determine their will to their actions. criminal liability leads to criminal prosecution, if it has committed a crime and meets the elements specified in the constitution. seen from the point of occurrence of a prohibited act (required) a person will be held accountable for the act if the action is illegal, then if viewed from the standpoint of responsibility then only someone who is capable of being liable can be held liable for criminal liability. then it can be concluded that the elements of criminal liability are as follows (kahfi, 2016): a. able to be responsible b. the existence of error c. there is no excuse for forgiveness. as for the types of criminal penalties in the field of fisheries only recognize the main criminal, while additional penalties are not regulated in the fishing law. regarding the main criminal sanctions that can be handed down by judges in fishing cases is in the form of imprisonment and fines. although the fishing law does not specifically regulate additional crimes, fisheries court judges may impose additional crimes under article 10 of the criminal code. main charge in the criminal provisions of the fishing law is passed cumulatively, both aimed at crime and violations. in the cumulative sentence, the imprisonment with a fine applied at the same time, there is no reason for the judge not to impose both of these crimes, nor can the judge choose one of the sentences to be handed down, but rather must impose both the principal penalties. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 119 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the existence of a sanction is an effective means to reduce the occurrence of violations of the provisions contained in the field of fisheries, especially fish hauling because sanctions are imposed if they violate the provisions that have been set previously, then sanctions can be in the form of administrative sanctions and other sanctions. the criminal justice process and the criminal justice system contain an understanding whose the scope is related to the criminal justice mechanism. loqman (2002) distinguishes the notion of the criminal justice system from the criminal process. the system is a series of elements or factors that are interrelated with one another so as to create a mechanism such that it reaches the goal of the system. while the criminal justice process, which is a process since a person is alleged to have committed a crime, until the person is released again after carrying out the punishment that has been given into him. the legal process which conducted after the investigation of the fishing criminal cases is a legal process in the form of public prosecution carried out by legal institutions and conducted by legal institutions called prosecutors. the legal process showed that the fighting whether a person is suspected of committing a fishery crime or not depends on the ability of the public prosecutor to prove his claim before the court. in article 74 of the fishing law, it is stated that the prosecution of criminal acts in fisheries is carried out based on applicable procedural law, unless not specified in this law. the fishing law, not only regulates material criminal law, but also regulates specific formal criminal law (lex specialist). the modus operandi of criminal acts in the field of fisheries i. fisheries crimes and recent condition in indonesia a. how fisheries crimes occurred in indonesia? the rise of the practice of fishing violations that has occurred in indonesian waters so far has provided substantial losses. the state loss due to fishing crime in 2005 reached 30 trillion rupiah in a year. it was also said that the level of loss reached 25% of the total potential of the fisheries owned, meaning 25 times 6.4 million tons (subagyo, 2005). the rampant practice of criminal acts in the field of fisheries that occur in indonesian waters was because the lack of supervision, this is caused by the lack of facilities and infrastructure and supervision facilities, human resources supervision is still inadequate especially in terms of quantity, incomplete regulations, weak coordination between law enforcement agencies both central and regional, licensing has not been issued, this is due to falsification of permits and license doubling and weak law enforcement so that the pride of legal authority decreases; http://creativecommons.org/licenses/by-nc-sa/4.0/ 120 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia injustice to the community and also the rampant ness of illegal activities in the fishing sector (wahyuningtyas, 2015; lewerissa, 2018). the case of illegal fishing is the most frequent case in criminal offenses in the field of fisheries, many illegal vessels with foreign flags such as vietnam, thailand, malaysia, china and taiwan often doing illegal fishing. the most frequent illegal fishing activity in the indonesian fishing management area is the fish stealing by foreign fishing vessels (kia) originating from several neighboring countries. although it is difficult to map and estimate the level of illegal fishing that occurs in wpp-ri, but from the results of surveillance conducted in (2005-2010) it can be concluded that illegal fishing by mch mostly occurs in eez and also quite a lot occurs in the waters of the islands (archipelagic state). in general, the types of fishing gear used by illegal fishing vessels in indonesian waters are kinds of productive fishing equipment such as purse seine and trawl. illegal fishing activities are also carried out by indonesian fishing vessels (kii) (rudi, 2006). several modes/types of illegal activities that are often carried out by kii (indonesian fish ships), are includes: fishing without a permit (fisheries business license (siup) and fishing license (sipi) or fish transport boat permit (sikpi), having the permit but violates the provisions as stipulated (violation of fishing area, violation of fishing gear, violation of adherence to base), falsification/manipulation of documents (procurement documents, vessel registration and licensing), transshipment at sea, does not activate the transmitter (specifically for vessels required installing transmitters) and destructive fishing by using chemicals, biological materials, explosives, tools and/or methods, and/or buildings that can endanger the preservation of fish resources. law enforcement is a series of activities in the context of implementing legal provisions both in terms of enforcement and prevention that cover all technical and administrative activities carried out by law enforcement officers so that they can create a safe, peaceful and orderly atmosphere to obtain legal certainty in the community, in the context of creating conditions so that development in all sectors can be carried out by the government. law enforcement is a term that has diversity in definition. according to satjipto rahardjo, law enforcement is defined as a process realizing the legal desires, namely the thoughts of legislative bodies that are formulated and stipulated in legal regulations which then become reality. from the subject point of view, law enforcement has a broad and narrow meaning. in a broad sense, the process of law enforcement involves all legal subjects in every legal relationship. in a narrow sense, law enforcement is only interpreted as an effort by certain law enforcement officers to guarantee and ensure that the rule of law runs as it should. the definition of law enforcement can also be viewed from the point of view of the object of the law. in this case, the understanding also includes broad and narrow meanings. in a broad sense, upholding the law also includes the values of justice contained in the formal rules and values of justice that live in society. in the narrow sense, law enforcement only involves formal and written enforcement of regulations. normatively, the existence of laws and regulations concerning criminal acts in the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 121 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia field of fisheries with all the regulations and their implementation is to make good management of fisheries business, and the overall welfare of the community, especially for fishermen. the philosophical basis for regulating the use, management and conservation of fish resources in the sea is to strengthen peace, security, cooperation, and friendly relations between all nations of the world. this can be understood by the principle of freedom of the sea (article 87 paragraph (1) unclos 1982) which states that the seas are open to all countries, both coastal and non-coastal countries. in fact this has the potential to cause conflicts between the international communities. freedom on the seas to catch fish, with the 1982 unclos the rights of all countries, namely for their citizens who catch fish in the open sea are limited by the conditions listed in section 2 of unclos 1982 and obligations under article 87 paragraph (2). the modus operandi of indonesian illegal, unregulated, and unreported fishing (iuu) activities as stipulated in perma no. 01 of 2007 concerning fisheries courts, can be categorized into 4 (four) groups, including: a. foreign fishing ship (kia), a foreign-flagged ship carrying out fishing activities in indonesian waters without documents. b. indonesian-flagged fishing vessels ex-kia with fake documents (original but fake) or no permit documents. c. indonesian fish boat (kii) with fake documents (officials issued but not authorized or fake documents) d. indonesian fish boat (kii) without any documents at all, which means catching fish without permission. the modes used in committing criminal acts in fisheries is the "illegal license mode”, which means misusing the illegal license and or method of obtaining a permit from the ministry of maritime affairs and fisheries of the republic of indonesia which in an un-appropriate way (misbach, 1993). according to ivan rishky as the chairman of the press forum observer of national fisheries violations (fp4n), the disclosure of the illegal license modes after the data requested officially from several fishing agencies and companies as well as the results of investigations in the field which reviewed then found practices that have harmed the country hundreds trillion rupiah. fishing vessels owned by fishing companies that operate in indonesia, mostly only have formal permission from the ministry of maritime affairs and fisheries of the republic of indonesia which obtained in an easy way, but after importing foreign vessels, they (fishing companies operating in indonesia) do not build or develop its infrastructure which has resulted the catching centres (arafura sea, natuna sea, banda sea, maluku sea and papua sea) remains poor. the permit is obtained in ways that are not in accordance with the mechanism or in accordance eight the applicable rules. based on data from the illegal fishing eradication task force (task force 115) ministry of maritime affairs and fisheries (kkp) of the republic of indonesia led by minister susi pudjiastuti, from data of 2017 to 2018, there were 134 illegal fishing cases, of which 41 cases have received a court decision with legal force permanent. with the number of 633 vessels that have been captured, there are 366 indonesianflagged fishing vessels and 267 foreign fishing vessels. then found 60 illegal fads in http://creativecommons.org/licenses/by-nc-sa/4.0/ 122 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia seram sea. the sts-50 was then captured which is an international fugitive for committing fishing crimes in various countries (kkp ri, 2019). the data was reinforced by the results of the exposure of indra rosandry's paper as the head of sub-directorate of politics and law enforcement cooperation of the directorate of law and political and security agreements of the directorate general of law and international treaties of the indonesian ministry of foreign affairs, in his material entitled "uuf and transnational organized crime: international law perspective and multilateral practices" and exposure from bebeb ak nugraha djundjunan as director of law and territorial treaties of the ministry of foreign affairs of the republic of indonesia, with his presentation entitled "determination of the sovereignty of indonesian water areas", mentions that the international convention related with crimes in the field of fisheries, described on table 1 (rosandry & djundjunan, 2019). table 1 the international convention related with crimes in the field of fisheries fisheries management and combatting fisgeries crimes combating connected crimes to the fisheries sector countering illicit trade in the fisheries sector 1. un convention on the law of the sea (unclos) 2. united nations fish stocks agreement (unfsa) 3. fao compliance agreement 4. port state measures agreement (psma) 5. united nations large-scale pelagic driftnet fishing moratorium 6. fao code of conduct for responsible fisheries 7. international plan of action to prevent, deter, and eliminate illegal, unreported and unregulated fishing (ipoa-iuu) 1. united nations convention against transnational organized crime (untoc) 2. united nations convention against corruption (uncac) 3. ilo work in fishing convention no. 188 4. convention on combating bribery of foreign public officials in international business transactions (oecd anti-bribery convention) 5. international convention for prevention of pollution from ships (marpol) 6. international convention on arrest of ships 7. international convention on mutual administrative assistance for the prevention, investigation and repression of customs offences (nairobi convention) 1. convention on international trade in endangered species of wild fauna and flora (cites) 2. united nations convention against illicit trafficking in narcotic drugs and psychotropic substances (drug convention) source: rosandry & djundjunan (2019). b. strengths and weaknesses of indonesian fisheries act http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 123 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia indonesian fisheries act also has some strengths and weakness, especially in certain circumstances. the following table (see table 2), explains the advantages and weaknesses of these act. table 2 advantages & weaknesses of indonesian fisheries act no advantages weaknesses 1 a. that law no. 31 of 2004 concerning fisheries is sufficient to accommodate all aspects of fishing resource management and has been able to anticipate the development of legal needs and technological developments in the framework of fisheries resource management. b. law no. 31 of 2004 has been conducted fisheries management based on the principles of benefits, justice, partnerships, equitable distribution of integration, openness, efficiency, and sustainability. c. management of law no. 31 of 2004 concerning fisheries is done by taking into account of the division of authority between the central government and regional governments d. institutional strengthening in the field of fishing ports and fishing vessels has been realized e. management and utilization of fish resources, both those located in indonesian waters, the indonesian exclusive economic zone, and the high seas have been controlled through fostering permits with regard to national and international interests in accordance with the capabilities of available fish resources. f. fisheries management that has met the elements of sustainable development, which is supported by fisheries research and development and integrated control g. fisheries supervision has been carried a. still not be able to anticipate the development of technology and the development of legal needs in the context of management and utilization the potential of fishing resources and have not been able to answer the problem. therefore it is necessary to make changes to several substances, related to management aspects, bureaucracy, and legal aspects. b. aspects of fisheries management including the absence of coordination mechanisms between agencies related to fisheries management. while in the bureaucratic aspects, there are conflicts of interest in fisheries management. c. legal aspects including law enforcement issues, the formulation of sanctions, and the relative jurisdiction or competence of the district court for criminal offenses in the fishing sector that occurs outside the authority of the district court. http://creativecommons.org/licenses/by-nc-sa/4.0/ 124 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia out h. fisheries management by increasing education and training and counseling in the field of fisheries has been carried out and realized. 2 in law no. 45/2009 as an amendment law no. 31/2004, there is also no formulation and regulation regarding the "utilization of fish resources" element from the definition concept of "fisheries". the issue of how not clear the position of the regulation on the matter of utilization of fish resources, in addition to being a weakness of the preparation of regulations, on the other hand it will affect the management of fisheries management in indonesia. conclusion the paper highlighted that the implementation of the law of the republic of indonesia number 31 of 2004 in conjunction with the law of the republic of indonesia number 45 of 2009 concerning fisheries still does not provide legal certainty that is fair to the wider community. this can be seen in the appliance of sanctions that are only imposed on perpetrators such as captain and kkm, while ship owners, company owners and ship operators, even officials or officers who are proven to help or participate in committing criminal acts of fisheries get lighter sanctions. fisheries courts are formed within the general courts, with the consideration of the establishment of specialized judiciary bodies under the general courts it is expected to be more possible for the implementation of the principle of simple, fast and low cost. in the world of indonesian fisheries business, there are still many violations of law (fishing crime), such as falsification of fishing vessel licenses which are carried out in various modes, the use of fishing gear that is not environmentally friendly, transhipment fishing ground violations, and others. however, the research suggests that in terms of prosecution, to make it is not only possible to use a repressive approach, but also to use a restorative approach, to recover victims who have been affected by corporate behavior engaged in fisheries, in this case is to recover the conditions of traditional fishermen so that these fishermen can return to prosperity. it is also necessary to expand the jurisdiction of the fisheries court so that it covers the entire territory of the republic of indonesia fishing management. furthermore, amendments of constitution number 31 of 2004 concerning fisheries should also lead to favoring small fishers and small-scale fish breeders, among others in the aspects of licensing, the obligation to apply provisions regarding the monitoring system of fishing vessels, fisheries tax, and the imposition of criminal sanctions. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 125 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references al-khawarizmi, d.a. 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(2006). hukum internasional. bandung: pt refika aditama. rosandry, i., & djundjunan, b.a.k.n. (2019). kejahatan perikanan dalam perspektif kejahatan transnasional terorganisir. paper, presented on national seminar at faculty of law universitas negeri semarang, 27 september 2019. subagyo, p.j. (2005). hukum laut indonesia. jakarta: pt rineka cipta. supriadi & alimuddin. (2011). hukum perikanan indonesia. jakarta: sinar grafika offset. supramono, g. (2011). hukum acara pidana dan hukum pidana di bidang perikanan. jakarta: pt rineka cipta. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 127 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia syarif, l.m. (2009). promotion and management of marine fisheries in indonesia, on towards sustainable fisheries law: a comparative analysis, gerd winter (ed) iucn environmental policy and law paper. tarigan, m. (2018). implementation of countermeasures effort of illegal fishing in indonesia (case study on sinking the fv viking vessel). jils (journal of indonesian legal studies), 3(1), 131-146. https://doi.org/10.15294/jils.v3i01.23213 tribawono, d. (2002). hukum perikanan indonesia. bandung: pt. citra aditya bakti. united nations (1982). united nation convention on the law of treaties (unclos) 1982. wahyuningtyas, y. w. (2017). penanganan tindak pidana di bidang perikanan berdasarkan peraturan perundang-undangan di indonesia. jurnal rechtens, 6(1), 32-45. http://ejurnal.uij.ac.id/index.php/rec/article/viewfile/197/191 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jils.v3i01.23213 http://ejurnal.uij.ac.id/index.php/rec/article/viewfile/197/191 128 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote in every species of fish i've angled for, it is the ones that have got away that thrill me the most, the ones that keep fresh in my memory. so i say it is good to lose fish. if we didn't, much of the thrill of angling would be gone. ray bergman http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 369 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article penal mediation as alternative dispute resolution: a criminal law reform in indonesia anggita anggraeni1 1 postgraduate program, master of law, universitas negeri semarang  anggitaagrn96@gmail.com cited as anggraeni, a. (2020). penal mediation as alternative dispute resolution: a criminal law reform in indonesia. journal of law and legal reform, 1(2), 369-380. doi: https://doi.org/10.15294/jllr.v1i1.35451 abstract in the minor crime, the solving of cases process through formal process in the court is the process that is taking much cost and long time is not suitable with detriments of the crime impact, these all are contrary with the principal fast, simple and un expensive judicature. writing this thesis aims to know the legal certainty of implementing penal mediation as an alternative dispute resolution and prospects of applying alternative dispute resolution in the indonesian criminal justice system. the approach used in this research is a qualitative research approach that produces descriptive data in the form of people's written or oral words and observable behavior. the type of research that will be used in this research is doctrinal research. penal mediation is an alternative form of resolving disputes outside the court (commonly known as adr or "alternative dispute resolution" and some call it "appropriate dispute resolution"). penal mediation for the first time is known in positive legal terminology in indonesia since the issuance of kapolri no. pol: b / 3022 / xii / 2009 / sdeops dated december 14, 2009 concerning handling cases through alternative dispute resolution (adr), even though they are partial. in essence, the principles of mediation of the penalties referred to in this kapolri letter emphasize that the settlement of criminal cases using adr, must be agreed by the parties that litigate, but if there is no new agreement resolved in accordance with applicable legal procedures in a professional and proportional manner. keyword: penal mediation, restorative justice, alternative dispute resolution submitted: 13 november 2019, revised: 23 january 2020, accepted: 27 january 2020 journal of law and legal reform (2020), 1(2), pp. 369-380. doi: https://doi.org/10.15294/jllr.v1i2.35406. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 370 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 369 table of contents ………………………………………………………….. 370 introduction …………………………………………………………………. 370 method …………………………………………………………………………… 371 legal certainty application of alternative dispute resolution ……………………………………………………………………... 372 prospects of applying alternative dispute resolution in the indonesian criminal justice system ………….…………. 375 conclusion …………………………………………………………………….. 377 references ……………………………………………………………………... 378 introduction when we talk about law, we will talk about human relations. talking about human relationships, we talk about justice. thus every discussion about the law, whether clearly or vaguely, is always talk about justice too. as prof. said satjipto rahardjo that we cannot talk about the law only to its form as a formal building, but we also need to see it as an expression of the ideals of justice for the people (abdullah, 2015). in the last few years in the world of indonesian justice, there has often been a process of case resolution which is considered not to fulfill the sense of justice that lives in the community. like the case of grandmother minah in banyumas who was 55 years old was accused of taking 3 pieces of cocoa beans on a plantation owned by pt rumpun sari antan then was proven legally and convincingly violated article 362 of the criminal code concerning theft so that grandma minah was sentenced to 1 month 15 days with a trial period during 3 months. in batang there is also a case of manisih who took 12 thousand kapok fruit charged with article 363 paragraph 1 of the criminal code and sentenced to 24 days in prison. there were also cases of basar and kholil in kediri who were accused of stealing watermelons sentenced to 15 days with a 1-month trial for being proven to meet the elements stipulated in article 363 of the criminal code. the penal system in the criminal code still focuses on the prosecution of perpetrators of crime, explicitly illustrated by the types of crimes regulated in article 10 of the criminal code, namely in the form of principal and additional crimes. the penal system contained in article 10 of the criminal code in essence still adheres to the retributive paradigm, which is to provide a reward for the crimes committed by the perpetrators. retributive paradigm the aims to provide a deterrent effect so that the perpetrators do not repeat their crimes again and prevent or prevent the community from committing crimes. the use of the retributive paradigm has not been able to recover the loss and suffering suffered by the victim. although the perpetrator has been found guilty and received a sentence, the condition of the victim cannot return to normal. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 371 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia often the process of resolving cases through litigation channels like the example above is considered not to reflect a sense of justice that is in accordance with the community because such formal settlement processes only focus on imposing penalties for the offender. though the process that is passed also requires time and costs that are not proportional to the value of the losses incurred. in addition, victims' rights are often ignored because they are considered represented by the state through public prosecutors. the current penal code only does not or does not pay enough attention to victims. the protection of victims in terms of providing compensation is often ignored (andrew, 2001). such formal settlement of cases seems to be less effective in resolving cases of minor categories of criminal acts considering that conventional processes of this kind require a rather long and long time and sometimes are not complicated compared to the value of the goods in question. in addition, the formal settlement only focuses on punishing perpetrators while the rights of victims are often ignored. because the place of victims and the community in the system are considered to be represented by the state through the public prosecutor. for this reason, an alternative case settlement is needed, namely by using the mediation of penalties which is an embodiment of the concept of restorative justice. justice in restorative justice requires that efforts be made to recover or recover losses or consequences resulting from criminal acts and the perpetrators, in this case, are given the opportunity to be involved in the recovery effort. all of that in order to maintain public order and maintain fair peace. so in mediating the victim's and perpetrator's penalties, dialogue can find out what the victim's wishes are and the perpetrator wants to be responsible for fulfilling the wishes of the victim so that a fair and balanced agreement is reached. this paper examines and analyzes two main point, first, concerning legal certainty of implementing penal mediation as an alternative dispute resolution, and second, the prospects of applying alternative dispute resolution in the indonesian criminal justice system. method the approach used in this research is a qualitative research approach that produces descriptive data in the form of people's written or oral words and observable behavior. the type of research that will be used in this research is doctrinal research. normative legal doctrinal research examines law in its position as the norm ( das sollen). data collection techniques used are literature studies conducted by inventorying and quoting legal science literature books, statutory provisions, as well as scientific essays and lecture notes that are related to writing with the problem to be discussed. the data analysis technique used in this research is the interactive model of analysis. http://creativecommons.org/licenses/by-nc-sa/4.0/ 372 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia legal certainty application of alternative dispute resolution the criminal justice system is tasked with enforcing the law, aimed at tackling, preventing or allowing and reducing crime or criminal law violations. according to bassiouni, quoted by barda nawawi arif and quoted again by faal that the objectives to be achieved by the criminal law or criminal justice system generally manifested in social interests, namely: (m. faal, 1991) 1. maintenance of an orderly society 2. protection of citizens from crime, loss or unjustified harm done by others. 3. re-socialize (resosoalisasi) lawbreakers. 4. maintain or maintain the integrity of certain basic laws regarding social justice, human dignity and individual justice. in the indonesian criminal justice system, formal procedures in the settlement of criminal cases have been regulated. however, the existing methods do not seem to be effective in reducing the level of crime, even convicts can still commit crimes from behind the prison. here it is impressed that prison has become a school of crime and is very vulnerable, especially for perpetrators of minor crimes who can learn more serious crimes. in addition, the formal settlement only focuses on punishing perpetrators while the rights of victims are often ignored. because the place of victims and the community in the system was taken over by the institution through the public prosecutor. considering indonesia as a state of law, the principle of legal certainty is important. every act that violates the rules must be processed according to the applicable formal law. however, in practice, this principle of legal certainty often clashes with the principle of legal justice (mohammad, azman, & anderstone, 2019). when an act is declared wrong by existing regulations and requires a formal problemsolving process it often does not reflect a sense of justice in accordance with the community. not to mention when the position of the victim and the victim's family who were considered to have been represented by the state through the public prosecutor were not included in the case settlement process and even tended to be forgotten. this condition has implications for two fundamental things, namely the lack of legal protection for victims and the absence of judges' decisions that fulfill a sense of justice for victims, perpetrators and the wider community (efa rosdiah nur, 2016). actually, there is a paradigm in the punishment of restorative justice in the settlement of criminal cases with a mild category. some legal experts put forward the notion of restorative justice with different definitions but in principle contain the same meaning, a concept of thought related to the criminal system which not only focuses on the need and sentence imposed on the offender but also pays attention to and involves the victim and his community (community). set aside with the working mechanism of the criminal justice system currently in force (marlina, 2009: 180). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 373 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia for that reason, the concept of restorative justice is often presented as an alternative solution to cases that are more human in nature by removing sanctions from the judicial process. in the view of restorative justice, the interests of victims are highly considered. where the victim and the perpetrator must dialogue to find out what the wishes of the victim and the perpetrators want to be responsible for fulfilling the wishes of the victim so that a fair and balanced agreement is reached. principles of restorative justice:(choi, bazemore, & gilbert, 2012) 1. justice must be able to recover those who have been injured; 2. every party affected by crime (victim) has the opportunity to participate fully in law enforcement; 3. the role of the government is only to maintain public order. whereas the role of the community is to build and maintain peace; in addition to the principle, there are also some characteristics of the restorative justice concept, as follows: 1. meeting opportunities for victims, perpetrators and community leaders to discuss the consequences of a crime and the solution; 2. compensation it is expected that the offender can correct the consequences; 3. reintegration it is hoped that the relationship between the perpetrators, victims and social life can be restored; 4. participation provide opportunities for people who are asking to do, encourage and participate to participate in discussions and provide remedial solutions for the consequences; one form of case resolution with the restorative justice paradigm is the mediation of penalties. victim mediation is a process that is assisted by a neutral and impartial third party so that victims and perpetrators communicate with one an other in hopes of reaching an agreement (matsumoto, 2011). mediation can occur directly where victims and perpetrators are present together or indirectly where victims and perpetrators do not meet with each other facilitated by the mediator. in perma number 1 of 2016 concerning mediation procedures in the court, it is explained that mediation is a way of resolving disputes through a negotiation process to obtain the agreement of the parties with the assistance of the mediator. according to barda nawawi arief, the reason for using mediation of penalties in the settlement of criminal cases is because the idea of mediation of penalties relates to the issue of criminal law reform (penal reform), also related to the problem of pragmatism, another reason is the idea of victim protection, the idea of harmonization, the idea of restorative justice , the idea of overcoming stiffness (formality) and the negative effects of the criminal justice system and the prevailing criminal system, as well as efforts to find alternative criminal measures (other than prison) (barda nawawi arief, 2002: 169-171). penal mediation is an alternative form of resolving disputes outside the court (commonly known as adr or "alternative dispute resolution" and some call it "apropriate dispute resolution"). in general, dispute resolution outside the court only http://creativecommons.org/licenses/by-nc-sa/4.0/ 374 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia exists in civil disputes, but in practice often criminal cases are resolved outside the court through various law enforcement officials' discretion or through consensus / peace mechanisms or institutions of conscience that exist in the community (family deliberations; village deliberations customary deliberations, etc.) (barda nawawi arief, 2012: 2-3). legally in the criminal law enforcement system in indonesia, the actual law enforcers have been given certain authority by law to override criminal cases or settle criminal cases without forwarding them to the court (non-litigation means) (mbanzoulou, cario, & bouchard, 2019). like the police, as regulated in article 18 of law number 2 of 2002 concerning the indonesian national police, has given the police (investigators) the power to discretion, namely the right not to proceed with law against criminal acts as long as it is in the public or moral interest, because discretion is essentially between law and morals. penal mediation for the first time was known in positive legal terminology in indonesia since the issuance of kapolri no. pol: b / 3022 / xii / 2009 / sdeops dated december 14, 2009 concerning handling of cases through alternative dispute resolution (adr), although it was partial. in essence, the principles of mediation of the penalties referred to in this kapolri letter emphasize that the settlement of criminal cases using adr, must be agreed by the parties that litigate, but if there is no new agreement resolved in accordance with applicable legal procedures in a professional and proportional manner. this means that this kapolri letter applies to both parties (both perpetrators and victims) if they agree to be mediated on the condition that the crime committed is a minor crime. in the police chief's letter no. pol: b / 3022 / xii / 2009 / sdeops dated december 14, 2009, several steps for handling cases through adr are determined, namely: (lilik mulyadi, 2013: 8) a. seek to handle criminal cases that have small material losses, the solution can be directed through the concept of adr; b. the settlement of a criminal case using adr must be agreed by the parties to the litigation, but if there is no new agreement, it will be settled in accordance with legal procedures that apply professionally and proportionally; c. the settlement of criminal cases using adr must be based on consensus and must be known by the surrounding community by including the local rt / rw; d. resolving criminal cases using adr must respect social / customary norms and meet the principles of justice; e. empowering members of the community policing and playing the role of fkpm in their respective regions to be able to identify criminal cases that have minor material losses and allow them to be resolved through the adr concept; for cases that have been resolved through the adr concept so that they are no longer touched by other legal actions that are counterproductive with the aim of community policing the national police determined that the application of the alternative dispute resolution concept (a pattern of solving social problems throug h more effective alternative channels in the form of efforts to neutralize problems other than through legal processes or litigation), for example through peace efforts (dekker & breakey, 2016). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 375 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia at the prosecution level, the principle of opportunity is regulated in article 35 letter c of act number 16 of 2004 concerning the attorney general's office of the republic of indonesia with the following formula:(menkel-meadow, 2015) the attorney general has the duty and authority to set aside cases in the public interest, known as seponering. in the process of mediation, a court of law mediation is possible to be carried out with the consideration that the parties are truly aware of the importance of resolving conflicts through deliberation with an awareness of the benefits of peace and mutual forgiveness. for this matter, a judge can actually refer to sema number 1 of 2002 concerning the empowerment of the first level court to apply the peace institution which basically recommends that all judges (the tribunal) who hear the case seriously seek peace by applying article 130 hir / 154rbg., not just formalities advocating peace. although the supreme court circular is understood as a suggestion for the resolution of civil disputes. however, this authority does not seem to be sufficient to implement the settlement of cases outside the court, so there is a need for a law that clearly regulates the mediation of the law (fan & li, 2013). prospects of applying alternative dispute resolution in the indonesian criminal justice system the use of criminal mediation as an alternative to criminal justice, especially in light theft, is not new and is not a necessity to be carried out, and even then depends on the attitude of law enforcement officers. but along with the times and the needs of victims, mediation of the law which is a breakthrough law has many benefits for b oth parties who litigate and provide benefits to the perpetrators and victims. in mediating the penalties the victims are directly met with the perpetrators of the crime and can express their demands so that the peace of the parties is produced (spurr, 2000) in indonesia, the practice of settling cases of petty theft out of court (non litigation) through mediation of penalties has been carried out in the following sample cases: the case of the theft of four microphones in al-maghfiroh mosque simorejo village, kanor district. the perpetrators had the initials af 43-year-old citizen of semanding sub-district of tuban found carrying carrying four microphones belonging to musholla al-maghfiroh. the police who received the report immediately acted by securing the perpetrators along with evidence in the form of four microphones, a pliers and a screwdriver. the case was not proceeded to trial but was resolved through mediation and kinship. kanor police chief, akp imam khanafi said the settlement of the case was carried out by mediation because it was classified as a minor crime. that in perma number 2 of 2012 concerning adjustment of limits of minor crimes and the amount of fines in the criminal code does not need to exaggerate minor criminal cases. another petty theft case that was resolved by mediation occurred in bojonegoro. sugihwaras sector police on june 12 2017 conducted mediation to solve http://creativecommons.org/licenses/by-nc-sa/4.0/ 376 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the problem of petty theft by applying the concept of alternative dispute resolution (adr). the mediated parties were the perpetrators of the initials 40-year-old ub resident of the village of sugihwaras with a victim named zaki, the owner of a shop in front of sugihwaras market. at that time the perpetrators were caught in the act of theft with evidence of 1 bottle of pantene shampoo for 22 thousand, 1 bottle of marina handbody for 11 thousand and 1 bottle of vitalist perfume for 22 thousand. the total amount of material losses was 55 thousand and subsequently the shop owner reported to the sugihwaras police station. given the relatively small amount of losses suffered by the victims, sugihwaras police tried to take the mediation route. the penal mediation process creates a win-win agreement for the parties. in the mediation process the parties will be creative in seeking win-win solutions to resolve conflicts. philosophically, mediating penalties ultimately aim to achieve a "win-win" situation and not end in a "lose-lose" or "win-lose" situation as you want to achieve by the judiciary with the achievement of formal justice through a litigative legal process (law enforcement process).(ward & langlands, 2008) through the mediation process of punishment, the highest justice is obtained because of the agreement of the parties involved in the criminal case, namely between the perpetrator and the victim. the victims and perpetrators are expected to find and reach the best solutions and alternatives to resolve the case. the implication of this achievement is that the perpetrators and victims can submit compensation offered, agreed upon and negotiated between them together so that the solution achieved is "win-win" (fathurokhman, 2013). judging from the sociological perspective, this aspect is oriented towards indonesian society when the cultural roots of the community are oriented to the values of family culture, emphasizing the principle of consensus to resolve a dispute in a social system. strictly speaking, these aspects and dimensions are resolved through the local wisdom dimension of customary law. through the history of law, it can be seen that the first law applicable and is a reflection of the legal awareness of the people of indonesia is the local wisdom of customary law. there is communication between the perpetrator and the victim in order to eliminate conflicts arising from the existence of crime. that conflict is directed by the mediation process which in its working principle is referred to as. conflict handling / conflictbearbeitung. in the mediation process there is a stage of gathering points of view (gathering point of view). judging from the sociological perspective, this aspect is oriented towards indonesian society whose society is oriented towards family values, prioritizing the principle of consensus agreement to resolve a dispute in a social system (knudsen & balina, 2014). the creation of work efficiency for institutions that have authority in the process of handling criminal cases. because it would be very ineffective if the court both from the first level to the final level, the police and prosecutors were filled and preoccupied with minor criminal cases that should have been resolved by a win -win solution approach without denying the rights of the parties (witvliet et al., 2008). because there should be a higher priority from law enforcement officials to resolve criminal cases with a higher quality case in order to create public order in accordance with the function and purpose of the criminal law itself. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 377 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia not only does it have advantages, mediation of penalties also still has shortcomings namely if in the investigation process is carried out mediation of penalties then the legal process can be completed if there is an agreement especially from the victim to withdraw the report in the police and stop the legal process. but it is different from mediating penal at the judicial level. the accuracy arising from the mediation of the penalties will only be a consideration of the judge in providing a ruling that is easy for the offender. but it will not necessarily stop the legal process that is already running (lee, yiu, & cheung, 2016). both of these different legal consequences occur because in fact there is not yet a comprehensive legal basis governing the same mediating penal process at all stages of the legal process. or in other words mediation of penalties can only be done outside the court, in contrast to mediation in civil cases that are recommended in the judicial process as stated in perma number 1 of 2016 concerning mediation procedures in court. mediation that can be carried out in criminal cases is only carried out on the basis of the discretionary authority possessed by law enforcement officers, especially the police. but even within the police environment, sometimes the settlement of a case of petty theft still promotes a retributive paradigm. this is because indeed in the criminal code still requires litigation in the judicial process. conclusion penal mediation is an alternative form of resolving disputes outside the court (commonly known as adr or "alternative dispute resolution" and some call it "apro priate dispute resolution"). penal mediation for the first time is known in positive legal terminology in indonesia since the issuance of kapolri no. pol: b / 3022 / xii / 2009 / sdeops dated december 14, 2009 concerning handling cases through alternative dispute resolution (adr), even though they are partial. in essence, the principles of mediation of the penalties referred to in this kapolri letter emphasize that the settlement of criminal cases using adr, must be agreed by the parties that litigate, but if there is no new agreement resolved in accordance with applicable legal procedures in a professional and proportional manner. the use of criminal mediation as an alternative to criminal justice, especially in light theft, is not new and is not a necessity to be carried out, and even then depends on the attitude of law enforcement officers. but along with the times and the needs of victims, mediation of the law which is a breakthrough law has many benefits for both parties who litigate and provide benefits to the perpetrators and victims. in mediating the penalties the victims are directly met with the perpetrators of the crime and can express their demands so that the peace of the parties is produced. the penal mediation process creates a win-win agreement for the parties. in the mediation process the parties will be creative in seeking win-win solutions to resolve conflicts. the victims and perpetrators are expected to find and reach the best solutions and alternatives to resolve the case. judging from the sociological perspective, this aspect is oriented towards indonesian society whose society is http://creativecommons.org/licenses/by-nc-sa/4.0/ 378 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia oriented towards family values, prioritizing the principle of consensus agreement to resolve a dispute in a social system. not only does it have advantages, mediation of penalties also still has shortcomings namely if in the investigation process is carried out mediation of penalties then the legal process can be completed if there is an agreement especially from the victim to withdraw the report in the police and stop the legal process. but it is different from mediating penal at the judicial level. the accuracy arising from the mediation of the penalties will only be a consideration of the judge in providing a ruling that is easy for the offender. but it will not necessarily stop the legal process that is already running. both of these different legal consequences occur because in fact there is not yet a comprehensive legal basis governing the same mediating penal process at all stages of the legal process. or in other words mediation of penalties can only be done outside the court, in contrast to mediation in civil cases that are recommended in the judicial process as stated in perma number 1 of 2016 concerning mediation procedures in court. mediation that can be carried out in criminal cases is only carried out on the basis of the discretionary authority possessed by law enforcement officers, especially the police. but even within the police environment, sometimes the settlement of a case of petty theft still promotes a retributive paradigm. this is because indeed in the criminal code still requires litigation in the judicial process. references abdullah, n. c. 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(2000). the role of nonbinding alternative dispute resolution in litigation. journal of economic behavior and organization, 42(1), 75–96. https://doi.org/10.1016/s0167-2681(00)00075-5 ward, t., & langlands, r. l. (2008). restorative justice and the human rights of offenders: convergences and divergences. aggression and violent behavior, 13(5), 355– 372. https://doi.org/10.1016/j.avb.2008.06.001 witvliet, c. v. o., worthington, e. l., root, l. m., sato, a. f., ludwig, t. e., & exline, j. j. (2008). retributive justice, restorative justice, and forgiveness: an experimental psychophysiology analysis. journal of experimental social psychology, 44(1), 10–25. https://doi.org/10.1016/j.jesp.2007.01.009 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 165 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article subjective well being with antisocial behavior in adolescents case of babalan village wedung demak (a criminological perspective) umi mujiarti1 1 council of law, human rights and politics of the regional board of aisyiyah, kebumen, central java, indonesia  umipraya@gmail.com cited as mujiarti, u. (2021). advocacy and combating sexual crimes in the perspective of child protection law. journal of law and legal reform, 2(2), 165-186. https://doi.org/10.15294/jllr.v2i2.46617 abstract the purpose of this research is to find the right forms of advocacy against child victims of sexual crime and efforts to overcome sexual crime in a child protection perspective. the method in this research is the participant research method (the method of the participant observer), which is to fully involve oneself in advocacy and efforts to overcome sexual crimes against children. this research with through an empirical juridical approach by conducting research approaches regarding matters that are juridical (law) and with a fact of facts that occur regarding matters of an empirical nature. the results in this study are forms advocacy and efforts to overcome sexual crime in a child protection perspective, in accordance with the law on child protection, namely advocacy in the form of litigation (legal assistance / through judicial channels) and nonlitigation (assistance outside the court route), efforts to combat sexual crimes by means of preventive (prevention), repressive (action); persuasive (by persuading or directing the community to comply with the prevailing values and norms) this is done by means of socialization and direction, coercive is control that is harsh or journal of law and legal reform (2021), 2(2), pp. 165-186. doi: https://doi.org/10.15294/jllr.v2i2.46617 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 22 december 2020, revised: 11 february 2021, accepted: 27 april 2021 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46617 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 166 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia firm in nature (for example the imposition of a sentence by a judge) and rehabilitative (social rehabilitation). keywords: sexual crime, child protection, advocacy, legal protection introduction children are creatures of play. with all their tenderness, cuteness, and cuteness, they are still vulnerable to distraction and harm. he was not born into this world in vain. god has provided her with a set of rights, thoughts, and conscience for her future. children are god's mandate for us. we have a responsibility to protect and help so that later the provisions god has given him can be used to his destination. legal protection for children is all efforts to protect the various freedoms and human rights of children (fundamental rights and freedoms of children) and various interests related to the welfare of children. legal protection for children is functioned to protect children so that they can carry out their rights and obligations properly. the mandate for implementing child protection in the 1945 constitution, is stated in (amendment ii, 18 august 2000), article 28b paragraph 2 which reads: "every child has the right to live, grow and develop and has the right to protection from violence and discrimination", article 28 c (2) also states that "every child has the right to develop himself through the fulfillment of his basic needs". article 34 (amendment iv, 10 august 2002) which reads: (1) the poor and neglected children are cared for by the state; and (2) the state develops a social security system for all the people and empowers the weak and underprivileged people according to human dignity (aprilianda, 2017; arief, 2005). these two verses provide assurance that the implementation of child protection is an obligatory thing to achieve the conditions of society as aspired to in the preamble of the 1945 constitution. one of the characteristics of the state is "a degree of civilization", namely the level of civilization of the state which is manifested in national development, while national development for indonesia is a reflection of the will to continuously improve the welfare and prosperity of the indonesian people in a just and equitable manner, as well as develop community life and state administration. which is advanced and democratic based on pancasila, as a form of practicing all the principles of pancasila in harmony and as a whole (kusumaatmadja, 2000: 13). in the field of criminal politics, one form of the development of a state civilization is taken by anticipating and overcoming all potential / forms of violence and crime. a crucial issue that is urgent to get a comprehensive handling is sexual crimes against children. based on facts and events in the existing society, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 167 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia it shows that there is a need for a more comprehensive and integrated effort to combat sexual crimes against children. until now, efforts to protect child victims of sexual crimes have focused more on how to respond and provide services when children become victims. efforts to prevent and fulfill the rights of victims (education rights, social rights, economy, security) have not received significant attention (hakim, 2012; harahap, 2016; hidayati, 2014). article 28 b of the 1945 constitution “every child has the right to live, grow and develop and have the right to protection from violence and discrimination. even though our constitution guarantees the protection of children from violence, violence against children, especially sexual violence / crime is still rife. according to kemen pppa, nahar, since january 31 july 2020 there were 4,116 cases of violence against children in indonesia, the most data experienced were children with sexual violence. one of the steps of the indonesian government in providing protection for victims of sexual crimes is to ratify the international convention on the rights of the child, namely the ratification of the convention on the rights of the child through presidential decree no. 36 of 1990, concerning ratification of the convention on the rights of the child). although there are legal instruments in providing protection for children in indonesia, sexual crimes against children are still on the rise. implementation of the international convention on the rights of the child ratification, namely the formation of the child protection law, namely law no. 35 of 2014 concerning amendments to law no. 23 of 2002 concerning child protection. the second amendment to the child protection law into law no. 17 of 2016. broadly speaking, the convention on the rights of the child can be categorized as follows, first the affirmation of children's rights, secondly the protection of children by the state, and the third role of various parties (government, society and the private sector) in ensuring respect for children's rights. some previous research emphasized and highlighted that one of legal provisions regarding children's rights in the convention on the rights of the child is concerning protection rights, namely protection of children from discrimination, acts of violence and neglect for children who do not have a family, and for children who are refugees. protection rights from discrimination, including (1) protection of children with disabilities to obtain education, special care and training, and (2) rights of children from minority groups and indigenous people in the life of the state community. protection from exploitation, including (1) protection from personal life disturbances, (2) protection from involvement in work that threatens the health, education and development of children, (3) protection from drug and drug abuse, protection from attempts at abuse, sexuality, prostitution, and pornography, (4) protection of efforts to sell, smuggle and kidnap children (noor, suhadi, & rizqia, 2019; rizky, fitriani, sudibyo, http://creativecommons.org/licenses/by-nc-sa/4.0/ 168 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia husnasari, & maulana, 2019; wahyuningsih, 2016; lubis 2017; huraira, et al, 2015; erdianti & al-fatih, 2019; djanggih, 2018; arifin, rodiyah, & putri, 2020). as a step to provide comprehensive protection for children's rights, a form of legitimacy is being pursued through the drafting of the child protection law. at the moment the child protection law has been signed by the government and the dpr and is just waiting to be promulgated. some of the materials stipulated in the child protection law include (1) the issue of fulfilling children's rights and obligations, (2) the responsibility of the state, government, community, family, and parents towards children, (3) child guardianship, (4) custody, (5) adoption of children, (6) protection of children in the health, religion, education and social sectors, and (7) provisions of child penalties. the child protection law also regulates the problem of children who are in conflict with the law, children from minority groups, children from victims of economic and sexual exploitation, children who are trafficked (restia & arifin, 2020; adfina, 2017; mulyadi, 2018; pertiwi, 2020). efforts to prevent sexual crimes against children are as important as efforts to treat and cure. prevention means all efforts to prevent violations of children's rights which include freedom, freedom from sexual violence, civil rights, political rights, economic rights, social and cultural rights (sumirat, 2017; noor, suhadi, & rizqia, 2019). strengthening the public and government apparatus' insight into children's rights in the civil, political, economic, social and cultural fields will determine the quality of child protection. when sexual violence/crimes are interpreted as an expression of outrage, then all efforts to prevent sexual violence/crimes against children can be interpreted as steps to build civilization (mufrohim, 2019; rahman, 2019; marlina, 2019). given the importance of children's existence for the sustainability of social life, nation and state, the government is required to be more focused, comprehensive, synergistic, and serious in making efforts to protect children. with a more comprehensive and integrated protection effort, it is hoped that children's rights will be better protected, without having to be tainted by various forms of violence, mistreatment and exploitation. growth and development, the future, and the welfare of children will be more secure. the objectives of this research are to carry out advocacy for child victims of sexual violence, to protect children's rights in daily social life interactions through more comprehensive and synergistic protection efforts, so that children's growth and development and future can be more secure the realization of a strong nation in the future will be largely determined by how much we do to protect children today. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 169 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia method the method in this research is the participant research method (the method of the participant observer), namely the researcher directly involves himself fully in advocacy for child victims of sexual crime and efforts to overcome sexual crime. the legal research used in this research process is juridical normative empirical, which is carried out through a literature study that examines (especially) secondary data in the form of laws and regulations, court decisions, agreements, contracts, or other legal documents, as well as research results, assessment results, interviews, focus group discussions, experiences as practitioners/ companions of child victims of sexual crimes and other references. advocacy for children: how we protect the sexual violence victims? advocacy in the form of litigation (legal assistance/through judicial channels) and non-litigation (assistance outside the court route), efforts to overcome sexual crimes by means of preventive (prevention), repressive (action); persuasive (by persuading or directing the community to comply with the prevailing values and norms) this is done by means of socialization and direction, coercive is control that is harsh or firm in nature (for example the imposition of a sentence by a judge) and rehabilitative (social rehabilitation). efforts to combat sexual crimes in the perspective of child protection in accordance with the law on child protection, namely preventive measures are needed so that sexual crimes against children do not occur. without denying the importance of the efforts that have been done/taken at this time, it is predicted that the prevention of violence or sexual crimes against children will not bring maximum results if the factors that are the background or cover the occurrence of violence or sexual crimes against children are not eliminated/addressed. first. arif gosita argues that in the effort to prevent crime, the word prevention can mean, among other things, to make positive changes. there are several reasons why it is necessary to pay greater attention to prevention before crime and other irregularities are committed, as follows: 1. preventive measures are better than repressive and corrective measures. prevention efforts do not always require a complex and bureaucratic organization that can lead to bureaucracy that is detrimental to the abuse of power / authority. prevention efforts are more economical than repressive and rehabilitation efforts. serving a larger number of people does not require as much energy as a repressive or rehabilitative effort. prevention efforts can also be carried out individually and do not always require expertise, such as in repressive or rehabilitation efforts. http://creativecommons.org/licenses/by-nc-sa/4.0/ 170 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. prevention efforts need not have negative consequences such as stigmatization, isolation, suffering in various forms, violations of human rights, hostility and hatred. 3. prevention efforts can strengthen unity and harmony and increase a sense of responsibility towards fellow community members. thus, prevention efforts can help people develop a better state and society. because of securing and seeking stability in society, which is necessary for the implementation of national development to achieve a just and prosperous society. efforts to prevent crime and other irregularities can be an attempt to create a person's mental, physical, and social well-being (gosita, 1993: 7-8). efforts to eliminate violence against children using criminal law are not the only way to tackle violence. efforts through criminal law are only one of the ultimate efforts (ultimum remedium), when the building of a nonviolent-oriented social, economic, ethical, and religious system is still breached by acts of violence. violence and crimes against children are phenomena that always appear and bring victims in everyday social life. however, if we look closely, up to now, the discussion and regulations on child protection have focused more on children who are dealing with the law in the context of children as perpetrators of criminal acts. children as victims of crime have not received adequate space for discussion and protection regulations. in such situations, the establishment of child protection regulations in the context of prevention, handling, and recovery due to violence which can provide a systematic basis for work and coordination between stakeholders is urgently needed. the integration of performance among stakeholders will determine the level of success of child protection efforts. it is not enough for child protection efforts to rely solely on repressive measures by taking action against the perpetrators, or rehabilitative efforts for the perpetrators and children who are victims. violence and crime as forms of social pathology do require proper diagnosis and treatment. just as in the world of health, prevention is as important as healing and healing; can be applied in child protection efforts. the limitations of the capacity of the criminal law in tackling crimes have been expressed by many legal experts, which from the opinions of these experts can be identified because of the limited capacity of the criminal law in tackling crimes as follows: a) the causes for such a complex crime are beyond the scope of criminal law. b) criminal law is only a sub-system (a small part) of the means of social control which is impossible to solve the problem of crime as a very complex human and social problem (as a socio-psychological, sociopolitical, socio-economic, socio-cultural problem, and so on). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 171 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia c) the use of criminal law in tackling crime is only a "curatoren am symptom". therefore, criminal law is only a symptomic treatment and not a causative treatment. d) criminal sanctions are remedies that contain contradictory / paradoxical characteristics and contain negative elements and side effects. e) the criminal system is fragmentary and individual/personal, not structural/functional. f) limitations of the types of criminal sanctions in the rigid and imperative system of criminal sanctions formulation g) the functioning of criminal law requires supporting facilities that are more varied and more demanding. the essence of crime is to call for order (tot de orde reopen). crime has two main objectives, namely: to influence behavior and resolve conflicts (hulsman in marlina, 2009: 158). the use of penal measures (criminal sanctions) in regulating society (through legislation) is part of a policy step. given the limitations and weaknesses of criminal law, from a policy point of view, the use or intervention of penalties should be more careful, careful, thrifty, selective, and limitative. in other words, penal means do not always have to be used in every legislative product (arief, 2005: 74-75). the integral/systemic approaches in the prevention of crime that are currently often put forward in un congresses include: 1. crime prevention and criminal justice should not be seen as isolated problems and handled by simplistic and fragmentary methods but should be seen as more complex problems and handled with broad and comprehensive policies/actions. 2. prevention of crime must be based on the elimination of the causes and conditions as such must constitute a fundamental strategy in the effort to prevent crime (the basic crime prevention strategy). 3. the main causes of crime in many countries are social inequality, racial and national discrimination, low living standards, unemployment, and illiteracy (ignorance) among large sections of the population. 4. prevention of crime and criminal justice should be considered in relation to economic development, political systems, socio-cultural values and changes in society, as well as in relation to the new world / international economic order (arief, 2005: 178). if we want to describe or prevent crime, we must pay attention to and understand the victim of a crime. crime is a result of interaction because of the interrelation of existing phenomena and those that influence each other. the role of the victim in social interaction affects the occurrence of crime. the suffering of victims is the result of interactions between criminals and victims, witnesses, law enforcement agencies and other communities. in efforts to tackle crime, we must http://creativecommons.org/licenses/by-nc-sa/4.0/ 172 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia look for which phenomena are important and need to be taken into account in the occurrence of crime. the effort to prevent crime is a joint effort and must be started as early as possible in every member of society and every social class. every member of society has a responsibility in overcoming crime problems and their problems. in implementing effective crime prevention, it is necessary to take an inventory and understand the constraining factors and their support. this is important to create a certain climate and conditions so that those who are involved in prevention efforts do not become discouraged. those who are responsible for preventing crime, directly or indirectly, include: 1. rulers who directly or indirectly supervise crimes, those who determine policies that every citizen has the opportunity and ability to legally fulfill physical, mental, and social expectations. 2. prospective perpetrators are expected to be able to refrain from committing a crime on their own will and interests or because of the behavior of others (greed, negligence, other people's suggestions / suggestions). for example, trying to obtain something legally. do not use power in certain fields to get something for the benefit of yourself or others. 3. criminals who are expected not to repeat the same crime or other forms for the common interest. it is hoped that they can work together to develop themselves and are willing to be mentored by the agency in charge of providing guidance. 4. potential victims of crime who are expected to be able to control themselves not to involve themselves in a crime directly or indirectly for their own or other people's interests. it is also expected not to become a victim by being vigilant and not giving other people the opportunity to commit crimes against him. 5. victims of crimes who are expected to try not to become victims anymore, do not retaliate or give false testimonies. 6. members of the public who witness a crime taking place are expected to participate in preventing the crime from occurring. the passive attitude of witnesses can be an incentive for criminals to carry out their intentions. 7. private or government agencies or organizations that are intended to help prevent both before and after a crime occurs. these agencies or organizations have an important role because of their ability to influence other agencies and society positively or negatively to take part in being responsible for crime prevention efforts (social institutions, schools, police, courts, orphanages). 8. family in a broad or narrow sense, which can be said to have the strongest relationship with the person concerned. attention to the family in prevention should not be ignored because the positive and negative effects of family ties can affect a person who is a criminal. the development of positive family ties http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 173 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia can help a lot in efforts to prevent crime or become victims of crime (gosita, 1993: 114 117). child protection from sexual violences: some contemporary and controversial issues in fact, it is too narrow to define violence against children only in the form of physical, psychological, sexual, and economic violence which is committed in the sense of violence perpetrated by individuals. basically, there are various forms of violence against children which can be broadly grouped as follows: 1. individual or group violence: this violence is committed by an individual, several people, or a group of people who are physically, psychologically, sexually and or economically inflicted on the child. 2. social violence: this violence occurs because of the injustice of values that are socially enforced in the child's environment. example girls are not recommended for high level schools. 3. structural violence: this violence occurs because of regulations or policies of the state, government, government or private institutions, especially those exercising public authority. many structural policies are criminogenous and victimogenous to children. for example: child victims of crime are examined as witnesses in an adult court room, not provided braile-letter national examination questions for blind students, etc. in the sixth un congress in 1980 in venezuela and the seventh un congress in 1985 in milan, in essence it was stated that development is criminogenic if it is not planned rationally, is imbalanced or unbalanced, ignores cultural and moral values, and does not include an integral (comprehensive) community protection strategy. je sahetapi said that one of the factors in the incidence of crime is the lack of goodness of the law, in addition to the inconsistent implementation of laws and attitudes or actions of law enforcers. wolf middendorf stated that the overall effectiveness of criminal justice depends on 3 interrelated factors, namely the existence of good legislation, quick and certain enforcement. there are several principles of child protection related to neglect, power and exploitation, namely: a) protection b) joint ventures c) common interest d) educational elements wrong treatment is a form of problem faced by children, which occurs in the family, community, school, and playground. especially for incidents in the family environment, this case is not widely revealed because there is still an opinion that mistreatment of children is a domestic matter. article 59 of law no. 23 of 2002 concerning child protection has emphasized that mistreatment of http://creativecommons.org/licenses/by-nc-sa/4.0/ 174 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia children is a public matter, with the following arrangements: "the government and other state institutions are obliged and responsible for providing special protection to child victims of mistreatment". according to hendra akhdhiat and rosleny marliani, there are several categories of mistreatment which include: 1. physical abuse according to power and jacklish, physical abuse is presumed to exist when a child is intentionally physically abused or placed in a condition that may be physically hurt. physical abuse can also result in mental disorders, so clinical and medical approaches alone are often not sufficient. 2. mental abuse quoting innocenti's opinion, mental abuse / emotional abuse is any act that is intentionally or unintentionally committed by another person, which makes an individual sick or disturbed, or gets an unpleasant feeling. for example, verbal abuse (verbal attacks, verbal abuse), sarcasm, harassment, and physical violence. 3. sexual abuse according to innocenti, in many countries, the term sexual mistreatment includes: "any sexual activity with someone who is not legally competent to give consent or has refused consent". for example: incest, encouragement, and coercion to commit illegal sexual acts, exploitation of children for pornography and prostitution (akhdhiat & marliani, 2011: 170 171). apart from the three categories of mistreatment, there is one more form of mistreatment, which the researcher categorizes as "socially wrong treatment": for example: restricting/prohibiting children from associating with certain ethnicities, social strata, etc. which are irrelevant to the risk of growth and development and maturity. social child. children are mono-dualists, as personal and social creatures. children must be given a good social space so that later they are able to carry out their social roles in community life. the importance of social maturity will be felt especially in the life of a multicultural society. indonesian society which is based on diversity always wants tolerance and social brotherhood. based on a philosophical approach, mentally and socially, fostering, education, and developing children's behavior are the responsibility of parents, society and the state. parents and society need to provide clear information about the child's mental, educational, and socio-economic condition (stewart asquit in marlina, 2009: 159). based on various international documents on child protection, the need for child protection can cover various aspects, including: 1. protection of the rights and freedoms of children 2. protection of children in the judicial process 3. protection of children in matters of detention and deprivation of liberty http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 175 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 4. protection of child welfare (in the family environment, education and social environment) 5. protection of children from all forms of exploitation (slavery, child trafficking, prostitution, exploitation, trafficking/abuse of drugs, exploiting children in committing crimes, and so on 6. protection of street children 7. protection of children from the consequences of war / armed conflict 8. protection of children against acts of violence (arief 2005: 178) 9. protection of children in natural disasters, social disasters and displacement the implementation of child protection must meet the following requirements: 1) is the development of truth, justice and child welfare 2) must have a foundation of philosophy, ethics and law 3) done in a positive rational 4) can be accounted for 5) useful for the concerned 6) prioritizing the perspective of regulated interests, not the perspective of regulating interests 7) not accidental and complementary, but must be done consistently 8) have an operational plan 9) emphasizes the elements of management 10) implementing a restorative justice response (restorative in nature) 11) is not a place and opportunity for people to seek personal/group gain 12) children are given the opportunity to participate in accordance with the situation and conditions, 13) based on the correct image of the human child 14) problem oriented and not target oriented 15) is not a criminogenous factor and is not a victimogen factor (gosita, 1999: 264-266). child protection is related to several things that need protection, namely: 1. extent of the scope of protection a. the main protections include, among others: food and clothing, housing, education, health, law b. includes physical and spiritual things c. it also concerns the classification of primary and secondary needs which results in priority fulfillment 2. guaranteed implementation of protection a. naturally, to achieve maximum results, it is necessary to guarantee the implementation of this protection activity, which can be known, felt by the parties involved in the protection activity. b. it is better if this guarantee is stated in a written regulation either in the form of law or regional regulation, which is simple in formulation but can be accounted for and is distributed evenly in the community. http://creativecommons.org/licenses/by-nc-sa/4.0/ 176 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia c. arrangements must be adapted to the conditions and situation in indonesia without neglecting the means of protection undertaken by other countries, which should be considered and imitated (critical imitation) (arif gosita in gultom 2008: 36) since the 1980s, america and britain have developed child abuse prevention programs through various media, films, theater, poetry, books, comics, role plays, group discussions, and others. this was done because of concerns about the increasing number of mistreatment of children at that time. on average, children who are victims of mistreatment experience psychological disorders. they look gloomy, closed, seldom adapt and socialize, lack concentration, and their academic achievement decreases (hefler, 1976). in malaysia, a suspected child abuse and neglect (scan) was formed which functions to prevent child abuse through the education of parents, perpetrators, the general public, and related elements. this agency is in charge of detecting, investigating, regulating, and documenting all mistreatment, which then forms a network structure and work operations. this institution also involves elements of society, including parents, community members, research institutions, professional institutions, non-governmental organizations, the police, and hospitals (akhdhiat & marliani, 2011: 174). according to laurence gray, measurable policies and programs are needed that can advance child protection in facing conditions of risk of violence, exploitation or neglect of children's rights. for the indonesian context, gray said education has a major role in not only developing a better life for children, but also presenting more maximum involvement of parents in children's growth and development. read more gray said: “…. education has a key role not only in increasing the life options of the child, but also in involving parents more fully in the development of their children. it highlights that programs require commitment on the part of government, and fundamental shift in thinking that places positive outcomes for children as a central tenet in social and economic policy. strengthening civil society begins with earnestly pursuing an open public space that can be used to fully engage aspirational potentials in society, as well as continuously criticizing the imbalances that occur. the formation of independent democratic individuals who are capable of social reasoning and actively involved in decision-making processes in society is important. here, civil society is defined as areas of social life that are organized and characterized, among others: voluntary, self-generating, self-supporting, and independent. the public have basic rights to the government. these community rights are as follows (yuwono, et al, 2005: 63): 1. the right to know (right to know) government policies, decisions made by the government, and the reasons for implementing certain policies and decisions 2. the right to be informed, which includes the right to be given an open explanation of certain problems that become public debates http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 177 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. right to be heard and to be listened to ideally, a regulation must be in accordance with the conditions and needs of the people who will be subject to these regulations so that there is no unrest and dissatisfaction. as a government administrator, the government is required to understand and understand the situation of society; but further than that is to consider the support and demands that exist in the community. therefore, before the government proposes a draft regulation, the government has a very important function to be able to study the situation and conditions appropriately (sunggono, 1994: 12-13). philip von mehren and tim sawers said that if the development of laws and regulations and development will affect knowledge of social change, laws and regulations need to be positioned as an important variable influencing the process of social change. if legislation is solely the result of a social change, the analysis of legal development loses all normative implications for the policymaking process. legal analysis ultimately becomes a descriptive act (seidman, et al 2001: 11). the structure and services must be developed including: 1. primary preventive services this service is aimed at the community as a whole by strengthening the community's ability to care for and keep their children safe. activities directly have an impact on changing attitudes and social behavior through advocacy and awareness raising campaigns, strengthening parental skills, promoting alternative forms of discipline without violence and increasing public awareness about the negative effects of violence against children. 2. secondary preventive services or early intervention services this service is aimed at children and families who are identified as vulnerable or at risk of abuse or neglect. for example, families who are divorced or experiencing separate lives, families who need mediation or counseling to overcome drug or alcohol use habits, families experiencing violence or families experiencing mental health problems so that they have difficulty in caring for their children. to overcome this, it is necessary to affirm the government's obligations and the responsibility of the community. 3. child protection problem handling services this service is aimed at children who have experienced violence, exploitation, neglect and mistreatment, children who are in conflict with the law. this condition requires ongoing interventions such as counseling, advice, monitoring, and the state's obligation to intervene in the case through supervision, family support services such as educational programs for parents, counseling for families and family members, healing therapy programs, and / or providing housing. temporary protection for children who are victims or providing alternative care through an official decision by the court. http://creativecommons.org/licenses/by-nc-sa/4.0/ 178 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 4. social recovery and reintegration services rehabilitation, namely the district government's efforts to ensure that every child who is a victim of violence, mistreatment, exploitation and neglect gets rehabilitation support that includes rescue (rescue), health, education, psycho-social, economic, social and legal. reintegration, which is in the form of post-rehabilitation support for children victims of violence, mistreatment, exploitation and neglect to provide guarantees that children can be accepted / reunited with their families and their environment and guaranteed growth and development in the future juridically normative, although efforts to overcome the problem of violence against children have been regulated, the existing regulations still provide partial regulation. the complexity of the problem of violence against children requires comprehensive efforts. regulations on the implementation of child protection are needed to ensure the implementation of effective, systematic, integrated and sustainable efforts needed to build the capacity of government institutions and the people of kebumen district in: 1. abuse, exploitation and neglect of children; 2. recognize risky situations and intervene early in the emergence of various forms of violence, mistreatment, exploitation and neglect of children; and 3. respond appropriately and quickly to child protection issues that arise, including in the provision of physical and psychological recovery services as well as social reintegration in an environment that supports children's health and safeguards children's self-respect and dignity. indonesian national policies for child protection: problems and challenges in the multi perspectives in theological perspective, children are a mandate from god. in terms of constitutionality, children are a continuation of the survival of a nation. children have an existence and an important position as heirs and actors of the future development of the nation and state. when the quality of a nation has deteriorated in various dimensions, it is often said that the nation concerned has lost one generation. such a nation; vulnerable to various forms of colonialism, whether colonialism in the physical, economic, social, or even ideological sense. the sacred and important position of the child can be one of the bases for cultivating the seriousness of our efforts in providing protection to children; so that possible crimes and mistreatment of children in the future can be anticipated and prevented. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 179 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law no. 23 of 2002 regarding child protection is considered a sufficiently adequate rule in realizing indonesia's commitment to protecting children's rights. however, that must be rememberedand it is reaffirmed that the commitment to protect, fulfill and respect children's rights must be implemented in a concrete program. so the state as the bearer of the obligations with the bureaucratic mechanism it has together with the family and the community must be able to ensure that this can be carried out properly. law number 23 of 2002 concerning child protection mandates the obligation to fulfill and protect children's rights as documented in the un convention on the rights of the child (kha). this shows that children have strategic values as the buds of the nation and the next generation of development. its strategic role and special characteristics and characteristics are a manifestation of guaranteeing the continuity of the existence of the nation and state in the future. in the general assembly of the united nations on november 20, 1959, the declaration of the rights of the child was ratified which contained 10 principles of children's rights, as follows: 1. children have the right to enjoy all their rights in accordance with the provisions contained in the declaration of children's rights, without exception, their rights must be guaranteed regardless of ethnicity, skin color, sex, language, religion, political views, nationality, social rank, rich and poor, birth. or other status, both in himself and in his family. 2. children have the right to special protection and must have the opportunity guaranteed by law and other means, in order to enable them to develop themselves physically, psychologically, morally, spiritually and socially in a healthy, normal situation in accordance with their freedom and dignity. putting that goal into law, the best interests of the child must be the main consideration. 3. children from birth have the right to name and nationality 4. children have the right and must be socially guaranteed to grow and develop in a healthy manner. for that, both before and after birth, there must be special care and protection for the child and the mother. children have the right to adequate nutrition, housing, recreation and health services. 5. children with physical, mental and social disabilities due to certain conditions must receive education, care and special treatment. 6. in order for a child's personality to grow optimally and harmoniously, he needs love and understanding. as much as possible he should be raised under the care and responsibility of his own parents, and in any case should be endeavored to be in an atmosphere full of love, physical health and spirituality. children under five years old are not allowed to be separated from their mother. community and government authorities are obliged to provide special care to children who do not have a family and to children who cannot afford it. it is hoped that the government and http://creativecommons.org/licenses/by-nc-sa/4.0/ 180 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia other parties provide financial assistance for children who come from large families. 7. children have the right to free compulsory education only at the very least which can increase their general knowledge, and which allows them, on the basis of equal opportunities to develop their abilities, personal opinions and feelings of moral and social responsibility, so that they can become useful members of society. the interests of the child must be guided by those responsible for the education and guidance of the child concerned: first of all this responsibility lies with their parents. children must have free opportunities for play and recreation which are directed towards educational purposes, the community and the competent government must endeavor to improve the exercise of this right. 8. under no circumstances should the child take precedence in receiving protection and assistance 9. children must be protected from all forms of neglect, violence, exploitation. it must not be the subject of trade. children may not work before a certain age, they may not be involved in work that is detrimental to their health and education, or which can affect the development of their body, spirit and character. 10. children must be protected from acts that lead to social, religious and other forms of discrimination. they must be raised in a spirit of understanding, tolerance and friendship between nations, peace and brotherhood with the full awareness that their talents and talents are dedicated to their fellow humans. arief gosita said that there are several bases for implementing child protection, as follows: 1. philosophical basis; pancasila is the basis of activities in various fields of family, community, state and national life, as well as the philosophical basis of child protection 2. ethical basis; the implementation of child protection must be in accordance with the relevant professional ethics, to prevent deviant behavior in the exercise of authority, power, strength in the implementation of child protection. 3. juridical basis, the implementation of child protection must be based on the 1945 constitution and various other applicable laws and regulations. the application of this juridical basis must be integrative, namely the integrated application of laws and regulations from various related fields of law. pancasila and the objectives of the state contained in the preamble of the 1945 constitution amendment paragraph 4 is the philosophical foundation of every statutory regulation in indonesia. the values of pancasila are the lichtstern or guiding star for every legal rule in our country. every material in the content of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 181 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia statutory regulations, including the regional regulations on the implementation of child protection that we will compile, must refer to pancasila and be oriented towards the realization of the state's goals as set out in the preamble to the 1945 constitution amendment paragraph 4. to realize the achievement of upholding and fulfilling the rights of its citizens, the government is obliged to provide protection and a sense of security to all citizens as outlined in a policy both at the national and regional levels. the government is responsible for taking actions both legally, politically, economically and socially to prevent, suppress, reduce and eliminate all forms of violence in the form of policies that apply at the national and regional levels. concern for the welfare of children means the seriousness of efforts to support the fulfillment of things that are needed by children to survive and grow and develop optimally, such as meeting basic needs, quality of care in a family environment, quality educational opportunities, and opportunities to learn to be part of the process. in its society. concern for child protection means serious efforts to ensure that every child is protected from the threat of various forms of violence, mistreatment, exploitation, and neglect which not only adversely affect children's safety and physical health, but also mental, moral, and social health. child victims of violence and crime must receive maximum protection and recovery so that they can regain their enthusiasm for life. children with all forms of inherent vulnerability need protection and strengthening of their rights so that later they can grow and develop as a generation that is strong and with integrity. it is hoped that the emergence of a younger generation who are not only physically mature, but more than that a generation that is mature in physical, mental, spiritual, and social aspects. therefore, prudent treatment of children is something that absolutely must be carried out by all stakeholders. the definition of victims according to united nations mu resolution 40/34 of 1985, is people both individually and collectively, who suffer losses due to actions (not doing) that violate the criminal law in force in a country, including regulations that prohibit abuse of power. victims include people who have been victims of acts (not doing) which, although not yet a violation of the applicable national criminal law, are already violations according to internationally recognized human rights norms. harm according to the resolution includes physical or mental injury, emotional suffering, economic loss, rhona km smith said that perfectly, the entire international human rights instrument is precisely at the "heart" of children's rights. age and psychological and mental maturity factors often make him marginalized in policy making. even policies concerning themselves alone, the children's community is alienated from their greatest interests (el muhtaj, 2009: 225-232). according to stephen schafer, seen from the victim interaction factor in the process of violence / crime, violence that befell children qualifies as biologically weak victim, namely crimes caused by the victim's biological condition that is still http://creativecommons.org/licenses/by-nc-sa/4.0/ 182 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia weak so that it has the potential to become victims of crime. in terms of the aspect, the responsibility lies with the community or local government because they cannot provide protection to helpless victims (mulyadi, 2007: 125). if the phenomenon of various forms of violence continues to befall children, it is not impossible when they reach adulthood, they will become the biggest contributor to crime in a country. on the other hand, if they get affection and treatment right from their youth, then at least their pathological and psychosocial grip is not so strong in influencing them to do evil. this is what is called children in need of special protection, vulnerable children, namely children who are in a marginal climate who are very vulnerable to being mistreated. borrowing the term maman natawijaya, a condition full of violence in the name of adult capitalism worshipers (el muhtaj, 2009: 225-232). in un general assembly resolution number 44/25 dated november 20, 1989, it is stated that there are 4 points of recognition of the international community for the rights of children, namely (1) the right to survival of children (survival rights); (2) protection rights; (3) development rights; (4) the right to participate (participation rights). children need to get proper, planned, programmed attention and treatment, and demand seriousness and synergy from all elements of the nation and state. the wrong treatment we take in raising and honing children's potential can have fatal consequences for the child itself, which in the end, all of us will reap losses in various aspects. not all good intentions to protect children can bring good results, without being accompanied by a good method and implementation of child protection. in the life of the indonesian nation which is based on pancasila, the importance of child protection has been included in the principles of pancasila and in the objectives of the state written in the preamble to the 1945 constitution paragraph 4. the objectives of the indonesian state, as stated in the preamble of the 1945 constitution, paragraph 4 states: ... to protect the whole nation and all the blood of indonesia, and to promote public welfare, educate the nation's life and participate in implementing world order based on independence, eternal peace and social justice…” we must raise and treat indonesian children in the framework of divinity, humanity, unity, wisdom, deliberation, and social justice. children have the constitutional right to be educated, protected, to gain welfare, and to have peace in their lives. children must receive protection and justice in all aspects of their life. according to friedmann there are four functions of the state as follows (hakim, 2012: 116): 1. as a provider, the state is responsible for and guarantees a minimum standard of living as a whole and provides other social security; 2. as a regulator, the state establishes the rules of state life; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 183 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. as an entrepreneur, the state runs the economic sector through state / regional owned enterprises and creates a conducive atmosphere for the development of business fields; 4. as umpire; the state establishes fair standards for parties engaged in the economic sector, especially between the state sector and the private sector or between certain business fields. quoting the opinion of clemens bartollas, the purpose and basis of child protection cannot be separated from the main goal of realizing child welfare which is basically an integral part of social welfare. this does not necessarily mean that the welfare or interests of children are under the interests of society, but it must be seen that prioritizing the welfare and interests of children is essentially part of the effort to create social welfare (marlina, 2009; 158). bahder johan nasution said that; the understanding of the concept of justice must be translated in relation to pancasila, then linked to the interests of the indonesian nation as a nation that must experience justice. therefore, in relation to legal arrangements according to pancasila justice, these regulations are carried out through regulations that protect the nation, namely protecting humans passively (negatively) by preventing arbitrary actions, and actively (positively) by creating humane social conditions that are humane. enabling the social process to take place fairly, so that in a fair manner, humans get ample opportunity to develop all of their human potential as a whole. protection in this case means that the sense of justice that exists in the conscience of indonesian people must be fulfilled. in this sense, the concept of justice according to the view of the indonesian people is defined as a virtue or truth. such understanding starts from the view of the concept of justice which is based on the precepts of the one and only godhead with just and civilized human principles. the one and only divine precepts are the basis for leading the ideals of the state, which give souls to the efforts to organize what is right, just and good, while the just and civilized human principles are the continuation of the actions and practices of life from the basics that lead earlier. the basis of just and civilized humanity must follow, in series with the first. its location cannot be separated because it must be seen as a continuation into the life practice of ideals and deeds towards god almighty. this concept of justice not only becomes the legal basis for the life of the nation, but also serves as a guideline for the implementation and objectives to be achieved by law. based on roscoe pound's argument which states that law is a tool of social engineering, a legal product should be created to direct society towards a better life order. in the issue of child protection, legal regulations are urgently needed that can become an instrument for community development that is aware of children's rights. with protection, it is hoped that children will be protected and eliminated from all forms of neglect, violence and exploitation, so that children can grow and develop fairly in accordance with their rights and responsibilities, http://creativecommons.org/licenses/by-nc-sa/4.0/ 184 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia so that they become young people with character and integrity as holders of social capital and national development capital. hendra akhadhiat and rosleny marliani said that law is the government's social control. this means that the law is made by those who are authorized to rule with the aim of holding a harmonious life together. in its function as a means of social control, law states normative life conditions as outlined in the form of legislation, litigation, and adjudication. the goals to be achieved are the creation of justice and/or legal certainty, benefits, and a peaceful life (akhadhiat & marliani, 2011: 170). conclusion sexual violence, as a form of social behavior deviance, greatly affects the psyche of the child. the psychological trauma that accompanies it is so deep that it requires special treatment. sexual violence cases are often an iceberg phenomenon, namely cases that appear to the surface are often just the spark, and those that are not monitored or underreported are more than what appear on the surface (reported). considering that this is a very taboo issue and is often considered a family disgrace, so it is often covered up. the rate of violence against children is still high and evenly distributed in almost every region. the government must have a high commitment and more concrete steps in providing protection to children. for prevention efforts, the government is obliged to conduct intensive and extensive socialization and strengthening of public understanding of children's rights, providing access to information to the public about factors that influence violence against children, types of violence against children, and their impact on children and society. services for children who are victims of violence must comply with the minimum service standards for integrated services for women and children victims of violence which include: (a) service for complaints/reports of victims of violence against children; (b) health services for children who are victims of violence. social rehabilitation for children who are victims of child abuse victims of violence; and (c) law enforcement and assistance for children who are victims of violence. repatriation and social reintegration of children who are victims of violence. the government is responsible for organizing programs to build critical awareness about prevention, handling/services for victims of violence, and rehabilitation that reach all levels of society. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 185 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 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(2017). upaya perlindungan hukum terhadap anak korban kekerasan seksual. jupiis: jurnal pendidikan ilmu-ilmu sosial, 9(2), 141-150. http://creativecommons.org/licenses/by-nc-sa/4.0/ 186 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia marlina, m. (2009). peradilan pidana anak di indonesia, pengembangan konsep diversi dan restorative justice. bandung: refika aditama. marlina, t. (2019). pelaksanaan pendampingan psikososial sebagai perlindungan khusus terhadap anak korban kejahatan seksual (studi di dinas sosial pemberdayaan perempuan dan perlindungan anak kab. kuningan)”. syntax literate; jurnal ilmiah indonesia, 4(8), 154-169. mufrohim, o. (2019). implementasi diversi dalam sppa: kajian terhadap efektifitas peradilan pidana anak dalam dimensi restorative justice sebagai upaya penanggulangan penuhnya lpka (studi di polrestabes semarang). thesis. universitas negeri semarang. mulyadi, d. (2018). perlindungan hukum bagi anak korban perkosaan dalam peradilan anak. jurnal ilmiah galuh justisi, 6(2), 170-183. mulyadi, l. (2007). kapita selekta hukum pidana kriminologi dan viktimologi. jakarta: ghalia indonesia. nasution, b. j. (2011). negara hukum dan ham. bandung: mandar maju. noor, a. r., suhadi, s., & rizqia, g. p. (2019). perlindungan hukum terhadap anak korban kejahatan seksual yang dilakukan oleh anak di kota balikpapan. lex suprema jurnal ilmu hukum, 1(1), 32-49. pertiwi, r. (2020). hak restitusi anak korban kejahatan seksual. pancasila and law review, 1(1), 29-37. rahman, n. (2021). kebijakan perlindungan anak korban kejahatan seksual di cirebon. jurnal hukum & pembangunan, 50(3), 619-632. restia, v., & arifin, r. (2020). perlindungan hukum bagi anak sebagai korban kekerasan dalam rumah tangga. nurani hukum, 2(1), 23-31. rizky, m. n., fitriani, r. i., sudibyo, m. w., husnasari, f. a., & maulana, f. (2019). perlindungan hukum terhadap anak korban eksploitasi seksual komersial melalui media sosial. media iuris, 2(2), 197-216. sumirat, i. r. (2017). perlindungan hukum terhadap perempuan dan anak korban kejahatan perdagangan manusia. jurnal studi gender dan anak, 3(01), 19-30. wahyuningsih, s. e. (2016). perlindungan hukum terhadap anak sebagai korban tindak pidana kesusilaan dalam hukum pidana positif saat ini. jurnal pembaharuan hukum, 3(2), 172-180. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 553 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article the study on additional criminal imposition through counseling compliance in domestic violence crime simplexius asa1 1 university of nusa cendana, kupang, indonesia  asasimplexius@yahoo.co, cited as asa, s. (2021). the study on additional criminal imposition through counseling compliance in domestic violence crime. journal of law and legal reform, 2(4), 553-568. https://doi.org/10.15294/jllr.v2i4.48113 submitted: december 7, 2020 revised: march 11, 2021 accepted: july 11, 2021 abstract the domestic violence law stipulates an alternative for judges to impose additional penalties in the form of referrals for counseling aiming at providing protection to victims, either as preventive measures or preventive ones. there are three important principles that should frame the assistance provided to the victims by the law enforcers, health workers, social workers, companion volunteers, and spiritual counselors namely: (1) protection to the victims, (2) sensitivity to the interests of the household, (3) leads to household unity and harmony. this research is designed as a normative research based on documentary research, while the analysis of the collected data is carried out and presented in a qualitative-descriptive manner. this study concludes three important things. first, additional punishment in the form of orders for journal of law and legal reform (2021), 2(4), pp. 553-568 doi: https://doi.org/10.15294/jllr.v2i4.48113 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i4.48113 https://doi.org/10.15294/jllr.v2i4.48113 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 554 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia perpetrators of domestic violence crimes to attend counseling so that the perpetrators can be aware of their actions and willing to change not to commit acts of violence again. second, the implementation of counselling the perpetrators of domestic violence should take into consideration judicial and sociological requirements when providing counselling as an additional penalty in the form of orders. third, study finds that attending counseling benefits the family in maintaining the unity of the family and that the children can be raised in a more conducive atmosphere. the weakness of the approach is that the process is time consuming and requires the deployment of more resources. keywords: additional penalty; counseling, domestic violence. introduction in cases of domestic violence, the main victims are women and children that requires special attention and treatment. the reality today is that cases of violence against women and children do not only occur in the public sphere, but also in the household as private sphere. in one hand, domestic violence in some of its gradations is a criminal act which therefore requires punishment, but on the other hand it is also necessary to consider the position of the perpetrator as part of the integrity of the family which is the smallest community in the life of society, nation, and state. law number 23 of 2004 concerning domestic violence (uu kdrt) has mentioned and categorized forms of violence that include domestic violence into four categories, namely: 1. article 6 of the domestic violence law concerning physical violence, namely acts that cause pain, fall ill or seriously injured. 2. article 7 of the domestic violence law concerning psychological violence, namely acts that result in fear, loss of self-confidence, loss of ability to act, feelings of helplessness and/or severe psychological suffering. 3. article 9 of the domestic violence law concerning sexual violence, namely forcing sexual relations carried out against people who live within the scope of the household, including forcing sexual relations against one person within the scope of his household with another person for commercial purposes or certain purposes. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 555 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 4. article 9 of the domestic violence law concerning household neglect, namely the act of neglecting people within the household, even though according to the law that applies to him or because of an agreement or agreement he is obliged to provide livelihood, care or maintenance to that person, including the actions of any person that results in economic dependence by limiting or prohibiting proper work inside or outside the home, so that the victim is under the control of that person. further, regarding the four categories of domestic violence, the domestic violence law is also expressly and regulated in chapter vii with the title criminal provisions. the criminal system that is regulated is an alternative criminal, consisting of two choices, namely imprisonment or fines. the alternative criminal and criminal system as referred to here, in its implementation implies that the judge only chooses one of the two available options. the main crimes regulated in the domestic violence law consist of two versions, namely: 1. the first version, regulated in several provisions, namely article 44, article 45 and article 46 adopts a general maximum criminal determination system in which the legislators only stipulate the maximum limit of the sentence imposed. the maximum imprisonment which is regulated under the general maximum system is imprisonment for a period of 15 (fifteen) years, while the maximum fine is determined according to the general maximum system of rp. 36,000,000 (thirty-six million rupiah). 2. the second version is the provision in the domestic violence law which adheres to a special minimum and maximum criminal determination system, in which the lawmakers have set a minimum (lower limit) and maximum (upper limit) limit of the sentence imposed by a judge. this provision can be found in article 47 and article 48 of the domestic violence law. in the domestic violence law, especially in article 50, an alternative has also been set for judges to impose additional penalties in the form of referrals for counseling. in the general explanation of the law, the spirit (originally intend) is taken as a reference for judges in imposing additional penalties/punishments, namely primarily as an effort to provide protection to victims, both preventive and repressive. there are three important things, namely that law enforcers, heath workers, social workers, volunteers, and spiritual counselors need to: (1) protect victims, (2) be sensitive to household interests, (3) lead to household unity and harmony. more details can be quoted as follows: “responsive to the interests of the household which from the beginning was directed at the unity and harmony of the household.” http://creativecommons.org/licenses/by-nc-sa/4.0/ 556 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia specifically, regarding additional penalties/criminals for perpetrators who commit criminal acts, it is regulated in the provisions of article 50 of the domestic violence law, namely: a. restrictions on the movement of the perpetrator, both aimed at keeping the perpetrator away from the victim within a certain distance and time or limiting certain rights of the perpetrator as stipulated in article 50 paragraph (1); b. determination of perpetrators to participate in counseling programs under the supervision of certain institutions, as stated in article 50 paragraph (2). regarding the provisions of letter b, it is emphasized in the explanation of the domestic violence law, that what is meant by "certain institutions" are institutions that have been accredited to provide counseling services for perpetrators. for example, hospitals, clinics, counselor groups, or those with expertise in providing counseling for perpetrators for a certain period of time. this provision is intended to give freedom to judges so that they can impose a probationary sentence with a view to providing guidance to the perpetrator and maintaining the integrity of the household. the general guideline in imposing a decision containing a sentence is that the judge is obliged to impose one of the main penalties (imprisonment or a fine) plus one or two additional penalties available. it appears briefly from the provisions of article 50 of the domestic violence law above that the provisions of letter a are more aimed at perpetrators of serious domestic violence crimes, which are very dangerous to the victim. in such case, the judge needs to impose two additional sentences at once. while the provisions of letter b, are more aimed at perpetrators of domestic violence crimes that endanger the lives of family members but need psycho-social therapy to help change behavior that leads to improving the perpetrator's inner atmosphere and repentance as well as intentions and promises not to repeat the actions they have done. here it appears that the guidance for the perpetrators is directed so that they can (re)maintain the integrity of the household. on the one hand, practical experience so far has shown that domestic violence is an early indication and a threat to family integrity. on the other hand, the family is recognized as occupying a strategic position because it is the smallest unit of society which then develops into a larger community until finally forming the society of a nation, in other words, the family is the foundation of the nation's society. efforts to form, develop, maintain, and prosper the family are efforts to maintain the community of a nation. the understanding that the family http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 557 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia occupies a strategic position in building a civilized nation is taught, even commanded in religion. kupang is one of the developing cities in indonesia and has become a barometer of urban development in ntt. kupang is a city located in the southernmost region of indonesia as well as the capital of the province of ntt. the majority of the population is christian 85 (%), both protestant 50 (%) and catholic 35 (%). christianity generally discourages (even forbids) divorce. in this case, intensive and continuous counseling plus assistance and trauma healing are non-negotiable to maintain the integrity of the family. according to kupang city criminal investigation unit head, ipda boby j. mooy nafi, sh., msi, every year there are no less than 100 – 125 cases of violence reported, an average of 25% of which are domestic violence cases. from various sources and estimation results, it is estimated that the number of domestic violence cases reported to the police is only 5% of the facts that were occurred in the community. women only decide to report to the police if they have suffered serious physical injuries and or because the neglect by their partners has caused prolonged suffering. data on domestic violence cases collected at the kupang city police resort as shown on table 1. table 1 ∑ domestic violence cases reported to the city police of kupang in the last 3 years no year case type ∑ case case status ∑ / % revoked ∑ / % forwarded 1 2017 physical violence 32 29 / 90,63% 3 / 9.37% non-physical violence (abandonment) 11 10 / 90,91% 1 /9.09% 2 2018 physical violence 35 29 / 82.86% 6/ 17.14% non-physical violence (abandonment) 7 6 / 85.71 1 / 14.29% 3 2019 physical violence 30 28 / 93.33% 2 / 6.67% non-physical violence (abandonment) 12 9 / 75.00% 3 / 25. 00% 4 2020 (june) physical violence 17 15 / 88.24% 2 / 11.76% non-physical violence (abandonment) 8 6 / 75.00 2 / 25.00 % source: kupang city police’s domestic violence cases data: 2017-2020 the data above shows that every year on average 80-85 (%) cases of domestic violence that have been reported to the police (kupang city resort) are http://creativecommons.org/licenses/by-nc-sa/4.0/ 558 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia revoked by the (reporter/victim). field studies identify and confirm several basic reasons, including: (1) victims do not want cases of domestic violence to be known to the public, usually because victims perceive that reporting to the authorities will only prolong the family disgrace; (2) the victim does not want to have too long to deal with/with the police; and (3) the victim on the one hand only wants that there is a lesson to the perpetrator while on the other hand he wants the case to be resolved immediately, there is no need to go through a lengthy legal process and so that the perpetrator (who is the victim's husband) can immediately return to life. household/family. the facts above actually confirm the opinion that has long been believed to be true that domestic violence has its own characteristics, namely where the victim is dependent on the perpetrator. further on the characteristics of domestic violence, lidwina inge nurcahyo & choky r. ramadhan stated: “the issue of violence against women was born from the inequality of power relations between men and women in the household scope. unequal power relations are one of the roots of violence against women. inequality is exacerbated when one party has more control over the victim. this control is formed because of mastery over knowledge resources, economy, and also public acceptance (social status/social modality)”. the study conducted by moerti hadiati soeroso identified several triggering factors for perpetrators of domestic violence such as financial problems, jealousy, child problems, parent problems, sibling problems, politeness problems, past problems, misunderstanding problems, problems not cooking, and husband wants to win alone. as a result, not only the wife but also the children suffer. it seems that cases of domestic violence do not only have special characteristics but also require special attention, handling and treatment. as initial data, the following is presented the decision of the rote ndao court in the domestic violence case, namely court decision number 41/pid.sus/2015/pn.rno dated 20-01-2016 which has permanent legal force where the defendant is brought to trial for violating the provisions article 44 paragraph (1) of the domestic violence law number 23 of 2004. the ruling in question basically states: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 559 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1) the defendant richy ronaldo kameo has been legally and convincingly proven guilty of committing a crime: committing a crime of physical violence in the household; 2) sentencing the defendant yudhi hariyanto bin subiyantoro, therefore, with imprisonment for 6 (six) months; 3) determine that the period of detention that the defendant has served is deducted entirely from the sentence imposed; 4) determine that the defendant remains in custody; 5) charge the defendant a court fee of rp. 2,000. (two thousand rupiah); referring to the decision quoted above, it is clear that although it contains a sacred intention, namely to provide the main place for saving families and/or households, the provisions of article 50 of the domestic violence act have not been or have not been (ever) considered and implemented through a judge's decision. many obstacles can be identified as causes, including: the unavailability of adequate counseling services; the unavailability of the number of professional counselors who can provide certain counseling services according to the needs of perpetrators of domestic violence crimes; unavailability of a referral system; and so forth. method the research is designed as normative research based on a documentary research, while the analysis of the collected data is carried out and presented in a qualitative-descriptive manner. the main source of data needed in the study is court decisions on domestic violence cases combined with library materials obtained from existing literature searches such as journals, published research reports and literature. furthermore, to enrich the findings in the study, primary data was collected through interviews (interviews) and/or in-depth interviews with resource persons/informants (interviewees). theoretically, document study is also referred to as literature review, which is a study based on existing documents in the form of written library materials, as well as non-library materials in the form of recordings, virtual forms, and films. creswell added that the documents referred to include public documents such as minutes of meetings and newspapers and discussions via email. in this study, data collection activities are carried out to obtain and collect secondary data or legal materials, consisting of primary legal materials in the http://creativecommons.org/licenses/by-nc-sa/4.0/ 560 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia form of laws and regulations related to domestic violence, both those that have been in effect and those currently in force in indonesia as well as secondary legal materials in the form of research reports, writings from experts both in the literature and published through journals. some of the data collected is then processed and/or adapted before being presented. secondary legal materials are also obtained through internet searches (www), local, national, and international magazines and newspapers. to support the data obtained from documentary research, primary data collection was also carried out through interviews (interviews) and/or in-depth interviews (qualitative interviews) with selected and determined policy makers to be interviewed (interviewees) as resource persons (informants). interviews in qualitative studies are intended to obtain in-depth information about the research topic. the imposition of obligation of counseling in the rulling of domestic violence crime the order for perpetrators of criminal acts to take part in a counseling program is included in the judge's decision when ending the handling of a domestic violence case. the true verdict is a final statement containing conclusions about all the facts obtained through evidence. the final conclusion of the judge consists of three types/choice of decisions. first, a decision containing a sentence (dutch: veroordeling) is a decision that is handed down if the court is of the opinion that the defendant is guilty of committing a crime as charged to him. second, a decision containing acquittal (dutch: vrijspraak) is a decision that is handed down if the court is of the opinion that from the results of the examination at trial, it turns out that the guilt of the defendant as charged against him is not legally and convincingly proven. third, the decision that contains the release of all lawsuits (dutch: ontslaag van alle rechtsvervolging) is a decision that is handed down if the court is of the opinion that the act charged with the defendant is proven, but the act does not constitute a criminal act. regarding domestic violence where the perpetrator was given an order in the form of a sentence, it is possible for the judge to also impose additional punishment in the form of an order to follow counseling for the recovery of psychological conditions. this institution is still relatively new so that in its implementation there are obstacles and obstacles, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 561 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia additional crimes that are oriented towards restoring the psychological condition of domestic violence perpetrators are becoming known and experiencing rapid development through therapeutic jurisprudence which since and in the last three decades has greatly influenced the development of philosophy and/or legal theory related to the study of social behavior, psychology, and mental health. in several countries, such as australia, new zealand, and the united states, they have operationalized and institutionalized orders for counseling through the family court. the family court is actually a kind of pre-trial institution, or a preliminary trial before the actual court process takes place. through the mechanism of the family court as an institution that conducts a preliminary examination, the risk of imposing a more severe and serious criminal offense can be avoided, unless the counseling program fails and/or cannot be fulfilled completely by the perpetrator. taking into account the main benefit of the regulation and imposition of additional criminal offenses in domestic violence in the form of an order to take part in counseling both family counseling programs and/or specifically counseling for perpetrators of domestic violence, it is deemed necessary to carry out a research that generally aims to gain perspective, knowledge and insight as well as learn best-practice in the field of counseling for suspects, defendants and convicts/convicts of domestic violence. the results of the study are expected to be used as guidelines for law enforcement officials in the integrated criminal justice system, more specifically for judges in imposing additional penalties for perpetrators. on the other hand, directly or indirectly, it is a juridical effort that can be done to maximize the protection of victims, especially paying attention to the integrity and harmony of their household. based on the description of the background and the statement of the problem above, the research questions set out in this study are: 1. why is the additional punishment in the form of an order for perpetrators of domestic violence crimes to follow the counseling stipulated in the law? 2. what are the requirements that must be met so that additional penalties in the form of orders to follow counseling for perpetrators of domestic violence can be implemented? 3. what are the advantages and disadvantages of additional penalties in the form of orders for perpetrators of domestic violence crimes to follow counseling? http://creativecommons.org/licenses/by-nc-sa/4.0/ 562 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as is well known, law number 23 of 2004 concerning domestic violence regulates in chapter vii with the title criminal provisions, especially in article 50 which stipulates alternatives for judges to impose additional penalties in the form of referrals for counseling. in the general explanation of the domestic violence law, the spirit (originally intend) becomes a reference for judges in imposing additional criminal/punishments, namely primarily as an effort to provide protection to victims, both preventive and repressive. there are three important things, namely that law enforcers, heath workers, social workers, volunteers, and spiritual counselors need to: (1) protect victims, (2) be sensitive to household interests, (3) lead to household unity and harmony. theoretical and philosophical study of counseling as additional sanction on domestic violence cases therapeutic jurisprudence is a school of thought in philosophy and legal science that developed along with social science in general and behavioral science in particular, based on the assumption that everything that comes from judges, whether actions in various ways and forms, words and/or orders that are ordered judges can greatly influence someone who is facing an examination in a courtroom, both psychologically and physically. based on this assumption, it is deemed necessary to creatively develop a legal function that contains therapeutic value through judges, but without violating the juridical rules and/or values that are generally adopted by judges in court. regarding the above, winick and wexler in an article entitled "judging in a therapeutic key: therapeutic jurisprudence and the courts," stated: therapeutic jurisprudence proposes that we use the tools of the behavioral science to study the therapeutic and anti-therapeutic impact of the law and that we think creatively about improving the therapeutic functioning of the law without violating other important values, such as … due process concerns. still in line with the views of winick and wexler regarding therapeutic jurisprudence as above, anleu and mack stated, a therapeutic jurisprudence approach can also involve the courts or judicial officers working more closely with human services personnel to address various social and personal problems, including drug-abuse and addiction, homelessness, unemployment and lack of works – related and parenting skills. this demonstrates the legal system's interest in http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 563 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and engagement with the antecedent causes of crime or behavior that with in a person's court appearance. it should be underlined once again that the purpose of this study is to study the functionalization and functionality of the mechanisms (processes and procedures as well as steps) and counseling programs/activities carried out by law enforcement officials in case judges (but including investigators and public prosecutors in integrated criminal justice system). the expected results are the availability of best practice data (strengths and weaknesses, advantages and disadvantages, advantages and disadvantages), programs and activities, processes and procedures as well as regulations related to the implementation of counseling provided by law enforcement officials to perpetrators of domestic violence crimes on the one hand and maximum efforts are made to provide protection to victims, with particular attention to the integrity and harmony of their household. additional punishment in the form of orders for perpetrators of domestic violence crimes to attend counseling is intended so that the perpetrators can realize their actions, repent and or promise not to commit / commit violence again and the return of harmonious relationships with their wives and children in order to achieve the ideals of marriage promised before witnesses and priests / priests at the time of making sacred marriage vows and receiving the sacrament of marriage in the church. additional criminal conditions in the form of counseling the additional criminal imposition in the form of an order to follow counseling, although it contains the intention to save the family, but in its implementation and enforcement requires several mandatory tools. during the study carried out in kupang city, no data and facts were found that lead to the fulfillment of software and hardware to implement the judge's decision which imposed additional penalties in the form of orders to follow counseling. the software in question, such as the number of trained counselors who are registered and registered as well as having academic competence and juridical competence in carrying out counseling based on the judge's order, must be implemented for convicts. furthermore, related to software are the counseling curriculum, counseling programs that are curated and adjusted to the number and frequency and length of additional penalties imposed, re-programs for those http://creativecommons.org/licenses/by-nc-sa/4.0/ 564 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia who fail and or further processes if the convict does not meet the program, schedule and number of counseling curricula/scheduled. the shell tools referred to here are the infrastructure and facilities that are needed and have been provided by the state through the spp to carry out and implement counseling for convicts. the person in charge and manager of the infrastructure and facilities, accessibility, and affordability of the convict in fulfilling the judge's order that imposes an additional penalty in the form of an order to follow. furthermore, so that additional penalties in the form of orders for perpetrators of domestic violence crimes to attend counseling can be implemented properly, the study identifies and concludes two important requirements, namely juridical requirements, and sociological requirements. the juridical requirement is that the judge must order the defendant to attend counseling, either at his own expense or at the government's expense; where and how counseling is scheduled and implemented; who is the counselor (both private and government) who is responsible for providing counseling, the requirements to declare the success or failure of the counseling process. before determining that the convict undergo counseling, the judge needs to ensure and/or must be proven convincingly or at least it can be proven that the defendant only made a mistake, did not intend to cause physical and psychological suffering to the victim. in court proceedings, it is necessary to observe the motive or strong will of the perpetrator when do domestic violence; tools used to carry out domestic violence; modus operandi. sociological requirements such as other things that accompany the behavior of domestic violence carried out by the perpetrator such as the presence of a third person who is more desirable than his current partner (victim), the victim's job, the job or profession he carries out in financing his life and family life, the perpetrator's income, family expenses , lifestyle and consumption patterns of the family, as well as the economic burden on the family borne by the perpetrator and/or other things that may prevent the perpetrator of domestic violence from being able to realize and regret his actions. advantages and disadvantages of counseling as an additional sentence one of the important aspects to capture the urgency of imposing additional penalties by judges in the form of orders to attend counseling is an academic http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 565 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia scientific study related to the advantages and disadvantages of the institution. for judges, the option to impose additional penalties in the form of orders to take counseling will only be chosen if on the one hand it creates a deterrent effect for the perpetrator and is a commensurate reward, the same as the perpetrator's actions. likewise for the perpetrator, the desire to fulfill the counseling program imposed by the judge can only be chosen and followed if the perpetrator feels guilty and wants to return to repairing the disharmony condition in his family. the study also identified that if the additional punishment in the form of an order for perpetrators of domestic violence to follow counseling can be imposed and carried out properly by the perpetrator, the family can be maintained, and children can be raised in a more conducive family atmosphere. for religious communities such as in indonesia in general and in the province of east nusa tenggara in particular, all efforts made to maintain the family are the greatest efforts that must be pursued. it should be noted that the family is the smallest community that is the main and inseparable part in building the nation and state community, so maintaining and strengthening the family institution is as serious as maintaining and strengthening the indonesian nation and state community. the disadvantage is that the process is time consuming and requires the mobilization of more or more resources. conclusion this study concluded and highlighted that additional punishment in the form of orders for perpetrators of domestic violence crimes to take counseling is intended so that the perpetrators can realize their actions, repent and or promise not to commit/commit violence again and return to a harmonious relationship with their wives and children to achieve their ideals of marriage. promised earlier. in order that additional punishment in the form of orders for perpetrators of domestic violence crimes to take counseling can be implemented properly, the study identifies and concludes two important requirements, namely juridical requirements, sociological requirements. the juridical requirement is that the judge must order the defendant to attend counseling, either at his own expense or at the government's expense; where and how counseling is scheduled and implemented; who is the counselor (both private and government) who is responsible for providing counseling, the requirements to declare the success or failure of the counseling process. additional penalties in the form of orders for perpetrators of domestic violence crimes to follow counseling can be imposed http://creativecommons.org/licenses/by-nc-sa/4.0/ 566 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and carried out properly by the perpetrators, so that families can be maintained, children can be raised in a more conducive family atmosphere. for religious communities such as in indonesia in general and in the province of east nusa tenggara in particular, all efforts made to maintain the family are the greatest efforts that must be pursued. it should be noted that the family is the smallest community that is the main and inseparable part in building the nation and state community, so maintaining and strengthening the family institution is as serious as maintaining and strengthening the indonesian nation and state community. the disadvantage is that the process is time consuming and requires the mobilization of more fund or more resources. to facilitate the implementation of the judge's decision which contains an order to take counseling as an additional decision it is recommended to recruit and train professional counselors who understand domestic issues, especially on the motives of the perpetrators, causes and reasons for domestic violence and are able to find and offer solutions for perpetrators of domestic violence crimes who are ordered to attend counseling as well as to provide facilities and infrastructure as well as adequate programs and curriculum in implementing counseling for perpetrators of domestic violence. references ciciek, f. (2005). jangan ada lagi kekerasan dalam rumah tangga. jakarta: gramedia pustaka utama. garner, b. a. (ed). (1999). black’s law dictionary 8th editions. thomson & west. garner, b. a. (ed). (2014). black’s law dictionary 10th editions. west group. katjasungkana, n., & damanik, a. (2004). kejahatan yang tak dihukum: studi kasus kekerasan domestik. jakarta: lbh apik jakarta. luhulima, a. (2000). pemahaman bentuk-bentuk kekerasan terhadap perempuan dan alternatif pemecahannya. jakarta: kelompok kerja “convention watch” pusat kajian wanita dan jender universitas indonesia. nurcahyo, l. i., & ramadhan, c. r. (2016). kekerasan terhadap perempuan dalam peradilan pidana: analisis konsistensi putusan. jakarta: aipj, mappi fhui, lbh apik jakarta. reinhardt, g., & cannon, a. (eds). “australian magistrates, therapeutic jurisprudence and social change – transforming legal process in court and beyond,” a collection of referred papers from the 3rd international http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 567 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conference on therapeutic jurisprudence, in isharyn roach anleu and athy mack, perth, western australia 7-9 june 2006). soeroso, m. h. (2010). kekerasan dalam rumah tangga dalam perspektif yuridisviktimologis. jakarta: sinar grafika. suhasril, s. (2016). perlindungan hukum terhadap anak dan perempuan. jakarta: rajawali press. tim penulis agupena. (2016). pappatamma: perlindungan perempuan dan anak berbasis kearifan lokal di indonesia. yogyakarta: deepublish. wattie, a. m. (2002). kekerasan terhadap perempuan di ruang publik; fakta, penanganan dan rekomendasi. yogyakarta: ppk dan ford foundation. winick, b. j., & wexler, d. b. (eds). (2003). judging in a therapeutic key: therapeutic jurisprudence and the courts. durham nc, carolina: academic press. legal document putusan pengadilan nomor 41/pid.sus/2015/pn.rno (bht).( tanggal 20-012016). undang-undang nomor 23 tahun 2004 tentang penghapusan kekerasan dalam rumah tangga. http://creativecommons.org/licenses/by-nc-sa/4.0/ 568 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia “the guarantee of safety in a battering relationship can never be based upon a promise from the perpetrator, no matter how heartfelt. rather, it must be based upon the self-protective capability of the victim. until the victim has developed a detailed and realistic contingency plan and has demonstrated her ability to carry it out, she remains in danger of repeated abuse.” judith lewis herman trauma and recovery: the aftermath of violence from domestic abuse to political terror http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.goodreads.com/work/quotes/530025 https://www.goodreads.com/work/quotes/530025 journal of law & legal reform volume 1(3) 2020 i © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia editorial legal development and globalization: some contemporary issues in indonesia and global context ridwan arifin universitas negeri semarang, managing editor journal of law and legal reform  ridwan.arifin@mail.unnes.ac.id when there is society, there always law, ubi societas ibi ius, has been impressed us that society always changes everyday and it impacted to the law enforcement itself. the inability of the law to respond the rapid changes even disruptive changes in the society raises its own problems in one hand, and challenges in the other hands. at this third issue, journal of law & legal reform volume 1 issue 3 (april 2020) presents some articles both original research articles and review articles from various institution and country. at this issue, the editor team highlight the focus theme “law and development in disruptive era (indonesia and global context)” to give a high impression that this volume not only debating the contemporary issues concerning to legal development, but also the impact of law changes or law reform in the society itself. this volume presents nine research articles and four review articles from indonesia and nigeria. some articles highlight a very interesting issues, and some other very controversial issues in law changes in society and its implication. article written by muhajirin & ismail, theft with violence in criminology aspect: how people dealing with law, highlights the aspect of criminology in theft crime. they exposed how someone can be theft and what factors affected. they used some criminology theories to analyze the facts and conditions. journal of law and legal reform (2020), 1(3), pp. i-iv doi: https://doi.org/10.15294/jllr.v1i2.37057. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35406 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf ii journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia another papers, effectiveness of treatment and recovery of domestic violence victims on semarang regency, written by christophorus divo shubma cahyaningutomo tried to expose the phenomenon of domestic violence in indonesia especially in semarang regency and how the protection for the victims of that crime. he elaborated some data and theories concerning to victim protections, and how government provide an equal justice and protection for victims of domestic violence. from his research, he emphasized that supporting facilities for victims has been conducted by several institution. implementation of counseling by bhabinkamtibmas in preventing the spread of hoax in kebumen police station, written by reyhan kusuma and the role of the nusantara task force in preventing political vulnerability in the pati police jurisdiction, by arindra wigrha pratama have different perspectives. they analyze the police roles to maintain the public security in certain police jurisdiction. reyhan kusuma highlights the role of bhabinkamtibmas as one of units in police department on preventing hoax and fake news in the society. he analyzed, how this unit progressively decrease the spreading of hoax news in one hand and increase the public awareness to social medias and good news in another hands. in the same context, arindra wigrha pratama exposed and analyzed the role of nusantara task force as one of units in police department to prevent the political vulnerability in pati central java. he analyzed some impacts post general elections in indonesia. nur kholis, parliamentary threshold and political rights limitation, has same perspective with previous paper, arindra wirgha pratama. both kholis and pratama analyzed concerning to political rights, as well as political vulnerability. however, nur kholis analyzed from the context of constitutional and administrative law, where he explained the impacts of parliamentary threshold from political rights concept. he highlighted that parliamentary threshold in one hand has been limited the rights of people especially political rights, but another hands its give more effective and efficient for democracy in indonesia. another papers, protection of disaster responsibilities in the central java province: how the law protect the volunteer, written by hilda maulida, position of the victim in criminal acts illegal logging by redentor g.a. obe, ali masyhar, political implications of the law in the formation of law no. 13 of 2003 concerning workers protection in employment agreement specific time (east/pwkt) by muhammad bram glasmacher, dynasty politics in indonesia: tradition or democracy by hagi utomo mukti, rodiyah, dani muhtada, and press roles in democracy society by lailasari ekaningsih http://creativecommons.org/licenses/by-nc-sa/4.0/ https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35421 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35420 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/36621 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/36358 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35460 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35418 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35953 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/36623 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/36007 journal of law & legal reform volume 1(3) 2020 iii © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in this third edition, we present thirteen papers (research and review articles) and one current commentary. we thank all the authors, contributors and reviewers who were involved directly or indirectly in the preparation and publication of this third edition. in addition, our gratitude also goes to the indonesian legal journal management association (apjhi) for all its support, and the law masters study program at the faculty of law, semarang state university. i personally thank dr. rodiyah spd sh msi (dean of the faculty of law), dr. indah sri utari sh mhum (chair of the master of laws program), and the entire team of the journal of law and legal reform. this year, the journal of law and legal reform continues to improve the quality of journal content and online journal page display with several national and international indexations. we also would like to extend our thankfulness to all reviewers, editorial boards, and associate editors of journal of law and legal reform for their invaluable support. after professor frankie young from ottawa university, canada, we also reached the collaboration with palermo university italy. furthermore, we also would like to inform all authors and readers, that starting 2020, our journal has been indexed by doaj system, we also have intimate cooperation with several agencies in improving the quality of journals, among the general election supervision board, several law firms, government agencies, and several non-governmental organizations in participating in providing input and suggestions for the future development of our journal. we also provide wide opportunities for anyone who has an interest in our journal. we hope that, through the publication of this third edition of the journal, it will be able to contribute to legal scholarship and discourse on the development of law in indonesia in a global context. due to our university policy concerning to paperless policy, we cannot provide the print version of the journal for all authors. however, author can download the full version of the issue at the journal’s website (ready to print file), also with the certificate of authorship and letter of acceptance that can be downloaded directly on our website (online certificate). http://creativecommons.org/licenses/by-nc-sa/4.0/ iv journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law adagium lex nemini operatur iniquum, neminini facit injuriam the law works an injustice to no one and does wrong to no one http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 215 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article how government provide legal protection for trade secrets? idul hanzah alid1, lailasari ekaningsih2 1 postgraduate program, master of laws, universitas negeri semarang, indonesia 2 faculty of law, universitas darul ulum islamic centre sudirman, indonesia  idoel@students.unnes.ac.id cited as alid, i.h., & ekaningsih, l. (2020). how government provide legal protection for trade secrets? journal of law and legal reform, 1(2), 215-224. doi: https://doi.org/ 10.15294/jllr.v1i2.35420 abstract trade secret is a factor in the creation of innovation for a company to maintain its presence in the community. pt. cpm must identify information that is considered confidential trade before making attempts of legal protection of such information, because not all corporate information can be regarded as a trade secret. the identification is done by providing criteria for confidential information such as information that is not known by the public, has economic value, giving a loss if the information leaked and stolen. so pt. cpm has two attempts of legal protection of trade secrets. first, preventively is to have rules and regulations and written agreements between the parties relating to trade secret information pt. cpm. second, repressive of protecting end to the measures for violations occurred. in case of violation, pt. cpm will solve the problem amicably. if it fails, then the next action to decide the employment of actors and reported to the authorities. companies better make a written agreement between the parties in advance and posted to the directorate general of intellectual property rights in order to ensure the protection of the company's trade secrets. keywords: identification, protection law, trade secrets, plus choice makmur submitted: 13 november 2019, revised: 13 january 2020, accepted: 20 january 2020 journal of law and legal reform (2020), 1(2), pp. 215-224. doi: https://doi.org/10.15294/jllr.v1i2.35420. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:idoel@students.unnes.ac.id http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 216 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 215 table of contents ………………………………………………………….. 216 introduction …………………………………………………………………. 216 method …………………………………………………………………………… 217 identification of information considered as trade secret for pt. choice plus makmur, semarang regency, central java …………………………………………………………………... 218 i. production system in pt. choice plus makmur …………… 218 ii. identification of information considered as trade secret for pt. choice plus makmur …………………………….. 218 effort in law protection of the trade secret pt. choice plus makmur …………………………………………………………………... 219 i. effort in law protection of the trade secret in pt. choice plus makmur ………………………………………………….. 219 ii. theory of law protection of trade secret in pt. choice plus makmur ………………………………………………….. 221 conclusion …………………………………………………………………….. 222 references ……………………………………………………………………... 222 introduction indonesian, one of the developing countries, have been applying a tight competition among the business, either micro, middle or high business. the competition occrus in several sectors such as trade and technology. due to this competition, a company need improvement, new innovation and quality to maintain the business so that it will match the development in modern era. semarang, both the city and regency, also have an increasing business competition. semarang regency has some potencies such as, human resources, natural resources and sufficient infrastructure that support the development of investment and business. the building of factories in the industry complex is expected to give multiplier effect and support the local economic income. one of those factories is pt. choice plus makmur (cpm) which then becomes the object of this thesis. pt. cpm manufacturies various kinds of biscuit and coffe. its sale target is indonesian and china.pt. cpm always serves quilified product with continual inovation to maintai n the existence and survival in the business. the information of trade secret of the company support the inovation. an a new company, it needs to protect its trade secrets from illegal action by irresponsible people. law no. 30/2000 about trade secret rules about the trade secrets. if there is another company wants to manufacture the same product, it must have the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 217 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia permission or license agreement. according to law about trade secret no., 30/2000 section 5 (3), trade secret when it has license action with another side. the main action to do is to identify whether an information is categorized as trade secret that must be kept and protected or not. trade secrets is an information that is not known by public either in technology or business, and that has economic value. if an information does not have those criteria, it cannot be called as a trade secret information. the definition of trade secret is information about formula pattern, compilation, program, technique or process that produce economic value in independent, real and potential way (ramli, 2001). an owner or director of a company will not give the information of trade secret to his employee. he will be very careful and through in giving information about trade secret to his employee. the existence of written agreement among all sides is necessary and will be the law power and protection to the company trade secret. it matches the section 1313, 1320 about the legal condition of an agreement and section 1234 about agreement not to give something, to do something or not to do something. from the law point of view, the law protection of trade secret is reasonable to do since the breaking of trade secret will lose the company in economic side. a trade secret becomes an essential factor in honest competition, and it will be the valuable comodity due its high economy value (ramli, 2000). based on the background, the writter states the problem as follows: 1. how can an information be identified as trade secret for pt. choice plus makmur in semarang regency, central jawa ? 2. how does pt. choice plus makmur try to have law protection for its trade secret in semarang regency, central jawa ? method the method used in this research is normative juridical or literature law research. it means the research is done by observing the literature or merely secondary data (soekanto & mamudji, 2013; arifin, waspiah, & latifiani, 2018). the the research of literature will be empowered by studying the real data. the data source is only secondary data which involves primary, secondary and tertiary law material. the characteristic in this thesis is descriptive analysis. the object of the research is pt. choice plus makmur, semarang regency, central jawa. the technique of collecting data in this research is documentation and interview. the data analysis is dones by in quantitaive way through recuction, presentation, conclusion and verification (miles & huberman, 1992). http://creativecommons.org/licenses/by-nc-sa/4.0/ 218 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia identification of information considered as trade secret for pt. choice plus makmur, semarang regency, central java i. production system in pt. choice plus makmur pt. choice plus energi (cpe), estabilished in 2010 and centered in jakarta, is the pioneer of the estabilishment of pt. cpm in semarang regency. choice plus group is a company focused in the mining industry and power and natural resources industry (choice plus energy, 2019). pt. cpm as the combined company of pt. cpe is a private company which focus on the production of qualified biscuit, wafer. potato crackers and instant coffee. for the sales channels, they have set up sales company in hong kong and shenzhen in order to promote the products in different region, for the better service to their customers. the production steps in pt. cpm are grinding, crhusing, weighing, mixing, cutting, ovening, cooling and packing/stacker. all products have fulfilled all export requirements set by indonesian government and they match the agreement exported with the buyer in china. all items have paid the cost of health certificate. besides, pt. cpm have made agreement with its buyer about the product package. ii. identification of information considered as trade secret for pt. choice plus makmur identification is one way done to understand and know the characteristic of a person or thing. what is meant by identification in this research is to identifity an information that considered as secret by pt. cpm. secret information is an information unkwon by public because of its high economic value. it must be protected from illegal action so that it can support the business. according to abdulkadir muhammad, information is known as open and closed information (muhammad, 2010). it can be said that secret information is categorized as closed informtaion which is unknown for public. it will be known only for the people who have authority to keep the secret information. the secret information in this company that categorized as economic secret information, are production system, company prospect, company management, quilified product recipe, sale data and computer system. pt. cpm give limited and general information about product processing and its ingredient. the ingredient in making biscuit are butter, wheat and sugar. this information is an open information that can be knwon by anyone. since trade secret information is very crucial, lab r&d will save those written and softcopy data in a secret place. only lab r&d and the director of pt. cpm will http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 219 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia known about it. at stated in law no. 8/1997 section 8 (1), each company must make note of company activity about the secret information data. it also matches the law of trade section 6 and other bylaws about the way of saving, moving deleting and submitting files sure no longer appropiate with this era. there are factors that determine whether an information is categorized as secret or not: a) how many do people known about it, b) how many do employee and company people known about it, c) what does company do to keep the secret of its information, d) the value of the information for the company and its competition, e) how much effort and cost have been spent, f) the ease and difficulty to get or duplicate the information (sukarmi, 2004). the direct research from the secretary od director and leader lab r&d, it can be stated that pt. cpm has secret information, including: a. important data known only by pointed people. b. data of secret information that is very important as the key in running all the production process in the company. c. if those important and secret data are known by wrong person, it will cause a big company loss and it give bad impact to the company development in the future. d. the information has selling value and economic value that must be protected for the company profile. several information thath kept secret and protected by pt. cpm are: a. computer system. it covers the technology use and management in every activities in pt. cpmfor example is purchasing. b. the technique in operating modern technology machine during all the production stage. c. the publication of brand and its logo. d. the variety of taste. it is a very secret formula for the company that the director gives limited information only to the leader lab r&d, buyer and formula consultant from dutch. e. material data sheet or coa is data about the specification of the basic ingredient used in the production process. effort in law protection of the trade secret pt. choice plus makmur i. effort in law protection of the trade secret in pt. choice plus makmur law protection is a place to take shelter or hide from any violation or infringement under the law or rules or judge”s sentences. philipus m. hadjon (1987) states that law protection of one’s dignity and prestige, and acknowledgement of human rights based on the applied law. philipus m. hadjon states two form of law protection: a. preventive law protection is a protection given by government in order to prevent a violation. http://creativecommons.org/licenses/by-nc-sa/4.0/ 220 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b. repressive law protection is a final protection in the form of company responsibility, fine, prison or additional punishment given to the people who do violation. the two kinds of law protection can be found in pt. cpm. first, as a preventive protection, pt. cpm has a company regulation that rules partnership, workers social assurance, company regulation, penalty and protection for company trade secret. the agreement between the employer and his employee will create a responsibility to keep the company secret and will not break the applied law. the employer does it in order to protect the valuable information (pratiwi, 2014; susanti, 2019). according to santoso (2008), there are several actions to be done to protect the trade secret of the company: a. a company must implement and maintain the policy to protect the company secret. b. give “top secret” label to the written material c. give supervision to the people who can access the company secret and make sure that only the permitted people who can open the secret materials d. save the secret material in the locked drawer by using a security system. e. computer data base must be secured using password. f. if the company is developing certain product which needs a tester, make sure that the tester has signed a contract to keep the company secret pt. cpm has done a work contract with its workers so that they will obey the company regulation and not to break it as stated in pt. cpm regulations section 28 section 1 and 2. in specific section, pt. cpm has a rule about the trade secret rules in section31 abot the company secret. this section covers 4 points that number one states that :”each companyy workers must keep the company secret about the technique, plan and pattern, production process, basic and additional materials, supplier, machinery, management system, new innovation, contracts with any references and buyers and anything about essential thing in the company. this section of law protection gives two essential points, they are giving the clarity about the relationship between the employer ( as the information giver) and employee. this clarity gives the clear explanation about things to do and not to do by the employees. second, by having rules and agreement about the trade secret will be the step to assure that the company about the law when there is a problem with the employee or other sides. pt cpm will also note the trade secret if it make a licenced parthnership with other sides. second, the repressive law protection. if a worker in pt cpm has broken the rules, pt cpm will give a small penalty, administrative penalty, and a big penalty. those penalties are the form of repressive law protection. in section 34, it is stated that when a worker has broken the rules, s/he will get warning, scorsing, wages reduction and a retirement. pt cpm has a good cooperation with cosultant from dutch to improve its product. unlike the subordinated cooperation with its workers, the cooperation withh the consultant is a coordinative cooperation where both sides have the same http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 221 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia position (ramli. 2001). as a result, the agreement with the consultant is to have a cooperation in certain services. according to law of trade secret section 17, if someone is proven to break the agreement of law protection about trade secret, s/he will be threaten of 2 years in prison and fined 300 millions rupiah. as stated in section 35 letter g about the company rules, cpm has penalty for those who reveal the company secret and slander the name of company and its family. cpm will discuss the problem with the worker personally at first. when it does not work, cpm will fire the worker and prosecute him and ask for the loss replacement. ii. theory of law protection of trade secret in pt. choice plus makmur this research uses three theories related to law protection in general, as highlighted by waspiah (2009) (2017), waspiah, latifiani & setiawan (2015), they are: a. risk theory it explains that protection is given to the inventor because of his risky action in inventing his findings. b. reward theory this theory gives rewards for the inventor for his effort in inventing some works or creativity. this theory matches to the company regulation in article 26 paragraph 1 letter d about reward. those workers who do meritorious action and make the company proud of him or her will be given rewards. c. inventive theory. based on reward theory, all the inventors will be very enthusiastic in inventing new innovation and s/he will be more creative. moreover, company will give such kind of incentive to support those research activities. according to trade secrets law no 30 of 2000 as also emphasized and highlighted by arifin (2019), the theoris about trade secret law are: a. theory of property rights this theory states that an invention will be protected although it has not registered yet. the principle of property rights is also mentioned in civil code in article 570. it is stated that an owner can dominate and use a property as long as it does not break the applied rules. this research has found that cpm has the authority to dominate, utilize, and keep its invention, either technology or not, as a secret. it also can utilize and keep its secret formula of its invention as a secret. b. contract theory contract theory or bond is a theory that explains the importance of an agreement between the company and its workers or other sides about company secret information. cpm hhas written agreement in the form of company regulation and http://creativecommons.org/licenses/by-nc-sa/4.0/ 222 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia closed written agreement that not all people can notice such as the written agreement between cpm and formula consultant drom dutch. c. theory of action breaking the law. this theory is appropriate to be used as the basic protection of the trade secret from the sides who are ralate or ont relate to the agreement. this theory can be found in civil code article 365. for example, if cpm finds a worker or other pperson who steals and utilize a secret information without any legal permission, cpm will fire the worker directly and will imprison him/her and ask for compesation. conclusion the paper concluded and highlighted that the riteria of information that considered to be trade secrets are, such as, (1) closed information that cannot be known by public but by the authorities only, (2) having economic value, (3) information that has specification and begins specifically, (4) a lot of effort and cost are needed to develop and protect the information, and (5) a lot of loss will be suffered if the secret is revealed. pt. cpm has two form of effort in protecting the right of its secret trade, such as, preventive law protection is a kind of prevention done by government to avoid a infringement. pt. cpm has made a company regulation and letter of agreement with related sides, for example with formula expert from dutch, and repressive law protection is the final protection in the form of responsibility, fine, prison, and additional penalty given to the law breaker. cpm will give an administrative penalty as stated in in the company regulation article 34. cpm will discuss the problem as a family as the first step. but, when it fails, cpm will fire the worker who breaks the rule and will be imprisoned. according to law no 30 2000 article 17 about trade secret, the one who break the law will get imprisoned for two years and fine 300 millions rupiah in maximum. authors suggest that to avoid the infringement of trade secret, it is essential to make a written agreement among the ralated sides. it is suggested that government must socialize the importance of effort to protect the trade secret to the businessman. references arifin, r., waspiah, w., & latifiani, d. (2018). penulisan karya ilmiah untuk mahasiswa hukum. semarang: bpfh unnes. arifin, r. (2019). indonesian political economic policy and economic rights: an analysis of human rights in the international economic law. journal of private and commercial law, 3(1), 38-49. https://doi.org/10.15294/jpcl.v3i1.18178 choice plus energy, online, http://choiceplusenergy.com/, accessed on 20 october 2019 hadjon, p.m. (1987_. perlindungan hukum bagi rakyat indonesia. surabaya: bina ilmu. indonesian civil code, kitab undang-undang hukum perdata http://creativecommons.org/licenses/by-nc-sa/4.0/ https://journal.unnes.ac.id/nju/index.php/jpcl/article/view/18178 https://journal.unnes.ac.id/nju/index.php/jpcl/article/view/18178 https://doi.org/10.15294/jpcl.v3i1.18178 journal of law & legal reform volume 1(2) 2020 223 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law number 30 of 2000 concerning trade secrets, undang-undang nomor 30 tahun 2000 tentang rahasia dagang law number 8 of 1997 concerning company documents, undang-undang nomor 8 tahun 1997 tentang dokumen perusahaan miles, m.n., &. huberman, a.m. (1992). analisis data kualitatif. translator tjetjep rohendi rohidin. jakarta: ui press. muhammad, a. (2010). hukum perusahaan indonesia. bandung: pt citra aditya bakti. pratiwi, a. n. m. a. d. (2014). perlindungan rahasia dagang setelah berakhirnya perjanjian kerja. thesis. yogyakarta: universitas atma jaya yogyakarta. ramli, a.m. (2000). h.a.k.i: teori dasar perlindungan rahasia dagang. bandung: mandar maju. ramli, a.m. (2001). perlindungan rahasia dagang dalam uu no. 30/2000 dan perbandingannya dengan beberapa negara. bandung: mandar maju. soekanto, s., & mamudji, s. (2013). penelitian hukum normatif suatu tinjauan singkat. jakarta: rajagrafindo persada. sukarni, s. (2004). rahasia dagang sebagai asset bisnis di era globalisasi. jurnal hukum, 14(1), 253-268. susanti, f. (2019). the legal efforts to maintain the authenticity of trade secrets through a license agreement. journal of private and commercial law, 3(2), 71-75. doi: https://doi.org/10.15294/jpcl.v3i2.19746 waspiah, w. (2009). perlindungan hukum melalui pendaftaran paten sederhana pada inovasi teknologi tepat guna studi kasus di kabupaten tegal . thesis. semarang: universitas diponegoro. waspiah, w. (2017). model percepatan komersialisasi paten sederhana pada dunia industri. pandecta: research law journal, 12(2), 183-202. waspiah, w., latifiani, d., & setiawan, a. (2015). the mechanism model of the simplepatent registration (a case study in the environmental small industries semarang). south east asia journal of contemporary business, economics and law, 6(4), 20-27. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jpcl.v3i2.19746 224 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote the scope of our cybersecurity problem is enormous. our government, our businesses, our trade secrets and our citizens' most sensitive information are all facing constant cyberattacks and reviews by the enemy donald trump http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.quotemaster.org/q07475c9ff5239b15afaa24a47e500635 https://www.quotemaster.org/q07475c9ff5239b15afaa24a47e500635 https://www.quotemaster.org/q07475c9ff5239b15afaa24a47e500635 https://www.quotemaster.org/q07475c9ff5239b15afaa24a47e500635 https://www.quotemaster.org/q07475c9ff5239b15afaa24a47e500635 https://www.quotemaster.org/q07475c9ff5239b15afaa24a47e500635 https://www.quotemaster.org/q07475c9ff5239b15afaa24a47e500635 journal of law & legal reform volume 1(1) 2020 177 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article the meaning of the expansion of administrative court that covers factual actions fellista ersyta aji1 1 postgraduate program, master of laws, universitas negeri semarang, indonesia  fellistaersytaaji@gmail.com how to cite aji, f.e (2020). the meaning of the expansion of administrative court that covers factual actions. journal of law and legal reform, 1(1), 177-192. doi: https://doi.org/10.15294/jllr.v1i1.35417 abstract the administrative court and law no. 5 of 1986 on state administrative justice have been provided facilities for the public to sue the government and ask to cancel the decision made by the government. law no. 30 of 2014 on government administration has been stipulated that government administration act more or less supersedes the provisions contained in the law of the state administrative justice. especially in this law which attracts attention is the expansion of object disputes state administration. the object of the state administration dispute in this act is different from its elements to the law of the state administrative justice. one of these is a written stipulation that includes factual action. there is no explanation for the meaning of factual acts in this administrative administration act. therefore, further research is needed in this regard. this study aims to find out and understand the meaning of factual actions in article 87 letter (a) of law number 30 of 2014. this study uses a qualitative approach to the type of research normative juridical. data collection techniques are library study is to collect data conducted by reading, quoting, recording and understanding various literature that have to do with research material. the object of the state administration disputed in law number 5 of 1986 and its amendment has expanded on law number 30 year 2014 on government administration. when the object of the dispute expands, it will affect the decision taken by the legal practitioner in this case is the state administration judge. keywords: state administration dispute objects; written determination; factual action submitted: 28 august 2019, revised: 19 september 2019, accepted: 25 october 2019 journal of law and legal reform (2020), 1(1), pp. 177-192. doi: https://doi.org/10.15294/jllr.v1i1.35417. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i1.35772 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 178 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 177 table of contents ………………………………………………………….. 178 introduction …………………………………………………………………. 178 method …………………………………………………………………………… 180 expansion of objects of dispute in administrative justice based on law number 5 of 1986 concerning administrative justice and amendments to law number 30 of 2014 concerning government administration ……..… 181 i. written determination which also includes factual actions ……..…….………………………………………………………… 182 ii. interpretation of factual actions in article 87 letter (a) of law number 30 of 2014 ……………………………… 183 conclusion …………………………………………………………………….. 189 references ……………………………………………………………………... 190 introduction the existence of law in the rule of law is used as an instrument in managing the life of the state, government, and society. the implementation of governmental and state tasks in a rule of law state that there are legal rules written in the constitution or regulations that are compiled in state constitutional law (ridwan hr, 2013). however, constitutional law cannot stand alone. in carrying out tasks that are technical in nature, require legal assistance from the state administration. the government in carrying out its duties is not merely in the domain of public law, it does not rule out the possibility of being involved in the realm of civilization (bogdanova, 2018). government or state administration is as a legal subject, as a drager van de rechten en plichten or a supporter of rights and obligations. as a legal subject, the government as other legal subjects perform various actions both real actions (feitelijkehandelingen) and legal actions (rechtshandelingen). actual actions (feitelijkehandelingen) are actions that have no relevance to the law and therefore do not cause legal consequences, whereas legal actions according to r.j.h.m huisman in ridwan hr's book, actions based on their nature can lead to certain legal consequences (ridwan hr, 2013). the government as a state equipment, has the authority in carrying out state affairs in the form of government administrative actions or actions. actions taken by governments that violate the law can lead to state administrative disputes, involving civil persons or business entities with state or regional administrative bodies or http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 179 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia officials, both as a result of issuing state administrative decisions, including civil service disputes based on regulations current regulation. state administrative decisions or state administrative decisions issued by the government, are used as objects of state administration disputes. with the issuance of state administrative decisions, it binds the intended person. because, the state administrative decisions element is also a characteristic, namely the written determination that is concrete, individual, final. in other words, the state administrative decisions issued is addressed to someone and does not need approval anymore. however, when the state administrative decisions has been deemed detrimental to related parties (civil persons or legal entities), then the state administrative decisions can be sued in the state administration court. the state administrative court includes the settlement of a state administration act at issue by the community, community agencies, or government agencies. in general, the act in question is a legal act or legal action (administrative rechtshandelig) or administrative law (adminstrastiefrechtelijk) (prajudi, 1983). the formal and material law of state administrative court is regulated in act number 5 of 1986 concerning state administrative court and its amendments. in the act, it is clearly explained about the administrative court and the court. one of them concerns the object of the state administration dispute. there is no article that specifically addresses the object of the state administration dispute, but if understood, the object of the state administration dispute is the state administration decree. as stated in article 1 number (9), that, "state administration decree is a written stipulation issued by a state administration body or official containing legal action on state administration based on applicable legislation, which is concrete. , individual, and final, which cause legal consequences for a person or private legal entity. ”this is the criterion that something can be said to be the state administration dispute that was the object of the state administration dispute, prior to law number 30 of 2014 concerning government administration. in law number 30 of 2014 concerning government administration, there is an expansion of the meaning of the object of the state administration dispute. in this law also explained about the state administrative decisions, article 1 number 7 which says that, "government administration decisions which are also referred to as state administration decisions or state administrative decisions, hereinafter referred to as decisions are written decrees issued by government agencies and / or officials. in the administration of government". it is said that there has been an expansion of the meaning of the object of the state administration dispute because in article 87 of law number 30 year 2014 concerning government administration, the elements of the state administrative decisions must be interpreted, 1. written stipulation which also includes factual action; 2. decisions of state administration agencies and/or officers in the executive, legislative, judicial, and other state administration circles; 3. based on statutory provisions and aupb; 4. final in the broader sense; 5. decisions that have the potential to cause legal consequences; and / or 6. decisions that apply to citizens. http://creativecommons.org/licenses/by-nc-sa/4.0/ 180 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the lements of the object of this dispute have expanded when compared to the state administrative decisions in law number 5 of 1986 concerning state administrative court and its amendments. the state administrative decisions element in letter (a) of this article adds "factual actions" to it. this becomes interesting to be discussed more deeply. as explained above, factual actions are government actions that have no legal consequences. while government actions in han are legal actions that have legal consequences. this will certainly raise questions as to what government actions are intended. it is often misinterpreted that factual action here is legal action, which is equated with onrechmatige overheidsdaad. with the above problems, the author has an interest to examine more deeply through this article with the title, "the meaning of the expansion of the objects of state administration disputes which covers factual actions". based on the above background, the formulation of the problem discussed in this study is, how is the expansion of state administration dispute objects according to law number 5 of 1986 concerning state administrative court and law number 30 of 2014 government administration and how the meaning of factual actions in article 87 letter (a) of law number 30 year 2014. based on the formulation of the problem, the purpose of this study is to find out and understand the expansion of state administration dispute objects according to law number 5 of 1986 concerning state administrative court and law number 30 years 2014 government administration and to know and understand the meaning of factual acts in article 87 letter (a) of law number 30 of 2014. method this study uses a qualitative approach in order to know firsthand how the current expansion of state administration objects and the meaning of factual actions in the expansion of state administration dispute object in law number 30 of 2014 concerning government administration. this research will be prepared using a type of normative juridical research, which is research focused on examining the application of the rules or norms in positive law. this study uses a statutory approach (statute approach) and a case approach (case approach). the statutory approach is used to find out all the legal regulations. in research generally distinguished between data obtained directly from the community and from library materials. the types of data sources for this research include: primary legal materials, namely the 1945 constitution of the republic of indonesia; law number 30 of 2014 concerning government administration; law number 5 of 1986 concerning state administrative court; supreme court circular letter number 4 year 2016 concerning enforcement; formulation of 2016 supreme court chamber plenary meeting results as guidelines for implementing duties for the court. secondary legal materials including thesis, thesis and legal dissertation; legal journals; books and papers relating to state administrative court law; internet. to obtain true and accurate data in this study the following procedure was taken, literature study. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 181 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia expansion of objects of dispute in administrative justice based on law number 5 of 1986 concerning administrative justice and amendments to law number 30 of 2014 concerning government administration the object of the state administration dispute according to article 1 number (9) of law number 51 year 2009 concerning second amendment to law number 5 of 1986 concerning state administrative court is the state administrative decree is a written stipulation issued by an administrative body or official a state that contains state administrative legal actions based on applicable legislation, which are concrete, individual, and final, which cause legal consequences for a person or a private legal entity. if the article is elaborated, then the elements of state administrative decisions are seen according to the law on state administrative justice as follows: 1. written designation; 2. issued by a state administration agency or official; 3. contains legal actions of state administration; 4. are concrete, individual, and final; and 5. causing legal consequences for a person or private legal entity. unlike the case with law number 30 year 2014 concerning government administration. wherein this law also regulates state administration dispute, which is contained in article 87 that, with the enactment of this law, the state administration decree as referred to in law number 5 of 1986 concerning state administrative court as amended by law number 9 of 2004 and law number 51 of 2009 must be interpreted as: 1. written stipulation which also includes factual action; 2. decisions of state administration agencies and / or officers in the executive, legislative, judicial, and other state administration circles; 3. based on the provisions of the invitation and aupb; 4. is final in a broader sense; 5. decisions that have the potential to cause legal consequences; and / or 6. decisions that apply to citizens. judging from the points contained in article 87, it is seen that there are expansion of state administration dispute elements as objects of state administration dispute. the letters a, d, e, and f are the most attention-grabbing for further discussion. because of these letters, it is very noticeable the difference between the state administrative decisions state administrative justice act and the government administration act. http://creativecommons.org/licenses/by-nc-sa/4.0/ 182 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia i. written determination which also includes factual actions according to priyatmanto abdoellah, the object of the dispute needs to be expanded to a written and unwritten determination. this is due to several reasons, including, if seen in practice, it is not uncommon for the government to issue decisions and or take actions that are not written. another reason is also because if only a written decision is the object of a state administration dispute, it is felt that it does not provide legal protection guarantees to the people for unlawful acts by the government. (abdoellah, 2016: 268) in point a, the extension is factual action in the state administrative decisions. factual action is actually not new in a state administration dispute. many cases of factual action have been subject to state administrative disputes, for example demolition cases. but what often becomes a misinterpretation is which court is authorized to adjudicate the dispute. some say factual acts as ood (onrechtmatige overheidsdaad) so that they must be tried in general court under article 1365 of the indonesian criminal code, others say that these factual actions will remain the domain of the ptun if they meet the criteria to be regarded as objects of state administration dispute. depending on the government violates the realm of private law or public law. however, there is no further explanation regarding the separation of judicial competence which is authorized. a) is final in broad sense the elements of the state administrative decisions in the state administrative justice law say that state administrative decisions "... is concrete, individual, and final ...", different from the government administration law which in its state administrative decisions element says "is final in the broad sense". according to the explanation in article 87 letter d, what is meant by "final in the broadest sense" includes decisions taken over by the authorized official's superior. according to tri cahya indra permana, in practice rarely found decisions taken by superiors of officials are made as the object of dispute, instead it is often encountered is a chain decision where a decision is still followed up and is a condition for the issuance of other decisions (permana, 2016) b) decisions that potentially cause legal results in the state administrative justice law it is said that state administrative decisions "has legal consequences". in contrast to the state administrative decisions element in the government administration law which is still "potentially" causing legal consequences it is included in the state administrative decisions element. the meaning "potential" means that it hasn't caused legal consequences. this can lead to legal uncertainty, because it is not certain whether it will really happen or http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 183 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia not. in addition, many people will sue the government because they feel that the government's decision has the potential to cause legal consequences. according to tri cahya indra permana, casuistically, a decision could potentially lead to legal consequences that could be ascertained due to the law. so that the legal standing can still be accepted by the judge as long as the impact can be confirmed scientifically (permana, 2016) ii. interpretation of factual actions in article 87 letter (a) of law number 30 of 2014 state administrative decisions issued by the government to individuals or members of the community has legal force. so, with this state administrative decisions, individuals or community members can be subject to direct sanctions for violations. however, state administrative decisions can also be used by individuals or members of the public as objects of state administrative disputes if the government carries out maladministration related to the state administrative decisions. because when viewed from its nature, state administrative decisions is one-way. ridwan hr said, legal actions that occur in public law are always one-sided or one-sided legal relations (eenzijdige) (ridwan, 2013). the object of the state administration dispute is now expanded with the government administration act. before the government administration act was passed, in the government administration bill there are several factors that influence the emergence of this act, namely, first, the tasks of government today are becoming increasingly complex, both regarding the nature of their work, types of duties and concerning people those who carry it out. secondly, so far the administrators of the state carry out their duties and authorities with standards that are not yet the same, which often results in disputes and overlapping of authorities between them. third, the legal relationship between the administrators of the state and the public needs to be strictly regulated so that each party knows the rights and obligations of each in interacting between themselves. fourth, there is a need to set minimum service standards in the daily administration of the country and the need to provide legal protection to the public as users of the services provided by the executors of the state administration. fifth, advances in science and technology have influenced the way of thinking and working procedures of state administration providers in many countries, including indonesia. sixth, to create legal certainty for the implementation of the daily tasks of the state administration organizers. after the emergence of the government administration act, several provisions in the state administrative justice law and its amendments also experienced changes, one of which was the object of the state administration dispute contained in article 87 which reads, "with the enactment of this law, the state administration decree as referred to in law number 5 of 1986 concerning state administrative court as amended by law number 9 of 2004 and law number 51 of 2009 must be interpreted as: 1. written stipulations which also include factual actions; http://creativecommons.org/licenses/by-nc-sa/4.0/ 184 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. decisions of state administration agencies and / or officers in the executive, legislative, judicial, and other state administration circles; 3. based on statutory provisions and aupb; 4. final in the broader sense; 5. decisions that have the potential to cause legal consequences; and / or 6. decisions that apply to citizens. " of the several objects of dispute that have expanded, in this thesis the writer limits will discuss the meaning of article 87 letter (a) which in the article reads, "a. written stipulations which also include factual actions " a) state administrative decrees that cover factual actions in the government administration law, the object of the state administration dispute that is experiencing expansion is one of which is a written stipulation that includes factual actions. this becomes something interesting to discuss. the reason is, not a few ordinary people, even legal practitioners, who in this case are ptun judges themselves sometimes have their own interpretations regarding the expansion of the object of this tun dispute. this is triggered because with the government administration act, the state administrative justice law will more or less be replaced. the legal practitioners (judges of the administrative court) who are already familiar with the law on state administrative justice, and now must use the government administration law which is actually a new act and must be applied, of course there will be difficulties in handling cases included in the ptun. the reason is that in the government administration law there is an expansion which includes factual actions of the government to be an element of state administrative decisions. state administrative decisions which includes factual actions is actually not new in state administrative justice. it's just not listed in the act. according to indroharto, before factual action was often preceded by a written decree. when the written stipulation has legal consequences, then it is included in the state administration dispute (in accordance with the state administrative decisions element in the state administrative justice law). for example, such as demolition. when a government agency and / or official orders his subordinates to carry out the demolition and demolition it is likely to harm the community (not in accordance with applicable laws), then the decree issued by the government is a written stipulation and the act of demolition is a factual action by the government. with the government administration act, clarifying the factual actions that are elements of state administrative decisions. however, written stipulations which include factual actions are often interpreted as government actions that have no legal consequences. in fact, factual actions are not without any legal consequences. but it must be distinguished, factual actions here are factual actions that exist in the state administrative decisions. where factual action here becomes one with the state administrative decisions issued by the government. in addition, with the position or position of the government that can enter the realm of public law and private law, which becomes the domain of state administrative law is the government's actions in public law (publiekrechtshandelingen). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 185 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia related to government administrative actions, it has been explained by itself in article 1 number (8) of law number 30 year 2014 concerning government administration that, government administrative actions, hereinafter referred to as actions, are acts of government officials or other state administrators to commit and / or not carrying out concrete actions in the framework of government administration. regarding government action which is now also an extension of state administration dispute objects, these government factual actions are often equated with illegal actions by the authorities (onrechtmatige overheidsdaad). so, when there are cases related to government actions, they are automatically considered as ood and use article 1365 of the civil code as the basis of their demands and become the domain of general justice. meanwhile, since the government administration act, government actions can become the competence of the state administration justice. the same thing was conveyed by imam soebechi in his book, that "all factual actions are tested by courts in the general court environment through acts against the law by officials (p.m.h.p) by using article 1365 of the civil code. after the promulgation of law no. 30 of 2014, testing of decisions and / or actions of government administration becomes jurisdiction of state administrative justice. " b) factual actions after the government administration act state administration dispute which has been the object of state administration dispute so far has been regulated in law number 5 of 1986. the object of state administration dispute so far has been that it does not recognize the object of dispute in the form of factual actions, so it needs to be accommodated and formulated as state administration dispute objects. after the government administrative law was passed, factual action became one of the elements of the object of the state administration dispute. seen from article 1 number 8 of law number 30 of 2014 concerning government administration, "government administration acts, hereinafter referred to as acts, shall be the actions of government officials or other state administrators to carry out and / or not carry out concrete actions in the context of administering government." from that article, government actions are associated with factual acts. however, there is no further explanation and this has sparked a lot of debate about the meaning of factual actions referred to in article 87 letter (a) of law number 30 of 2014. thus, even in practice the practitioners (ptun judges) found it difficult to interpret the intentions of factual action itself that makes every judge has his own meaning and will certainly have an impact on the decisions that will be given. government actions are grouped into government actions in the field of public law and civil law. during this time, what is generally known is the government's actions in public law, namely issuing decisions (beschikking), issuing regulations (regulation), and carrying out material actions (materiele daad). (zhou, peng, & bao, 2017)actually, in addition to legal action, the government also takes concrete or factual actions (feitelijke handelingen). but not much is discussed about factual actions of the government. whereas factual action is also as important as government legal action to be discussed more deeply. especially when factual action is included in the http://creativecommons.org/licenses/by-nc-sa/4.0/ 186 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia expansion of state administration dispute objects in law number 30 of 2014 concerning government administration. factual action is often interpreted as a government action against people who have no legal consequences. the simple actions of the authorities must be in line with the act so that the real actions become legal. the consequences of an illegal real action are not so important because the real action has no legal effect, but it often buries the real consequences. first, the authorized administrative officer must override or move the facts produced by an illegal act and restore it to its previous status as long as it is possible and reasonable (cook, 1981). affected citizens can file claims before entering administrative justice. in addition, the public can submit claims for compensation or damage for any losses suffered as a result of illegal actions before entering civil justice. according to lutfi effendi in his book, does it need an authority for the authorities (government) to perform actions that are not considered legal actions? because the act is not in carrying out a main task and no legal sanctions are required (effendi: 2003). the factual action of the government is indeed not in a state of carrying out its main tasks. however, when the act ultimately causes harm to a person or private legal entity, then it can be subject to legal sanctions. as long as the actions result in losses, both the main task and not, there will be legal sanctions that must be given. then, when the government's actions have resulted in losses on the civil subject, then the action can be sued in court. then, is every action carried out by the government always a competence of ptun? the factual action of the government has indeed become one of the elements of the object of the state administration dispute since the enactment of law number 30 of 2014 concerning government administration. however, it should be noted, factual actions in this law are factual actions that have been preceded by the issuance of state administrative decisions (written stipulation). when factual actions are not preceded by state administrative decisions, then government factual actions will remain the competence of the general court and be sued for acts against the law by the authorities (onrechtmatige overheidsdaad). factual government action has actually been around for a long time, but it is not ptun's competence to decide and resolve disputes. for example, the jurisprudence of the republic of indonesia's supreme court's decision no. 144 k / tun / 1999 dated september 29, 1999 which stated that the demolition was carried out without a warrant, but the demolition had been carried out, then the case became the competence of the state district court with claims of acts against the law by the authorities (onrechtmatige overheidsdaad). it is true, factual action is included in the expansion of state administration dispute objects. however, according to tri cahya indra permana in his book, ptun is only authorized to examine decisions that include factual actions. but not to decide and resolve disputes. factual actions are still the authority of the general court (permana, 2016) however, not merely factual actions are equated with acts against the law by the authorities. philipus m. hadjon and tatiek sri djatmiati in the book teguh satya bhakti, et al, including the jurists who disagree with growing the term onrechtmatige overheidsdaad with state administrative disputes in the form of factual actions, because there are http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 187 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia striking differences between onrechtmatige overheidsdaad and administrative disputes overheidsdaad with state administrative disputes in the form of factual actions, because there are striking differences between onrechtmatige overheidsdaad and administrative disputes overheidsdaad a state in the form of a factual act, and a contradiction will occur because the dispute is a state administrative dispute but the material law is article 1365 burgelijk wetboek (bw). according to philipus m. hadjon the differences between onrechtmatige overheidsdaad and state administrative disputes in the form of factual actions are as follows: (susilo, 2013: 300). tabel 1 the difference between onrechtmatige overheidsdaad and state administrative disputes in the form of factual actions this opinion of philipus m. hadjon certainly raises a lot of pros and cons because it is felt that there are still two jurisdictions that adjudicate, the state administration snegketa factual action becomes the realm of administrative justice and ood becomes the general court house. one of them is enrico simanjuntak in his writings, he considers that it is fitting for all government public legal actions to be tried in administrative justice. reinforced with the existence of article 85 of the government administration act. article 85 of the government administration act states that: 1) "submitting a lawsuit on government administration disputes that have been registered at a general court but have not yet been examined, with the coming into effect of this law the case is transferred and resolved by the court. 2) filing a lawsuit on government administration disputes that have been registered at a general court and have been examined, with the enactment of this law, it will still be settled and decided by a court in the general court environment. 3) the court's decision as referred to in paragraph (2) shall be carried out by the general court which decides. ” no issue distinction and factual actions onrechtmatige overheidsdaad 1 basic court competence act (now still a bill) jurisprudence: analogy article 1365 bw 2 legal issues violate the law • legality (legality) of the rule of law • losses incurred principle: neminem laedere 3 benchmarks legality: regulatory regulations and aupb formal regulations and compliance in force in society 4 legal framework of dispute public law dispute civil law dispute 5 the competent court ptun general courts http://creativecommons.org/licenses/by-nc-sa/4.0/ 188 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in addition, the existence of sema number 4 of 2016 concerning the enforcement of the results of the plenary meeting of the 2016 supreme court as a guideline for the implementation of tasks for the court also clarifies the competence of the administrative court that the administrative court has the authority to prosecute unlawful acts by the government (onrechmatige overheidsdaad). so that the authority of ptun has expanded as well. however, the authors themselves agree with the opinion of philipus m. hadjon. where should be distinguished between tun dispute factual action with acts against the law by the authorities. because supposed to be the realm of administrative justice is the action of the government in the realm of public law. when the government commits violations in the civil sphere, of course it becomes the authority of the general court to prosecute. as said by sudikno mertokusumo (2014: 6-7), which in essence he classifies acts against the law by the authorities (onrechmatige overheidsdaad) as teachings on civil law rather than state administrative law. even though the government is one of the parties, it cannot be focused on the "government". but from the point of view of individuals who sued because they felt their rights and interests were violated; or feel his wealth has diminished or disappeared by the actions of the authorities. so seen from the point of view of individuals and as a violation of the rights or interests of individuals (ierro, 2015). according to the author, the factual action of the government compared to being equated with unlawful acts by the government, the author is more likely to interpret factual actions here as government coercion (berstuurdwang). based on the dutch law in ridwan hr's book, "onder bestuurdwang wordt verstaan, het feitelijk handelen door of vanwege een bestuurorgaan wegnemen, ontruimen, beletten, in de vorige toestand herstellen of verrichten van hetgeen metri ether wichnen wegnemen wegnemen, ontruimen, beletten, in de vorige toestand herstellen of verrichten van hetgeen metri de chichen wegnen. is of wordt gangguan, gehouden of nagelaten ”(government coercion is a real action taken by a government organ or on behalf of the government to move, empty, obstruct, improve in its original state what has been done or is being done that is contrary to the obligations specified in the legislation) (ridwan hr, 2013). government coercion is included in various types of sanctions in state administrative law. the government has the right to use its authority in applying government sanctions when there are violations, both substantial and nonsubstantial(amir, 2009). because, when it violates the existing legal provisions, by using its authority, the government applies the principles of good governance (aldemeen beginselen van behoorlijk bestuur) (cook, 1981). with article 85, ptun competencies have indeed become widespread, they should. however, paragraphs (2) and (3) show that it does not transfer full competence to ptun to examine, hear and decide disputes conducted by the government. so there will still be two jurisdictions that will adjudicate. in other words, when a dispute involving the government as one of its parties, can still be resolved in the general court, is not absolutely a competence of ptun. for example, in the case of the demolition of bukit duri in jakarta, the object of the state administration dispute was indeed state administrative decisions in the form http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 189 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of a satpol pp (civil service police unit) warning letter. but there are factual government actions in it, where the government continues to demolish while the warning letter is being sued by representatives of the citizens of bukit duri. it can be said that the demolition case is one example of the object of the state administration dispute which includes factual actions. then the plaintiff also filed a lawsuit in civil law to the district court in order to obtain compensation due to material and immaterial losses they received. of the cases included in this district court, one of the parties involved was the government, which in this case was also a defendant, as in the ptun. if it is related to the previous discussion, here proves that although the defendant is in the government, it can still be brought before a civil court in a civil manner against the law by the authorities. because in this case, the government has carried out demolition while some residents still live there and cause residents to suffer both material and immaterial losses. so, in asking for accountability by getting compensation, residents submit to the district court. because the government does not always carry out public law, the government can also take private legal action. thus, in his duty when the violated is included in public law, it should be submitted to an administrative court and when it is entered into private law, it will still be processed in a civil court in civil. conclusion based on the results of research and discussion raised by the author on "comparative study of the extension of state administration dispute objects under law number 5 of 1986 concerning state administrative court and law number 30 of 2014 concerning government administration", it can be concluded that, a government decree or decree the state administration (state administrative decisions) is indeed the object of ptun and is regulated in law number 5 of 1986 concerning state administrative justice and its amendments. in 2014, law no. 30 of 2014 concerning government administration was issued. with the issuance of this government administration act, ptun's authority expanded, including the object of the state administration dispute which also expanded. in the transitional provisions in article 87 of law number 30 year 2014 it is stated that the disputed objects are expanded and in terms of different elements from those contained in the state administrative justice law and its amendments. expansion of the object of the dispute, among others, a written determination which also includes factual action; decisions of state administration agencies and / or officers in the executive, legislative, judicial, and other state administration circles; based on the provisions of the invitation and aupb; is final in a broader sense; decisions that have the potential to cause legal consequences; and / or decisions that apply to the community. in the government administration law which is quite interesting is article 87 letter (a) which is a written stipulation which also includes factual actions. in this government administration act, it is not explained in detail the meaning of factual actions. while this can lead to multiple interpretations among the judges in giving decisions. in http://creativecommons.org/licenses/by-nc-sa/4.0/ 190 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia addition, this also relates to the delegation of ptun competencies in handling cases where one of the parties is the government. often with the existence of factual actions which have now become the expansion of tun dispute objects, it is equated with onrechmatige overheidsdaad, so that the case against the law must also be decided in the ptun where in this thesis, the writer is of the view that the factual action of the government is not the same as onrechmatige overheidsdaad, as a government coercion (bestuurdwang). because the government has the authority to force people when deemed not in accordance with existing legal provisions and also constitutes the application of the principles of good governance. the author also provides suggestions for state administration officers to be more careful in making and issuing decisions and adjusting them to applicable laws. so that later it will not cause harm to the community and also no lawsuit for decisions issued so that the result is canceled simply because it does not comply with existing regulations. for the government, so that in making the next act there is a clear explanation so as not to cause multiple 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(1986). undang-undang nomor 5 tahun 1986 tentang peradilan tata usaha negara. republic of indonesia (2009). undang-undang nomor 51 tahun 2009 tentang perubahan kedua atas undang-undang nomor 5 tahun 1986 tentang peradilan tata usaha negara. republic of indonesia (2014). undang-undang nomor 30 tahun 2014 tentang administrasi pemerintah http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.1016/j.actatropica.2009.07.035 https://doi.org/10.1016/j.postcomstud.2018.07.002 https://doi.org/10.1016/s1870-0578(16)30001-4 192 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote there is no crueler tyranny than that which is perpetuated under the shield of law and in the name of justice montesquieu http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 135 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article juridical analysis of employment relationship (employees-employers) in the aquaculture sector gagas bagaskara1 1 legal aid center of justisia, kebumen, central java, indonesia cv benur anugerah abadi, barru, south sulawesi, indonesia  ggagasbagaskara55@gmail.com cited as bagaskara, g. (2021). juridical analysis of employment relationship (employeesemployers) in the aquaculture sector. journal of law and legal reform, 2(2), 135156. https://doi.org/10.15294/jllr.v2i2.46622 abstract the employment relationship (employee-employer) is often one of the relationships that often creates legal problems, be it in the aspects of payroll, employment status, or termination of employment relations. this study is to describe and analyze the work relationship and obligations of the parties at pt. esa putlii prakarsa utama, as well as to find out the factors inhibiting the implementation of work relations at pt. esa putlii prakarsa utama. the method used in this research is sociological juridical by analyzing various legal regulations as well as examining behaviors and direct relationships based on understanding the law in terms of social symptoms. this study shows that the working relationship at pt. esa putlii prakarsa utama occurs because of an indefinite work agreement (pwkt). however, the entrepreneur's actions take action against the law because he has violated article 60 paragraph (2) of law number 13 of 2003 concerning manpower where employers pay wages below the minimum wage during the probationary period of work, this is null and void by law. then regarding the rights and obligations of the parties, in principle, the obligations of workers are rights that must be accepted by employers, and vice versa, the obligations of employers are rights that must be accepted by workers. the rights and obligations of the parties can be found in labor laws, company regulations, and collective labor agreements. keywords: work relations, journal of law and legal reform (2021), 2(2), pp. 135-156. doi: https://doi.org/10.15294/jllr.v2i2.46622 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 14 december 2020, revised: 15 february 2021, accepted: 30 april 2021 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46622 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 136 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction indonesia is a country that is located between two continents and two oceans, namely the asian continent and the australian continent, as well as the atlantic ocean and the indian ocean. thus, because indonesia is located between the two oceans, indonesia automatically also has a deep sea and a sea between islands which is commonly called the strait. indonesia, which is in a position that is flanked by two oceans, also causes the oceans or waters in indonesia to have various abundant natural resources, one of which is very abundant fish and various types (supriyadi & alimudin, 2011). in addition, fish farming is also related to production, where one of the work units is processing. this is regulated in article 3 of the regulation of the minister of marine affairs and fisheries number per. 12 / men / 2007 which states that the business in the field of fish cultivation is carried out in the fisheries business which includes preproduction, production, processing, and marketing (supriyadi & alimudin, 2011: 138). for employers, losing a worker or laborer is not a problem because there are still thousands of workers looking for work. based on article 1 number 15 of law number 13 of 2003 concerning manpower, the working relationship between employers and workers and is made based on a work agreement which has elements of work, wages and orders that are different from the meaning of a work agreement (pratomo & saputra, 2012; panjawa & soebagyo, 2014; chalid & yusuf, 2014; wihastuti & rahmatullah, 2018). in article 1601 (a) of the civil code, it is stated that an agreement with one party, the worker, binds himself to be under the orders of the other party, the employer, for a certain period of time does work for a fee (asyhadie, 2015). some previous research emphasized and highlighted that the freedom to contract, which is the 'spirit' and 'breath' of a contract or agreement, implicitly provides guidance that the parties are assumed to have an equal position in the contract. thus, it is hoped that a fair and balanced contract will emerge for the parties. however, in practice there are still many found standard contract models (standard contracts) which tend to be considered one-sided, unbalanced, and unfair (utami, 2015; shalihah, 2017; suyanto, 2015; purnomo, 2014; asuan 2019; mahila, 2017). pt. esa putlii prakarsa utama is a company that produces fishery products located in the mallawa village, mallusetasi district, barru regency, south sulawesi. pt. esa putlii prakarsa utama is an aquaculture company which until now has made a very significant contribution and provides tremendous opportunities and benefits from the production of fry and nener. pt. esa putlii prakarsa utama is one of the largest shrimp production centers in indonesia. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 137 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia indonesia's ability to face global shrimp trade competition is an opportunity as well as a challenge that cultivation companies need to pay close attention to. the vision of the company is a leading modern and integrated aquaculture industry company in indonesia. modern companies are: 1. companies that are supported by professional employees, 2. producing quality products, 3. implementing the good corporate governance system (transparency, accountability, responsibility, independency, and togetherness), 4. upholding accuracy of delivery, 5. oriented optimal profit, and 6. technological innovation and environmental harmony. the company has a mission as follows; 1. running an integrated aquaculture industry based on modern company management. 2. prioritizing strong commercial principles with employee professionalism and continuing to innovate for profit optimization, 3. building mutually beneficial partnerships and close coordination with plasma as a leading company in aquaculture development, and 4. developing all employees to achieve optimal performance and to be one of the competitive advantages and the main pride of a company with high ethical standards with honesty and integrity as well as a proud character. the author sees some interesting things to study about how the work relationship that occurs at pt. esa putlii prakarsa utama whether it is in accordance with the labor law, in this case the workers of pt. esa putlii prakarsa utama as a permanent worker, but regarding the provision of wages lower than the applicable minimum wage. therefore, this paper is intended to analyze how the rights and obligations of the parties at pt. esa putlii prakarsa utama. what are the rights received by workers as well as rights received by employers and what are the factors inhibiting work relations at pt. esa putlii prakarsa utama? in this case, the problem is the factors experienced by workers and employers both internally and externally. method the type of research used by researchers is qualitative legal research using the sociological juridical approach (djunaidi & fauzan, 2012). sociological juridical approach is a research conducted on the real situation of society or the community environment with the aim of finding facts (fact finding), which then leads to identification (problem identification) and ultimately leads to problem solving. using descriptive qualitative research methods. qualitative research is research that will produce descriptive data regarding spoken and written words and observed behavior of the people studied. research focus, the basis of a focus is a problem that comes from the experience of the researcher or through knowledge that comes from the experience of the researcher. through http://creativecommons.org/licenses/by-nc-sa/4.0/ 138 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia experiences obtained through scientific literature or other literature. the research location was conducted at pt. esa putlii prakarsa utama, having its address at jl. poros makassar-parepare km. 138, jalang village, mallawa village, mallusetasi district, barru regency, mallawa, mallusetasi, jalang barru, south sulawesi. sources of data include primary and secondary data taken by interviewing techniques and literature study. the data analysis technique used is sociological legal research. this research was conducted by examining legal materials as well as identifying various regulations related to employment relationships. the analysis regarding the problems raised in this research is carried out by analyzing the problems that exist in the field, namely the work relationship between workers and employers in the fisheries sector (a study at pt. esa putlii prakarsa utama, south sulawesi) and will then be reviewed in relation to the prevailing laws and regulations. after the data analysis is complete, the results will be presented descriptively, namely by telling and describing what it is in accordance with the problem under study. from these results, it is then drawn as a conclusion which is the answer to the problems raised in this study. general description of pt. esa putlii prakarsa utama pt. esapratama (pt. esa putlii prakarsa utama) is a company that produces fishery products located in the jalang area, mallawa village, mallusetasi district, barru regency, south sulawesi. this company was founded by mr drs. h. eddy baramuli and his family where at that time he as a politician was very optimistic in observing the potential of the aquaculture sector which was quite prospective and became the prima donna, especially shrimp and milkfish as superior products of south sulawesi. during its development, this company continues to experience significant progress and increase in production, especially in increasing its capacity (capacity building). pt. esapratama is a company that was the forerunner of the following companies: 1) in 1984 it was named pt. ebar jaya; 2) in 1986 it was named pt. sea angel; 3) in 1988 it was named pt. ocean pearl; 4) in 1998 until now it was named pt. esapratama (pt. esaputlii prakarsa utama). pt. esapratama (pt. esaputlii prakarsa utama), is a aquaculture company which until now has provided a very significant contribution as well as providing tremendous opportunities and benefits from the quality of quality fry http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 139 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and milkfish (nener) production in indonesia. pt. esapratama is one of the largest shrimps and nener production centers in indonesia. indonesia's ability to face global shrimp trade competition is an opportunity as well as a challenge that cultivation companies need to pay close attention to. with the increasing achievement of shrimp production, it is hoped that in the future indonesia will become the largest shrimp producing country in asia. of course, this can be achieved through optimization and utilization of natural resources wisely and sustainably. in the development and corporate strategy of pt. esapratama continuously strives to increase strength in the aquaculture sector and prioritizes efficiency through innovative management systems and the use of modern technology in order to ensure the success of cultivators and provide a range of quality products. even consistently implementing environmentally friendly farming practices throughout the operational process. shrimp as one of the aquaculture commodities is indonesia's leading export. thus, shrimp has a strategic position in supporting the national economy through foreign exchange earnings and at the same time improving welfare, cultivation companies and the community. as a company that advances aquaculture industry companies, of course, it continues to foster cooperation with cultivators and produce superior quality products to make the company a leading marine product producer in indonesia. the company is also has spirit to realize as a leading integrated and modern aquaculture industry company in indonesia. modern companies that applied by the company as: 1. companies supported by professional employees; 2. producing quality products; 3. implementing the good corporate governance system (transparency, accountability, responsibility, independency and togetherness); 4. upholding accuracy of delivery; 5. optimal profit oriented; 6. technology innovation and environmental harmony. the mission of the company, are: 1. running an integrated aquaculture industry based on modern company management; 2. prioritizing strong commercial principles with employee professionalism and continuing to innovate for profit optimization; 3. building mutually beneficial partnerships and close coordination with plasma as a leading company in aquaculture development; 4. developing all employees to achieve optimal performance and become one of the competitive advantages and the main pride of the company with high ethical standards with honesty and integrity as well as a proud character. http://creativecommons.org/licenses/by-nc-sa/4.0/ 140 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia employment relationship between employees and employers at pt. esa putlii prakarsa utama lalu husni in his book entitled "indonesian employment law (hukum ketenagakerjaan indonesia)" which is called "employment relationship is the relationship between workers and employers that occurs after the existence of a work agreement" (husni, 2003: 39). a work agreement according to article 1 point (14) of the manpower act is an agreement between a worker and an entrepreneur which contains the working conditions, rights, and obligations of the parties. the terms or conditions of a work agreement are also contained in article 52 paragraph (1) of law number 13 of 2003 concerning manpower which states that a work agreement is made on the following basis: a) both side agreement; b) ability or ability to take legal actions; c) the agreed work does not conflict with public order, morality, and the prevailing laws and regulations there are 2 (two) types of work agreements, namely, the type of work agreement for a certain period of time and the type of work agreement for an unspecified time. fixed term work agreement is a work agreement between a worker and an entrepreneur to establish a working relationship based on a certain time or based on a certain type of work. the definition of an unspecified time work agreement (pkwtt) is a work agreement between a worker and an entrepreneur to establish a permanent working relationship. pkwtt can be made in writing or orally and is not required to be approved by the relevant manpower agency. in the event that pkwtt can be carried out a probation period of 3 (three) months as stipulated in article 60 of the manpower law. at the time of doing research saw pt. esa putlii prakarsa utama is a company running in the aquaculture sector, where all workers are permanent workers or workers whose work agreement is an indefinite work agreement. according to mr. mustakim sila as general affair, pt. esa putlii prakarsa utama, “to become a permanent worker at pt. esaputlii prakarsa utama must go through 3 (three) stages, namely submitting a curriculum vitae (cv) or personal data and job application, interview test, and work trial for 3 (three) months, after all these stages pass the company issues a signed permanent employee appointment decree by workers" (personal interview, november 2020). the provisional conclusion from the results of the interview with mr. mustakim on probation for work in accordance with article 60 paragraph (1) of law no. 13 of 2003 concerning manpower and work relations were born out of an indefinite work agreement (pkwtt). furthermore, according to jamaludin, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 141 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia "there are 2 (two) types of work agreements, namely pkwtt and pkwt. for pkwt, it must be made in writing, if it is made orally, the work agreement is changed to pkwtt. pkwtt has a probationary period of work for a maximum of 3 months and wages cannot be lower than at the minimum wage. for the 2016 minimum wage, namely rp. 2,250,000" (personal interview, november 2020). in conclusion, there are 2 (two) types of work agreements, namely pkwtt and pkwt, then regarding during the probation period workers are not allowed to receive wages lower than the minimum wage, and the minimum wage of barru regency in 2016 according to mr. jamaludin is rp. 2,250,000. regarding what work agreement some workers use during job training, the wages received during job training are below the minimum wage, among others. in the same context, based on interview from titi lestari, she said, "i just made a job application and continued to participate in the trial work, then i signed a statement letter submitted by the company, and i also did not get a copy of the work agreement. during the probation period i also received rp. 1,000,000” (personal interview, november 2020). moreover, according to muh. darwis “… i also signed the statement letter just like titi and i also didn't get a copy of the work agreement. only i get a work determination letter that says my wage for the trial work is rp. 1,000,000" (personal interview, november 2020). another informant, ardi said, "i submitted a job application then interviewed, after that the probation period was asked to sign the submitted statement, but i also couldn't get a copy of the work agreement, only i got a sk but mine was lost. my wages during the probationary period until now are only rp. 1,000. 000" (personal interview, november 2020). analysis, article 60 paragraph (2) of law number 13 of 2003 concerning manpower, “during the probation period as referred to in paragraph (1). employers are prohibited from paying wages, below the applicable minimum wage. then see the work agreement made is a written agreement, this is due to the signing by the worker to agree on what was ordered by the company, then the type of work agreement that occurs at pt. esa putlii prakarsa utama. the agreement used is the indefinite time work agreement because of a probationary period. however, it is very clear that the company violates article 60 paragraph (2): “during the probation period as referred to in paragraph (1), the entrepreneur is prohibited from paying wages below the applicable minimum wage.” the behavior of the entrepreneur/company is contrary to statutory provisions because he has paid a wage below the minimum wage during the probationary period of less than rp. 2,250,000. so that the work agreement that is done should be null and void. however, in the criminal provisions and administrative sanctions in the manpower law, there is no mention of sanctions for those who violate article 60 of the manpower law. this is beneficial for http://creativecommons.org/licenses/by-nc-sa/4.0/ 142 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia employers in carrying out work agreements (pratomo & saputra, 2012; panjawa & soebagyo, 2014; chalid & yusuf, 2014; wihastuti & rahmatullah, 2018) the conclusion regarding the work relationship that occurs above is that pt. esa putlii implements an indefinite time work agreement, this is due to the existence of a probationary period for the company, but still has not implemented what is ordered by article 60 of the manpower law, and the weakness of article 60 of the manpower act itself is the absence of application of sanctions for those who violate them. rights and obligations of employees and employers at pt. esa putlii prakarsa utama the obligations of the parties to an agreement are generally called performance. in terms of this achievement, soebekti emphasized that a party who gets the rights from the agreement also receives obligations which are the goodness of the rights that are obtained, and vice versa, a party who assumes the obligations also receives rights which are considered as obligations imposed on him (subekti, 1984). according to soepomo's faith, the main obligation of a worker is to do work according to the entrepreneur's instructions, and to pay compensation. apart from workers 'obligations, there are workers' rights that must be obtained in the manpower law. manpower law which has the role of regulating employment relationship policies, in addition to its regulation through statutory regulations, it is also issued through the form of company regulations or collective working agreements, and work agreements. basically, this legal provision is based on the principles of certainty, justice, benefits, balance of interests, deliberation, and equality in legal standing. these principles have values as the ideals of labor law in providing a foundation for protection and law enforcement in the field of manpower. rights and legal protection for workers derived from law no.13 of 2003 concerning manpower, including: a. rights and protection of occupational safety and health; b. rights and welfare protection (jamsostek); c. rights and protection of freedom of association; d. covert or unilateral termination rights and protection; e. wage rights and protection; f. rights and protection of working time (including: overtime work); http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 143 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia g. the rights and protection of the interests of worship, childbirth, menstruation, annual leave, rest between working hours, weekly rest, and other protections that are normative in nature. legal protection originating from company regulations / work agreements and collective working agreements (working conditions that have not been regulated or quality improvement over minimum standards of legislation), include: a. welfare facilities (cooperatives, clinics, housing, and family planning), canteens, recreation, sports, places of worship and child care); b. periodic salaries and fixed allowances, year-end bonuses and bonuses based on merit, protection determined based on collective labor agreements or company regulations, work agreements. in the work agreement, because it is one of the specific forms of the agreement, what soebekti stated above also applies. this means that what is the right of the worker will become the obligation of the entrepreneur, and conversely what is the right of the entrepreneur will become the obligation of the worker. obligations of workers at pt. esa putlii prakarsa utama is stated in the statement letter submitted by the company during the interview test. the contents of the statement letter stated in the statement letter are; a. we are able to work according to the working hours set by the company b. we will comply with the leadership of the company and all company rules and regulations; c. we will protect all company assets and assets; d. we will work efficiently and effectively according to the work plan and cost plan of the company so that the company gets maximum results; e. we will be honest, trustworthy and will not leak secrets / data from the company to outside parties or other unauthorized parties; f. if we do not carry out the above and we have been notified in writing 3 (three) times, and we are still committing violations, indiscipline and others that are against the provisions and regulations of the company, we are willing to be terminated from the company and the company is exempt from our obligations. anything to us, except the salary payable (if any) while we are working. it can be concluded from the contents of the statement letter above the obligations of workers at pt. esa putlii prakarsa utama, namely doing work in accordance with the instructions of employers and/or complying with company rules and regulations. http://creativecommons.org/licenses/by-nc-sa/4.0/ 144 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia i. obligation to provide and explain the contents of company regulation draft company regulations according to article 1 point 20 of the manpower act, company regulations are regulations that are made in writing by an entrepreneur which contains working conditions and company rules. then the obligation of employers to make company regulations is stated in article 108 number (1) “entrepreneurs who employ workers of at least 10 (ten people) are obliged to make company regulations that come into effect after being approved by the minister or appointed official. article 109 of the manpower law states "company regulations are drawn up by and become the responsibility of the entrepreneur concerned. regarding the obligation of employers to provide and explain the contents of the company regulation text, it is regulated in article 114 of law number 13 of 2003 concerning manpower. mr. mustakim as general affair explained about the company regulations, he said, "regarding the workers' obligations to the company, it is stated in a statement letter signed by the workers and regarding company regulations a draft has been submitted, but never received a reply from the manpower office, occurred in the month of october 2016 pt. esa putlii prakarsa utama submitted a draft company regulation to the manpower office, barru district, but within 30 (thirty) days there was no reply from the manpower office, and the company regulations had been given to workers through their respective superiors / head of leadership. respective fields of work” (personal interview, november 2020). meanwhile, according to the manpower office, mr. jamaludin, disagreements regarding company regulations at pt. esa putlii prakarsa utama, "pt. esa putlii prakarsa utama has never registered company regulations with us, even though we always admonish us every year to make company regulations immediately, but until now there has never been a company regulation that they have registered, we also every year provide guidance to pt. esa putlii prakarsa utama. "ahmad suhail said" i never got a copy of company regulations or an explanation of company regulations. "as for the results of an interview with ahmad imron, a worker of pt. esa putlii prakarsa utama, larva production section "i never got a copy of the company regulations, it's just that i work according to what is directed by my superiors." analysis, article 108 point (1) of the manpower law states that "entrepreneurs employing at least 10 (ten) workers / laborers are obliged to make company regulations which come into effect after being ratified by the minister or appointed official. ratification of company regulations is contained in article 112 numbers (1), (2), (3) and (4) the manpower act. article 112 number (1) states the ratification of company regulations by the minister or the appointed official as referred to in article 108 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 145 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia paragraph (1) must have been given within 30 (thirty) working days from the receipt of the company regulation manuscript. as for the criminal provisions for entrepreneurs who do not make company regulations and provide and explain the contents of the company regulation text as contained in article 188 of the labor law. there are 2 (two) conclusions in this case, first, in this case pt. esa putlii prakarsa utama, if proven not to register company regulations nor provide and validate the contents of the company regulation text, pt. esa putlii prakarsa utama violated the criminal provisions of article 188 of the labor law. the two manpower offices are not firm in taking a stand and have abused their authority, it is stated in the labor law that the manpower office is an official appointed as labor inspector, in this case the party who is injured is a worker because the application of legislation does not work properly. provisions in company regulations must not conflict with statutory provisions. this means that the provisions in company regulations must not be of low quality or quantity from the prevailing laws and regulations and if they are contradictory, then what applies are the provisions of the laws and regulations. the point is that the provisions in company regulations, compared to the prevailing laws, must not be detrimental to workers (rusli, 2011: 140), ii. obligation to give wages in an employment relationship, the main obligation for entrepreneurs is to pay wages to their workers in a timely manner. (article 88 paragraph (1) of law number 13 year 2003 concerning manpower. minimum wages, the government, in this case the governor, shall take into account the recommendations of the provincial wage council and/or regents/mayors, taking into account productivity and economic growth. proper wage protection, determination of minimum wages and imposition of fines on workers who commit violations due to their deliberate or negligent actions shall be regulated by government regulations (article 97 of the manpower act). indonesia has implemented the minimum wage standard mechanism and formulated it into workforce regulations such as in law number 13 of 2003 about the workforce (article 88-92) and the regulations from ministry of manpower and transmigration number 7 of 2013. the minimum monthly payment which consists of primary wage including the permanent subsidy. as a result, the minimum wage does not include temporary subsidy such as: attendance cost, meal and transport given based on their presence. this mechanism is in effect for the workers with less than one year experience. unfortunately, both provisions http://creativecommons.org/licenses/by-nc-sa/4.0/ 146 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia are not socialized well to workers and employers. consequently, some misunderstandings have occurred including the inequality of workers (sulistiyono, 2014: 73-74). then the application of the minimum wage at pt. esa putlii prakarsa utama, the results of an interview with mr. mustakim sila's general affair regarding his wages said "the average minimum wage here can reach 3 (three) million per month, the wage system in this company is basic salary + fixed allowance / pension which is 50 % of basic salary + non-fixed allowances (food allowance, transportation allowance, etc.) as well as intensive money per semester, intensive money is money given to workers if the worker reaches or exceeds his work target. the results of an interview with mr. jamaludin, the manpower office regarding the minimum wage, he said “the minimum wage in barru regency itself is rp. 2,250,000, the formula for the minimum wage, namely salary (basic wage) plus fixed allowance" (personal interview, november 2020). then interview with workers about wages, joni who works in the fry production division said, "my monthly salary is rp. 1,200,000, i have worked for 2 (two) years” (personal interview, november 2020). harlawati dian who works in the lab qc division said “my monthly salary is rp. 2,250,000, i've worked for 10 months, 3 months of training” (personal interview, november 2020). furthermore, fatimah rahmat who is one division with harlawati dian said, “my salary is 2,250,000, and i've worked for 1 year" (personal interview, november 2020). muh yusuf, a worker in the personnel division, said "my monthly salary is rp. 2,500,000 and i have been working for 4 years”. following are the salaries of pt. esa putlii prakarsa utama unit i larvae production division in october 2016. analysis, 3 months of training. "fatimah rahmat who is in the same division with harlawati dian said" my salary is 2,250,000, and i have worked for 1 year ". muh yusuf, a worker in the personnel division, said “my monthly salary is rp. 2,500,000 and i have worked for 4 years”. following are the salaries of pt. esa putlii prakarsa utama unit i larvae production division in october 2016. analysis, 3 months of training. "fatimah rahmat who is in the same division with harlawati dian said" my salary is 2,250,000, and i have worked for 1 year ". muh yusuf, a worker in the personnel division, said "my monthly salary is rp. 2,500,000 and i have worked for 4 years”. following are the salaries of pt. esa putlii prakarsa utama unit i larvae production division in october 2016. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 147 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table 1. list of production workers' wages (in rupiah) data from table 1 can be analyzed that according to article 1 point (1) regulation of the minister of manpower and transmigration number 7 of 2013 concerning minimum wages, it is stated that the minimum wage is the lowest monthly wage consisting of the basic wage including fixed allowances which are determined by the governor as a safety net. then the government regulation of the republic of indonesia no.78 of 2015 concerning wages article 1 point (1) states, wages are the rights of workers / laborers that are received and expressed in the form of money as compensation from employers or employers to workers and who are determined and paid. according to a work agreement, agreement, or statutory regulation, including allowances for workers and their families for a job and/or service that has been or will be performed. article 5 paragraph (1) pp no. 78/2015 concerning wages, states that the wage as referred to in article 4 paragraph (2) letter a consists of a wage component without allowances; basic wages and fixed allowances; basic wage, fixed allowance, and temporary allowance. article 5 paragraph (3) pp no. 78/2015 states, in terms of the components of the basic wage, fixed allowances, and non-permanent allowances as referred to in paragraph (1) letter c, the amount of the basic wage is at least 75% (seventy five percent) of the amount of basic wage and fixed allowances. in this case the wage component applied by pt. esa putlii prakarsa utama are basic wages, fixed allowances and variable supports. circular of the minister of manpower of the republic of indonesia no. table 1.4 upah pekerja produksi benur bulan oktober 2016 (daftar gaji pekerja pt. esa putlii prakarsa utama) total no nama karyawan gaji tunj . jabatan tunj. prestasi tunj. khusus gaji dana pensiun tunj. makan pph 21 uang makan ( rp ) ( rp ) ( rp ) ( rp ) ( rp ) ( rp ) ( rp ) ( rp ) ( rp ) ( rp ) ( rp ) i produksi larva unit i 1 ir. tuwuh 2,500,000 1,000,000 6,500,000 10,000,000 400,000 10,400,000 10,400,000 2 abd. rahman 2,000,000 500,000 500,000 3,000,000 250,000 400,000 3,650,000 400,000 3,250,000 3 sabaruddin 1,750,000 350,000 2,100,000 250,000 400,000 2,750,000 2,750,000 4 ahmad imron, spi 2,000,000 500,000 2,500,000 250,000 400,000 3,150,000 400,000 2,750,000 5 eko priyo sulistio, s.kel 1,275,000 325,000 1,600,000 250,000 400,000 2,250,000 2,250,000 6 ir. sukiman 2,000,000 500,000 350,000 2,850,000 250,000 400,000 3,500,000 400,000 3,100,000 7 usran, amd. pi 1,250,000 350,000 1,600,000 250,000 400,000 2,250,000 400,000 1,850,000 8 ismail, amd.pi 1,600,000 350,000 1,950,000 250,000 400,000 2,600,000 400,000 2,200,000 9 mulyadi 1,000,000 250,000 1,250,000 250,000 400,000 1,900,000 400,000 1,500,000 10 a. asdar 1,000,000 250,000 1,250,000 250,000 400,000 1,900,000 400,000 1,500,000 11 hendra rante 1,000,000 250,000 1,250,000 250,000 400,000 1,900,000 400,000 1,500,000 12 jumaedi, amd,pi 1,200,000 300,000 1,500,000 250,000 400,000 2,150,000 400,000 1,750,000 13 asriadi, amd,pi 1,200,000 300,000 1,500,000 250,000 400,000 2,150,000 400,000 1,750,000 14 joni, amd,pi 1,200,000 300,000 1,500,000 250,000 400,000 2,150,000 400,000 1,750,000 15 ibrahim , amd,pi 1,200,000 150,000 1,350,000 250,000 400,000 2,000,000 400,000 1,600,000 16 ahmad suhail, amd,pi 1,200,000 300,000 1,500,000 250,000 400,000 2,150,000 400,000 1,750,000 17 jusrandi, a.md.pi 1,200,000 1,200,000 400,000 1,600,000 1,600,000 jumlah i 24,575,000 2,000,000 4,325,000 7,000,000 37,900,000 3,750,000 6,800,000 48,450,000 5,200,000 43,250,000 pendapatan tunj. lain-lain total gaji + tunjangan potongan sisa gaji http://creativecommons.org/licenses/by-nc-sa/4.0/ 148 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia a. basic wage is the basic compensation paid to employees according to the level or type of work, the amount of which is determined based on an agreement. b. fixed allowance is a regular payment related to work that is regularly given to workers and their families and is paid in the same time unit as the payment of the basic wage, such as wife's allowance; child support; housing allowance; death benefit; regional allowances and others. c. non-permanent allowance is a payment that is directly or indirectly related to workers, which is given irregularly to workers and their families and is paid according to a time unit which is not the same as the time of payment of the basic wage. furthermore, from the results of interviews and table 1 the basic wage of pt. esa putlii prakarsa utama consists of salary, job allowance, special allowance, meal allowance pension allowance. meanwhile, the non-permanent allowance consists of achievement allowances. the wages given by the company are set on a monthly basis. there are still many workers who receive a lower base wage than the minimum wage. in this case the entrepreneur has violated the criminal provisions of article 185 of the manpower law by imprisonment for a minimum of 1 (one) year and a maximum of 4 (four) years and/or a fine of at least rp. 100,000,000 (one hundred million rupiah) and at the most. a lot of rp. 400,000,000 (four hundred million rupiah). iii. obligation to determine working time and rest time every employer is obliged to implement the working time provisions stipulated in the manpower act, except for certain business sectors or occupations. regarding the working time of the interviews the author has conducted for pt. esa putlii prakarsa on november 14, 2016 regarding the working time provisions that are applied there are several differences in working hours between one worker and another. john who works in the production division of benur said, "i work 12 (twelve) hours every day". then, harlawati dian who works in the division said qc said "i work 3 (three) hours per day." and fatimah rahmat, skm who works in the qc laboratory division said, "i work 8 (eight) hours a day checking the quality of fry and nener". meanwhile, muh. yusron syaro in the personalia division (office staff) said, "i work 8 (eight) hours of work per day". apart from that muh. dervish in the larvae production division said "i work 12 (twelve) hours of work per day, fully responsible for the production of fry in feeding, checking water, cleaning tubs and carrying out superior orders". regarding working hours at pt. esa putlii prakarsa utama, mr. mustakim as general affair said, "basically the company pt. esa putlii prakarsa utama has its http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 149 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia own set of working hours because each division has different responsibilities. but still adhering to the manpower act, namely 8 hours of work per day and for overtime the company does not stipulate overtime provisions, but the company still appreciates the performance of its employees by providing incentive money per semester. "then the interview about the right to get a day off / leave, the results of an interview with a worker named joni on november 14, 2016, he said. "… we get 12 days annual leave." another worker also said the same thing about leave, harlawati dian said, "workers here each get an annual leave of 12 days." employers are required to provide annual rest to workers on a regular basis. the right to rest is important in order to eliminate worker boredom in doing work. annual leave of 12 working days. in addition, workers are also entitled to long leave for 2 (two) months after working continuously for 6 years at a company (article 79 paragraph (2) of law number 13 of 2003 concerning manpower. the obligation to implement the provisions of working hours. a. 7 (seven) hours in 1 (one) day and 40 (forty) hours in 1 (one) week for 6 (six) working days in 1 (one) week or; b. 8 (eight) hours 1 (one) day and 40 (forty) hours 1 (one) week for 5 (five) working days in 1 (one) week. the author's analysis, according to article 77 paragraph (3) of law number 13 year 2003 concerning manpower, states that “the working time provisions as referred to in paragraph (2) do not apply to certain business sectors or occupations. pt. esa putlii prakarsa utama is a company engaged in the aquaculture business sector, especially fish and nener. then article 77 paragraph (4) provisions regarding working hours in certain business sectors or jobs as referred to in paragraph (3) shall be regulated by a ministerial decree. in this case the working time should be used is article 3 of the regulation of the minister of manpower and transmigration of the republic of indonesia per.11 / mn / vii / 2010 concerning working and resting time in the fishery sector in certain operational areas, namely; a. companies in the fisheries sector, including supporting service companies that carry out activities in certain areas of operation, can select and determine one and / or several working hours according to the company's operational needs as follows: a. work period of 3 (three) consecutive weeks, provided that after the worker has worked for 2 (two) consecutive weeks, 1 (one) day of rest and 4 (four) rest days after the worker has completed the work period; b. work period of 4 (four) consecutive weeks of work, provided that after the worker has worked for 2 (two) consecutive weeks, 1 (one) day of rest and 5 (five) days of rest after the worker has completed the work period. http://creativecommons.org/licenses/by-nc-sa/4.0/ 150 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b. in the event that the company implements the work period as referred to in paragraph (1) letter a and letter b, the working time is no longer than 12 (twelve) hours a day excluding rest time for 1 (one) hour. c. (2) companies that use the working hours as referred to in paragraph (2) are obliged to pay overtime wages after 7 (seven) working hours with the following calculations: a. normal working days: 1) for the first hour of overtime, the wages must be paid 11/2 (one and a half) times the hour's wages; 2) for each subsequent hour of overtime, 2 (two) times the hour's wages must be paid. b. legal holidays: 1) for every hour within the limit of 7 (seven) hours, at least 2 (two) times the wages of an hour; 2) for the first working hour, the remaining 7 (seven) hours must be paid 3 (three) times the wages per hour; 3) for the second working hour after 7 (seven) hours and so on, the pay is 4 (four) times the wages per hour. this is because fish farming is also related to production, where one of the work units is processing. this is regulated in article 3 of the regulation of the minister of marine affairs and fisheries number per. 12 / men / 2007 which states that the business in the field of fish cultivation is carried out in the fisheries business which includes preproduction, production, processing and marketing. the conclusion regarding working time and rest time is pt. esa putlii prakarsa utama has not implemented working hours in accordance with the ministerial regulation of the minister of manpower and transmigration of the republic of indonesia per.11/mn/vii/2010 concerning working and resting hours in the fishery sector in certain operational areas. iv. obligation to provide welfare facilities according to malayu sp hasibuan welfare is a complete remuneration (material and non-material provided by the company based on policy). the goal is to maintain and improve the physical and mental condition of employees so that productivity increases (hasibuan, 2003: 183). an interview with ahmad imron regarding welfare facilities revealed that "we are here to get mess facilities, food allowances, transport fees, table tennis and a swimming pool for sports facilities, bpjs employment, bpjs health and many others." then ir. tuwuh, as the representative for the general manager regarding welfare facilities, said that "workers get welfare facilities in the form of economics in the form of pension money, food allowances, transport fees, bpjs ketenagakerjaan and bpjs kesehatan for workers' families, holiday allowances, bonuses and so on. for facilities in the form of places of worship, canteen, swimming pool, tennis table and others.” http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 151 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia article 99-101 of law no.13 of 2003 concerning manpower regulates welfare article 99 paragraphs (1) and (2): 1) every worker and / or laborer and his family have the right to obtain workforce social security; 2) manpower social security as referred to in paragraph (1) shall be implemented in accordance with the prevailing laws and regulations. regarding workforce social security, every worker and worker's family obtains a bpjs ketenagakerjaan card for workers and bpjs health for workers who already have a family. the principles contained in the bpjs are contained in article 2 of law of the republic of indonesia number 24 of 2011 concerning social security administering bodies, namely humanity, benefits, and justice for all indonesian people. regarding the scope of the bpjs, there are bpjs kesehatan and bpjs ketenagakerjaan. the insurance program provided by the bpjs is listed in article 6 paragraphs (1) and (2), bpjs kesehatan organizes a health insurance program and bpjs ketenagakerjaan organizes work accident security, old age security, pension security and death security programs. it is highlighted that the work welfare facilities in pt. esaputlii prakarsa utama has paid attention to the needs of workers in accordance with article 100 paragraph 2 of law number 13 year 2003 concerning manpower. pt. esa putlii prakarsa utama has provided facilities in the form of a sports venue, bpjs, residence (mess), transport and food allowance, canteen and so on. v. obligation to create a bipartite institution industrial relations disputes are differences of opinion that result in conflicts between employers or a combination of employers and workers or labor unions, due to disputes over rights, interests, termination of employment, and disputes between trade unions in only one company. in this case, companies employing 50 (fifty) workers or more are required to establish a bipartite cooperation institution (article 106 of the manpower act). the existence of bipartite institution is regulated in law number 13 of 2003 regarding the workforce and decision from the ministry of manpower and transmigration number kep.255 / men / 2003 about the mechanism to form and structure of membership of bipartite cooperation institution. in article 1 point 18, law number 13 of 2003 is explained the definition of bipartite cooperation institution as the communication and consultation forum regarding industrial relationship in a particular company whose membership consists of the employer and registered workers / labors under the responsible institution. furthered in article 106 clause (1) of law number 13 of 2003, every company http://creativecommons.org/licenses/by-nc-sa/4.0/ 152 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia employing more than fifty workers / labors is required to establish a bipartite cooperation institution (sulistiyono, 2014: 75). at the time the author was doing the research, pt. esa putlii prakarsa utama employs more than 50 (fifty) workers / or laborers based on the data on the number of workers previously obtained. pt. esa putlii prakarsa utama, in this case, does not yet have a bipartite cooperation institution and there is no labor union in the company. tuwuh said: "this company does not have a bipartite institution, and its workers do not even join a trade union, because there are rare unions from aquaculture. " conclusion by interviewing mr. ir. tuwuh, the company does not have a labor union and a bipartite cooperation institution. jamaludin se, the manpower office, said "pt. esa putlii prakarsa utama does not have a bipartite cooperation institution, regarding the provision of sanctions for you as a law student, you will definitely know what you should be. every company that employs 50 (fifty) workers and / or laborers or more is obliged to form a bipartite cooperation institution. when interviewing the workers that the author mentioned earlier, they cannot convey what makes them uncomfortable working. and article 160 paragraph (1) and paragraph (2) of this law and its implementing regulations. " the manpower office should have given administrative sanctions to pt. esa putlii prakarsa utama but the manpower office here is only silent. the administrative sanctions mentioned in article 190 paragraph (2) are in the form of; a. warning; b. written warning; c. business restrictions; d. freezing of business activities; e. cancellation of approval; f. cancellation of registration; g. temporary cessation of part or all of the means of production; h. revocation of license. inhibiting factors for employment relations at pt. esa putlii prakarsa utama from the description of the work relationship and the rights and obligations of the parties above, as for the obstacles that impose work relations at pt. esa putlii prakarsa utama. results of interviews with workers and deputy general manager of pt. esa putlii prakarsa utama; ahmad imron said, "the obstacle of the work relationship between workers and employers, the unavailability of facilities to discuss existing problems regarding employment." harlawati dian said a different opinion "until now there have been no obstacles regarding the work http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 153 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia relationship." interviews with the workers above there are no facilities to express opinions, so the problems that occur depend on each individual worker. tuwuh said the inhibiting factor of work relations "the inhibiting factor of work relations is because the working hours in this company, in the aquaculture sector, especially fry and nener, cannot be equated with the working hours of workers in textile factories or with others. because we need to pay attention to the quality of fry and nener on a regular basis, and we must take full responsibility for the job description of each employee.” from the interview with ir. tuwuh, the deputy general manager, it can be concluded that the working hours of aquaculture cannot be equated with work in general, a large burden of responsibility in pre-production, production, enlargement and marketing of fry and nener is in the hands of the workers. interview with jamaludin, the manpower office said the solution to barriers to working relations between workers and employers. "there are 2 (two) solutions regarding the inhibiting factors of working relations between workers and employers, first the application of the manpower law comprehensively, namely implementing what is stated in law number 13 of 2003 concerning manpower. and the availability of facilities and infrastructure, namely the company performs its obligations to workers in accordance with the company's capabilities pt. esa putlii prakarsa utama, namely regarding facilities for expressing workers' opinions. according to jamaludin, the manpower office of the new district, the factors inhibiting work relations are caused by 2 (two) factors, namely: 1. internal factors: a. the relationship between workers and workers b. relationships between workers and entrepreneurs c. minimum wages d. facilities and infrastructure e. medical facility 2. external factors: weather, natural disasters, and company location a. the inhibiting factor of work relations among workers, in this case workers are influenced by their social environment, where the nature of the workers cannot work professionally, meaning that workers cannot carry out what is ordered by; b. companies or entrepreneurs. the inhibiting factor of the work relationship between workers and employers, in this case sometimes workers and employers are not able to understand each other; c. minimal wages, in this case workers who have heavier job descriptions get lower wages than others, sometimes even workers complain that the wages earned are lower than the applicable minimum wage; http://creativecommons.org/licenses/by-nc-sa/4.0/ 154 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia d. facilities and infrastructure, means of expressing opinions are not available, in this case a discussion forum regarding disputes over rights and interests; e. health facilities, the company does not provide health facilities within the company. the solutions provided by mr. jamaludin, the manpower office of the new district, were; 1. comprehensive application of manpower law, namely workers and employers exercising their rights and obligations in accordance with the prevailing laws and regulations; 2. the availability of facilities and infrastructure, namely the company / entrepreneur providing the facilities needed by workers, and workers and employers using the facilities provided by the government, or they can consult with the manpower office. conclusion pt. esa putlii prakarsa utama in carrying out a work relationship using an unspecified type of work agreement, in the case of an unspecified time work agreement the company holds a probation period for 3 months and the wage cannot be lower than the applicable minimum wage (article 90 paragraph (1) labor law). according to the manpower office, the minimum wage for barru regency is rp. 2,250,000. in this case pt. esa putlii prakarsa utama has not implemented the applicable minimum wage in barru regency, south sulawesi. rights and obligations of the parties at pt. esa putlii prakarsa utama, basically the obligations of workers are the rights of employers. likewise, the employer's obligation is the right of the worker. however, pt. esa putlii prakarsa utama has not fulfilled the obligations as stipulated in the manpower law, including still paying wages lower than the minimum wage, not carrying out the obligation to provide and explain company regulations to workers, not implementing working time in accordance with the ri minister of manpower and transmigration no. 11 / mn / vii / 2010 regarding work and rest time in the fisheries sector, and has not yet created a bipartite cooperation institution. inhibiting factors for work relations at pt. esa putlii prakarsa utama, there are 2 (two) factors; internal factors and external factors. the internal factor is that it occurs because of disputes between workers and employers. in addition, workers are still not law literate, causing bad intentions by employers. meanwhile, external factors are weather conditions, natural disasters and company location. in terms of weather factors, especially changes in unstable water temperature play an important role in the development of "fry" and "nener", in this case workers must reach the target according to the wishes of the employer/company. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 155 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references asuan, a. 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(2020). recall on village heads election: an election law reform. journal of law and legal reform, 1(2), 201-214. doi: https://doi.org/10.15294/jllr.v1i1.35451 abstract the research is intended to analyze the model of managing village head elections between times (recall) with a case study in reban village, reban district, batang regency. this study uses a qualitative method with a sociological juridical approach. the research emphasized and highlighted that, first, inter-village head election procedures in reban village, reban district, batang regency are in accordance with the mandate of article 47 of law number 6 of 2014 concerning villages. however, referring to article 45 of government regulation no. 43 of 2014 there are stages of selection that are not yet in accordance with technical rules: (a) the holding of the election exceeds the specified time limit. limitations of technical guidelines become the main obstacle and (b) funding for the election is still fully burdened to the candidates for village heads. second, the mechanism for electing village heads over time through a voting model with a representative system. voters who have the right to vote are every family head who lives in reban village, proven by a family card. elections are democratic with a turnout of 94.9%. keywords: village head election, democracy, political participation, recall submitted: 13 november 2019, revised: 13 january 2020, accepted: 14 january 2020 journal of law and legal reform (2020), 1(2), pp. 201-214. doi: https://doi.org/10.15294/jllr.v1i2.35406. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 202 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 201 table of contents ………………………………………………………….. 202 introduction …………………………………………………………………. 202 method …………………………………………………………………………… 203 recall on village heads election …………………………………. 204 i. analysis on head village election: case of reban village …………………………………………………..…………………… 204 a. inter-village head election: the facts on reban village ………………... 204 b. democracy process on village head election in reban village……..…... 206 ii. political participation on head village election …..… 208 a. analysis of reban village …………………………………………………... 208 conclusion …………………………………………………………………….. 209 references ……………………………………………………………………... 210 introduction the dynamics of democracy that occur at the village level have a unique model (wang & yang, 2010). the process of succession of leadership at the grassroots is not aggregated by the party system. expectations for a healthy village head election as a vehicle for democratization are huge (kamalak, 2013; arifin & dasri, 2019). the realization of a good democratic process can be started from the village head election. as long as the pilkades can be carried out directly, publicly, freely and confidentially as well as honestly and fairly (fuad, 2014). the village as the smallest system of government encourages a much greater space for participation for the community compared to the regional or central level, because of the proximity to the leader (nasution, 2014). the realization of community participation in the village is a political contestation in meeting the needs of the village in a sustainable manner (selfsustaining capacity) for the interests of the community (kumar et al., 2019; arifin, 2017). the election of village heads (pemilihan kepala desa, hereinafter called pilkades) is an instrument in the formation of a modern and democratic government (boonlue, 2015). where the pilkades became a form of distribution of the will of the people in the village area (hess, 2019). the village head is directly elected by the people (allen, lyons, & stephens, 2019). in fact, the election of village heads is no longer pure because it has been intervened by various forces and interests, but it is far more democratic than the election (bond et al., 2019). the election of village heads as a process of democratization can be realized naturally (arbatli & gomtsyan, 2019). but in the context of elections, the political symbols of the rural people are manipulated by the political power above them (asatryan & de witte, 2015). that was the result of the regionalization of the people who were ordered to follow instru ctions from http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 203 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia superiors. originally as a traditional leader, the village head had strong ties and commitment to the village community (asatryan, baskaran, & heinemann, 2017). but in its development (bracco & revelli, 2018), the position and function began to shift. its fatherly function began to recede (cai & sun, 2018). he is even more visible as an official of the national bureaucracy and an administrator for the interests of the center (cheung, davies, & trück, 2019). this phenomenon cannot be separated from the dynamics of the position of village head who turned out to be a "symbol of prestige"(correa-lopera, 2019). it is not only a struggle for many people but has become a commodity in the social strata (correa-lopera, 2019). the position of the village head is treated as a commodity that can be traded according to rational calculations. the commoditization also often makes the village a political area that is turned into a kind of political market (das & maiorano, 2019). not surprisingly, the strength and capital from outside the village played a role (evans, holtemeyer, & kosec, 2019). the reform in the village head election process emerged after the issuance of law no. 6 of 2014 concerning villages. the election of village heads is held simultaneously to adjust the period tenure of each village. one of the most recent schemes in this process namely the inter-time selection model or recall. in the case of village heads who are dismissed with the remaining term of office for more than 1 (one) year, an inter-regional election can be held through village deliberations. in general, this model is not very popular with the public. previously if there was a vacancy in the position of a village head, the government-appointed an official of the village head until there was a definitive village head elected through the pilkades. reban village is the first village organizer of pilkades inter-time in batang district, after the presence of law no. 6 of 2014 concerning villages. the previous head of reban village passed away in the remaining 4 (four) years. the paper would like to examine, analyze and discuss concerning two main points, first, the procedure and mechanism for holding inter-village head elections in reban village, reban district, batang regency, and second, process of democaracy in the inter-village head election in reban village, reban district, batang regency? method through qualitative research methods, it is expected to be able to describe the implementation of village head elections over time-based on applicable laws and regulations. this study uses a sociological juridical approach (fan & yan, 2019; arifin, waspiah, & latifiani, 2018). the study, which was packaged in the realm of sociolegal study (fielding, 2018), was designed through several stages, namely: confirmation of research traditions (design of research strategies and determination of research locations); choosing data collection techniques and choosing data analysis and interpretation techniques (fischer, 2016). a sociological juridical approach is to identify and conceptualize law as a real and functional social institution in a real -life system. http://creativecommons.org/licenses/by-nc-sa/4.0/ 204 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this study took a study in reban village, which was the first village to organize an inter-village head election in batang district after the enactment of the village law. data collection techniques used are: observation, interview and document study (fischer & ali, 2019). data collection uses primary and secondary data sources (ingram & marchesini da costa, 2019). data analysis methods used in this study are as follows: 1). data collection; 2). data reduction; 3). presentation of data; 4). conclusion and verification. based on the research results, conclusions can be drawn which are answers to the problems raised in the study. recall on village heads election i. analysis on head village election: case of reban village a. inter-village head election: the facts on reban village the election of village heads as an arena for open contestation in the democratic process at the village level. the resources of political power from social, economic to cultural resources become a generator of voter mobilization. political segmentation that has been built is increasingly dynamic following the modernization of national contestation. the election of the village head becomes the political configuration of the village community in changing the power structure to be achieved. the village head as a symbol of power has the political power to determine the direction of the policy that is linear with the aspirations of the people. the election of the village head himself is held in the event of a vacancy in the village head's position. the election of village heads is now held simultaneously according to the time period of each village's tenure. however, in the latest regulation, if the village head is dismissed for the remaining term of office for more than 1 (one) year, there will be an election for the village head from time to time through a village meeting. reban village is located in the reban district area of batang regency. the total area of the geographic area is 203.3 ha. the total population of 2,349 inhabitants. reban village is divided into 15 rts (rukun tetangga), 6 rw (rukun warga) and 3 dukuh (village) namely krenon, reban, and gumelar. reban village is classified as a self-help village with the original category. the majority of the population earns a living as a farmer. reban village is the first village to be held inter -village head election in batang district, after the presence of the village law. the previous head of the reban village, died in the remaining 4 (four) year tenure on october 4, 2014. the inter-time election (recall) model became something new in reban village. however, it was still stipulated by government regulation number 72 of 2005 concerning villages, it had not yet been regulated regarding village head elections between times (recall) to follow up on cases that occurred in reban village. the recall model is a new mechanism that is implemented through consensus and direct collection. during this time if there is a vacancy in the position of the village head, the regional government appoints an official of the village head until the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 205 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia election of the definitive village head through the election of the village head. the appointment of a village head official by the regent or mayor in his main task of holding the election of the village head is no later than 6 (six) months after the village head is dismissed from his position. however, in practice, the term of office of a village head official can be extended until the term of office of a terminated village chief expires. the village law and government regulations regulate those village head elections are not held temporarily but are held simultaneously. thus, the village whose village head was terminated before his term had expired and had to wait for a schedule determined based on statutory regulations. political contestation in the pilkades between times remained tight and fierce. candidates for village heads compete with each other to occupy the post of village chief reban. it is the social structure, position, and rank inherent in the village head that makes many people have ambitions to win the position of the village head. competition to win seats of power is always followed by ambitious competition. the position of the village head both in the administrative and political capacity of power is a symbol of prestige in social status. inter-regional elections in reban village can be one of the benchmarks, the extent to which the new rules can be realized. the mechanism is regulated formally in article 47 of the village law which stipulates that in the case of the remaining term of office of a village head who is dismissed for more than 1 (one) year, an pilkades is held intermittently through village deliberations. the stages of pilkades between time in reban village: 1). preparation phase: establishment of the election committee, preparation of election procedures, preparation of pilkades cost budget, preparation of pilkades schedule, pilkades socialization, data collection on permanent voter lists, registration of prospective village heads, selection and determination candidate for village head, designation of image mark and campaign. 2). stage of election: deliberation on voting, vote counting, and determination of election results. 3). post-election stage: reporting of election results, the interim appointment of village heads and dissolution of the committee. however, referring to government regulation no.43 of 2014, there are some special notes on the stages of the pilkades that need to be evaluated. implementation of pilkades exceeds the specified time limit. pilkades was only held on july 12, 2015, whereas the village head had previously died on october 4, 2014. as stipulated in article 45 of government regulation no. 43 of 2014 that village deliberations held specifically for the implementation of pilkades between times were held no later than 6 (six) months since the village head was dismissed. the limited technical guidelines regarding pilkades between times (recall) become the main obstacle to the incompatibility of the implementation time with the applicable rules. the election committee had problems in determining the mechanism for electing the village head. technical guidance regarding pilkades between time s (recall) in batang regency is still limited. the regional regulations and regulations of the regent of batang regency which specifically regulates the election of village heads are still in the legislation process. the selection committee used the results of the village consultation agreement as a basis for consideration in the preparation of the pilkades order. as mandated in article 45b paragraph (1) government regulation no. 43 of 2014, that village deliberations in determining the technical election of http://creativecommons.org/licenses/by-nc-sa/4.0/ 206 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia village heads between the times (recall) carried out by the election committee. the election committee has the authority to determine the technical rules for the election based on the results of the village discussion agreement. furthermore, there are still many policies that have national coverage of the derivation of regional regulations or the decisions of regional heads, but the existing legal umbrella cannot be implemented optimally. the fact that appears as the next implication is that the implementation of the pilkades so far has run without an adequate foundation and policy umbrella while many national regulations still require local wisdom regulations. the legal vacuum in the region regarding local regulation is very dangerous if there are disputes in the village head election caused by a very high factor of group fanaticism, blasphemies (black campaign) and the loss of mutual respect in the democratic process. the stages of village head election between times have the potential for conflict. village consultation as a strategic forum has a central role in managing conflicts that arise. funding for the election of the pilkades is still fully borne by the candidates for village heads. based on the latest guidelines, the financing budget is borne by the village budget fund (apbdesa). this is regulated in article 45 a paragraph (2) of government regulation no. 43 of 2014 which states that election costs are borne by the apbdesa by the election committee submitted to the acting village head. the transition period caused the application of the village law not yet fully realized. the regional government of batang regency has not budgeted funding sources for pilkades funding from time to time through the village budget. so the election committee charged pilkades financing to the village head candidates. this policy clearly opens up space for access to money politics. competition from prospective village heads took place increasingly tight. the practice of political lobbying, campaigning to money politics is possible, considering that it has become a hereditary tradition that adorns the holding of village head elections. the practice of money politics in village head elections has a pattern that includes the components of the actors, strategies, and value systems that drive them. the practice of money politics that takes place extensively increases the formal participation of voters, however, such participation is pseudo-participation because there is no rationality. political voluntarism does not appear (dawkins et al., 2019). expensive politics goes on to buy up votes (money politic). the expectation of a good and clean pilkades implementation is to give birth to a village head who is able to realize a village government that is responsive to the aspirations of the people, able to articulate issues, the campaign work program into an accountable public policy (watts, tacconi, irawan, & wijaya, 2019). inter-regional pilkades in reban village as the implementation of a new model of the democratic process seems to still have a space for the entry of negative traditions that have lasted for generations. b. democracy process on village head election in reban village the inter-village head election mechanism in reban village is implemented through a voting model with a representative system. voters who have the right to vote are every family head who lives in reban village, proven by a family card. the total number of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 207 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia voter lists is 686 people, with details of the number of male voters as many as 612 people (89.2%) and female voters as many as 74 people (10.8%). the election results are as follows: voters who came to give their voting rights were 651 people (94.9%). voters who abstained were 35 people (5.1%). 1st candidate (faridul wujdan) obtained 182 votes (28%), 2nd candidate (didiek sutamaji) obtained 439 votes (67.4%) and damaged or invalid ballots, as many as 30 votes (4.6%). the first village in indonesia as the executor of the inter-village head election is grogolan village, dukuhseti district, pati regency. the legal basis used to carry out the pilkades namely decree of regents pati no. 54 of 2014 concerning the implementation of pati regulations in 2014 concerning the village head. in its regulation, those who have the right to vote in the pilkades between times are the elements of figures, elements of the organization and elements of institutions in the village up to a total of 194 voting rights. the election of village heads in grogolan is carried out through a village consultation forum with a voting system based on the specified suffrage. the mechanism of the implementation of the inter-village election between reban village and grogolan village is indeed not much different. the technical obstacles faced by reban village made the selection committee use a slightly different mechanism. the selection mechanism is determined through the results of the village consensus agreement. the pros and cons of the democratic process always emerge in political dynamics. democracy is basically an ideal model for managing conflict between autonomy or freedom with control. the concept of democracy offered in the implementation of pilkades between times actually has an ideal model, if the village forum is held properly and optimally. in a juridical manner, inter-village head of village election techniques can be carried out using 2 (two) ways. as regulated in article 45b paragraph (3) of government regulation number 43 of 2014 that the election of candidates for village heads by the election committee is through a consensus mechanism or through voting agreed upon by village deliberations. the mechanism of the inter-village head election in reban village through the voting model, with a representative system, does not conflict with applicable regulations. the selection mechanism is the result of a village consultation agreement. the holding of village head elections cannot be separated from the democratic process that involves community participation. legally the existing regulations have given strategic choices to the community to determine how they channel their aspirations (tarverdi, saha, & campbell, 2019). indeed the democratic process not only requires state accountability to a high degree and a reorder of civil society, but also requires substantial direct participation in local community institutions (stutzer, baltensperger, & meier, 2019; qibtiyah & muafifah, 2019). the inter-regional election in reban village is a real form of channeling the will of the people in the democratic process. model of voting with a representative system, as a form of acculturation of the political culture of the reban village community with applicable regulations. the voting model with the right to vote granted to each head of the family does not necessarily make the pilkades run less democratic. where in this portion each head of the family who has the right to vote, given the opportunity to consult with the family in channeling aspirations. this is intended so that other family members also http://creativecommons.org/licenses/by-nc-sa/4.0/ 208 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia have a portion in the democratic process, even representation. it might be understood that democracy is not a rigid, dead, absolute, or concept that cannot be developed. democracy can be understood based on the vision or perception of the people who study it (song, 2019; ayon, 2017). the concept of democracy in indonesia wants the role and full participation of the people. where democracy in indonesia should prioritize local values and culture does not have to emulate western culture. democracy in the indonesian state based on the 1945 constitution is often referred to as pancasila democracy. democracy is synonymous with the process of deliberation to reach consensus, by starting with family and mutual cooperation which is shown on welfare which contains religious elements based on truth, love and noble character (zhang, gan, xu, & yao, 2014). the principles of democracy are equality, freedom, and pluralism. in the context of implementation and implications, this can be understood as recognition of the diversity of the participatory political attitudes of the community within the democratic framework at the village level(schneider, 2019). the election of village heads from time to time is a manifestation of democracy in local wisdom in the village administration (qiao, ding, & liu, 2019). community participation in the democratic process is expected to be able to drive change for village development and progress (williams, 2019). in the election of the village head, the community has rights and obligations as citizens, although the mechanism for the transfer of people's sovereignty is done through their representatives (representative democracy). the inter-village head election process in reban village has been democratic and does not conflict with applicable regulations. the concept of democracy developed by the reban village community can be used as a reference in the process of channeling the will of the community. although the village head election uses a representative system, strategic decision making is produced through a deliberative forum. the level of community participation in the voting process was very high. in practice in the field, channeling the will of the people through indirect democracy (indirect democracy) can be carried out properly if there is good cooperation and support from all parties involved(min & wohn, 2018). indirect democracy (indirect democracy) is a democracy that involves all people in making an indirect government decision, meaning that the people send representatives who have been trusted to convey their will or message (page, 2019). here the people's representatives who are directly involved become the people's intermediaries (westman, castán broto, & huang, 2019). ii. political participation on head village election a. analysis of reban village participation is an important aspect of the democratic process(lee, heffron, & mirza, 2019). political participation is an organized effort by citizens to elect their leaders and influence the shape and course of public policy (lee et al., 2019; arifin & hidayat, 2019). political participation as an activity of a person or group of people to participate actively in political life, namely by choosing the country's leadership directly or indirectly influencing government policies. the social dimension in http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 209 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia national politics is often mixed with access to interests. therefore, that political culture dominantly influences the level of political participation (liu, xue, yang, & shi, 2019). inter-regional elections in reban village are inseparable from village community participation. the selection mechanism is fundamentally determined through an agreement on a village deliberation forum as regulated in article 54 paragraph (1) of law number 6 of 2014 which states that a village deliberation is a deliberative forum participated by the village consultative body, the village government, and elements of the village community to deliberate strategic matters in the administration of village government. the reban village community as an element of village deliberation in a participatory manner has played an active role. the strategic decisions regarding the pilkades were largely generated from the aspirations of the people. community representation in the composition of the election committee has fulfilled a quota. even though the election was through a voting system with a representative system, the level of community participation was very high. the people of reban village who have the right to vote are 686 people. while the level of community participation in the voting process reached a percentage of 94.9%. in the practice of organizing democracy, political participation is a vital element. because of the low number of political participation, it is doubtful that the democratic process will fully gain the people's legitimacy. inter-regional elections in reban village have been running democratically. access to money politics is closely monitored by all parties concerned. the two competing village head candidates have agreed to sign an agreement containing a prohibition on the use of money political access in the implementation of pilkades between times. the success of an elected candidate in order to attract more sympathy from the public as well as more possible, if the elected candidate can take advantage of power & will then be translated into the language of political strategy, for example, such as campaigns and money politics (lappie & marschall, 2018). while the source of power itself can come from wealth, wealth, status, family, science, information, position, popularity, high social status and also the organized masses both in terms of religion and economy (kang, park, & song, 2018). with a political strategy, formal and informal support will flow automatically for the elected candidates(jiang, 2018). the high percentage of reban villagers in giving their voting rights is not a measure of the success of the democratic process. however, the active role of the community in organizing the pilkades significantly influences the level of political participation in the democratic process. the commitment of all related parties, in minimizing the access to money politic must be given appreciation. because it started with the democratic party of the village community that good political education should be taught (jaung, carrasco, & bae, 2019; arifin & hidayat, 2019). conclusion procedures for organizing inter-village head elections in reban village, reban district, batang regency are in accordance with the mandate of article 47 of law http://creativecommons.org/licenses/by-nc-sa/4.0/ 210 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia number 6 of 2014 concerning villages. however, referring to article 45 of government regulation number 43 of 2014 concerning regulations for implementation of law number 6 of 2014 concerning villages, there are several stages of the pilkades that are not in accordance with the technical rules of implementation, namely: (1). the limited technical guidelines regarding inter-district head elections in batang district are the main obstacle. (2). funding for pilkades between time is still fully borne by the candidates for the village head. so it is not in accordance with the mandate of article 45a paragraph (2) of government regulation no. 43 of 2014 which confirms that the cost of implementing the pilkades is imposed on the apbdes. the inter-village head election mechanism in reban village is implemented through a voting model with a representative system. voters who have the right to vote are every family head who lives in reban village, proven by a family card (kk). the pilkades is still running democratic with a high level of political participation. strategic provisions in the implementation of pilkades are discussed through village deliberations. the level of community participation in the voting process reached 94.9%. the commitment to ban the use of access to money politics in the implementation of the pilkades is well enforced by all parties concerned. from the conclusions outlined above, the authors provide the following recommendations: several stages of holding inter-village head elections in reban village are not in accordance with the applicable technical guidelines, as outlined in the conclusion. so the authors provide suggestions as follows: (1). the regional government of batang regency must immediately make regional regulations and regents regulations governing the election of village chiefs over time. in addition, budgeting for pilkades funding funds between time through the apbdesa can be realized. by alleviating the material burden of the village head candidates, it is hoped that healthy competition can be carried out by minimizing access to money politics in the elections. references allen, e., lyons, h., & stephens, j. c. 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(2014). health shocks, village elections, and household income: evidence from rural china. china economic review, 30, 155–168. https://doi.org/10.1016/j.chieco.2014.06.006 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 279 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article analysis of the corruption charge of the rice management at gudang bulog baru randugarut, semarang regional subdivisions by 2016-2017 (case study of convict nurul huda) irawan1, joko susanto2 1politeknik ilmu pelayaran semarang (navigation shipping polytechnic) 2community movement against corruption (gmpk), semarang  irawan071981@gmail.com cited as irawan, i., & susanto, j. (2020). analysis of the corruption charge of the rice management at gudang bulog baru randugarut, semarang regional subdivisions by 2016-2017 (case study of convict nurul huda). journal of law and legal reform, 1(2), 279-296. doi: https://doi.org/10.15294/jllr.v1i1.35451 abstract law enforcement is to realize a sense of justice, legal certainty and usefulness in society. for justice seekers, police and prosecutors 'investigations, as well as quality public prosecutors and judges' decisions can bring about justice or reflect a sense of justice that can be carried out and can be accepted or satisfied by justice seekers. therefore, through this case study, the writer will invite to see whether there is still a sense of justice, as experienced by convicted corruption cases of rice management in the new bulog warehouse randugarut subdivre semarang in 2016-2017 named nurul huda bin sholeh. even though it was clearly stipulated according to article 55, nurul huda could be classified as included in the offense. but the prosecutor actually demanded nurul huda as the sole offender. whereas nurul huda should have the right to obtain the protection of his rights, his equality in the eyes of the law and proportionality in his interests, so that if the burden of accountability for losses in the corruption of gbb ranndugarut is only charged to him, it will certainly damage the value of justice received. keywords: justice, case study, corruption, bulog, criminal law journal of law and legal reform (2020), 1(2), pp. 279-296. doi: https://doi.org/10.15294/jllr.v1i2.35406. issn (print) 2715-0941, issn (online) 2715-0968 submitted: 8 january 2020, revised: 23 january 2020, accepted: 25 january 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:irawan071981@gmail.com http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 280 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 279 table of contents ………………………………………………………….. 280 introduction …………………………………………………………………. 280 corruption case of gbb randu garut …………………………….. 282 i. the chronology in the case of gbb randu garut corruption ……………..…………………………………………………… 282 ii. the case analysis ………………………………………………………… 285 judicial system for corruption cases in indonesia ……….. 288 the role of corruption court judges ……………………………. 289 conclusion …………………………………………………………………….. 291 references ……………………………………………………………………... 292 introduction main goal of law enforcement is realizing sense of justice, certainty of the law, and expediency in society. therefore, in conducting process must reflect the aspects of certainty and order of law. sudikno mertokusumo defines a criminal as final device or ultimum remedium. some consider ultimum remedium is one of the principles which is in indonesian criminal law that says criminal law has to be the last effort in the law enforcement (sutatiek, 2013). it means if a case can be done through another way, such as kinship, negotiation, mediation, court of justice, or administration law, therefore, those ways should be taken first (hamzah, 1991; 2010). in every case investigation and prosecution or adjudication there is a decision that can be accounted not only from certainty of the law (formulation of articles in law) and expediency for some parties, but also must reflect justice and human values. refer to an opinion of former supreme judge, bismar siregar, said that in set his verdict, first a judge pray to allah swt, on behalf of his name a verdict is said. he swears in the name of the one almighty god and his heart begins to tremble. so, a judge must qualified where based on the consideration of law according to the facts revealed at the court, in accordance with the judge’s beliefs without any influences from various internal and external intervention parties, so it can be accounted professionally to the public (the truth and justice) (lopa & yamin, 2001). thus, investigation and prosecution or good verdict must reflect the sense of justice and truth which can bring benefit for the public, nation and state. moreover, it also must be visionary, so that the case management or its verdicts are not obsolete. for the justice seekers, police and attorney investigation, public prosecutor and qualified jurisprudence can create justice or reflect sense of justice that can be held, accepted or satisfied them. investigation, prosecution and qualified verdict exist not only because the finesse and professionalism of the law enforcement and the judge in http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 281 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia applying law on a case, but also there is a skill to reconstruct justice which exists in the public. police, attorney, and judge in handling and hearing professional case, is not only an applicant, enforcer, and inventor of the law, but is obliged to predict what will happen after the verdict is handed down (siregar, 1995). this is what the convicted corruption of rice management seeks in the new bulog warehouse randugarut regional semarang subdivision by 2016-2017, nurul huda bin sholeh who is the residents of cemplorejo vi/7 rt 5/rw 3, krobokan village, sub-district of west semarang, semarang city, unable to pay personal legal counsel, but a prodeo case counseling. but the first time the suspect who was born on 6 september 1973 was convicted in the register of case number: 102/pid.sus– tpk/2017/pn.smg, with criminal charges handed down by a joint prosecutor from the public prosecutor at the central java high prosecutor of the city of semarang, for 6 years reduced during the defendant was in custody in order to the defendant is still detained and sentenced with criminal fine rp 50.000.000,(fifty million rupiahs) subsidiary 3 (three) months in confinement and dropping punitive money for state deprivation reach rp. 5.017.309.194,40 (five billion, seventeen million, three hundred and nine thousand, a hundred and ninety four, comma forty rupiahs) subsidiary 3 (three) years in confinement (mertokusumo, 2009). unfortunately, in this case, nurul huda used to be the sole perpetrator by attorney general in central java with the condemnation by semarang state court at the first degree with prison sentences for 4 (four) years, fine about rp. 50.000.000 (fifty million rupiahs) and paid punitive money for state deprivation reach rp. 739.667.000 (seven hundred and thirty nine million six hundred and sixty seven thousand rupiahs) subsidiary 2 (two) years in confinement. after the appeal had granted by general attorney semarang city from supreme court central java, then based on the verdict from supreme court central java number: 12/pid.sus-tpk/2018/pt smg, the sentence dropped was strengthened, with his demand reinforcing the verdict of the corruption court semarang, which was asked for appeal. afterwards, the verdict was not stopped there, imperial court rate, in october, 30th 2018, the verdict was weighted with the punishment which turned into prison penal for 5 (five) years and the fine also went up to rp 200.000.000, (two hundred million rupiahs), subsidiary 6 (six) months in confinement, and paid punitive money for state deprivation reach rp. 739.667.000 (seven hundred and thirty nine million, six hundred and sixty seven thousand rupiah) subsidiary 2 (two) years in confinement. in that case, nurul huda as a weigh agent gbb randu garut felt deprived of justice which he should receive. that was because of the status of the sole suspect which he got, and the responsibility to paid punitive money which he did not enjoy. whereas, if you look closely in the case, nurul huda made hollow staple to fool spi, so that they did not know if there was a lack about 600 tons result fiction gd based on his boss instruction. however, he still became the sole suspect which must bear the whole loss, without any parties which could be asked for responsibility related to the loss of the money that caused state deprivation approximately rp.5.017.309.194,40 (five billion, seventeen million, three hundred and nine thousand, one hundred and ninety http://creativecommons.org/licenses/by-nc-sa/4.0/ 282 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia four, comma forty rupiahs). whereas nurul huda was not equal as the chief, he was only common stated owned company employee who graduated from high school and worked as a weigh agent. but, the investigator or public prosecutor in supreme court of central java and general attorney of semarang city do not develop this case or set new suspect until now. from this, this writing will consider further about the value of justice which nurul huda, the convicted of the gbb randu garut corruption case with state deprivation reach rp. 5.017.309.194,40 (five billion, seventeen million, three hundred and nine thousand, one hundred and ninety four comma forty rupiahs), deserves. this paper examines and analyzes two main point, first, how could the corruption case of rice management at gudang bulog baru randu garut, semarang regional subdivision by 2016-2017 which caused state deprivation reach rp.5.017.309.194,40 be handled? and second, how does the value of the justice which gained by the convict nurul huda at that case? corruption case of gbb randu garut i. the chronology in the case of gbb randu garut corruption gbb corruption began with an invention of hollow in the stacks of staple at the warehouse when the rice distribution process in gbb randu garut to gbb harjosari bawen semarang district in june 19th – 20th 2017 was going on. with that invention, this case was followed up with a formation of gbb randu garut semarang regional subdivision stock opname team to calculate the stock commodity of rice and other staples which are managed both physical and administrative toward the allegation of the shortage of rice commodity stock at gbb randu garut. the team of gbb randu garut stock reported that there was a gap in size about 697.653,83 kilograms or 697 tons. in that case, nurul huda as a weigh agent at gbb randu garut based on perum bulog directors’ decree number : kd-61/ds102/03/2012 in march, 9th 2012 has a job to do balancing, logging, accounting in and out of perum bulog commodities, also observing and testing the accuracy of weigh tool, and help the warehouse chief in terms of income, storage, management, maintenance, and outcome of perum bulog commodity, based on perum bulog directors’ decree number : pd-11/ds200/03/2017 in march, 24th 2017 about the organization and labor of the regional division bulog section 77 verse 2 which become the basis for the case of 600 tons rice disappearance from gbb randu garut. this case started when there was an appropriate rice perception between the quantum amount of rice listed in the warrant receives item with the amount of quantum rice that gbb of randu garut accepted. with this inappropriate condition in the warrant receives item with the real which randu garut gbb accepted, nurul http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 283 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia huda reported to hosdianto. hosdianto was the head of the gbb randu garut warehouse. he said that he would handle that problem and ask nurul huda to make weigh receipt according to the amount of quantum rice listed in the warrant receives item and inappropriate condition that randu garut gbb received. although it was causing a lack on the rice supplies at randu garut gbb. to offset the lack of the rice supplies and to anticipate the inspection from internal supervisor unit bulog toward the rice supplies in the warehouse, thus it needed to unpack the staple stacks, so that internal supervisor unit could not see the lack. nurul huda with a notice from hosdianto did the unpacking process every 6 month and needed someone outside the warehouse to help him. to pay the worker who helped him, he took out the rice from gbb randu garut warehouse as the order from hosdianto without looked at the unload warrant/delivery order where the money of the rice spent outside the unload warrant/delivery order was used to covered up the operational cost of unpacking staple process, and the rest of it was used by hosdionto for personal need. nurul huda had suggested hosdianto to report the rice supplies to semarang regional subdivision, but hosdianto refused it and calmed his down that it would be his responsibility. until he was transferred to be the head of tambak aji gbb, the lack of the supplies were never been replaced. when the turn of the head of the gbb randu garut warehouse from hosdianto to budiawan hendratno, have done some checking on the rice storage both physically and administratively (stock opname) by the stock opname team which formed by regional division and recorded at the time of examination in october, 8 th 2015 was available 200.677 bale/4.417.155,90 kilograms. but, in that examination was not be done entirely because it was done by counting the length times the width of the foot times the height of the foot times 5 (because it is locked 5) so that the staple hollow was unseen. even though hosdianto was transferred to be the head of tambak aji gbb, the lack of the rice supplies was still not replaced. within 2016 until the middle of june 2017, nurul huda persisted the process of taking out the rice from randu garut gbb without looked at the unload warrant/delivery order by order of budiawan hendratno where the money was used both to covered up the operational cost of unpacking staple process and to anticipate if there was an examination from internal supervisor unit to randu garut gbb. as a result, the lack of ric e supplies was increased to 697 tons. in the process of taking out the rice without looked at the unload warrant/delivery order, nurul huda asked the worker named abu tolib, edi suprapto, and teguh setiono to come to randu garut gbb at the specific time which usually outside of work hours after 8 p.m. or on weekend, he also decided which rice stack would be taken out and which staple would be arranged. after the rice was taken out from the warehouse, the stacks in the hollow staple were arranged with flonder or wooden crutches which put inside the stacks with the position of the flonder is vertical and horizontal, so, the rice can be put on it. thus, the staple looks full, though it is empty inside. if the vertical flonder is unexpected, nurul huda would put some stacks of rice below based on the need. then, the rice which taken out from the warehouse was loaded in the pickup car l-300 and rusno’s kijang where the rice purchased in cash from nurul huda and http://creativecommons.org/licenses/by-nc-sa/4.0/ 284 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia priced rp. 6.000; s/d rp. 6.300;per kilos. nurul huda’s decision as the weigh agent who taken out the rice supplies from randu garut gbb without looked at the unload warrant/delivery order and had arranged the rice stacks inside the hollow staple in gbb randu garut warehouse has been contradicted with: 1. perum bulog directors’ decree number: kd-107/do301/03/2009 in march 24th 2009 about warehouse laws in perum bulog environment section 6 about commodity handover: a) commodity handover in the warehouse is based on unload warrant/delivery order which has been signed by the head of regional division/ the head of regional subdivision/ the head of logistic department/ another functionally who is authoritative; b) the amount of weight, type, quality, commodity parties which are handed must fit with the amount which is noted in the unload warranty/delivery order; c) the transition of responsibility on the commodities which are handed from the head of the warehouse/ the warehouse clerk to the party which accepts it after the weigh-in process must be proved with signing the handover document by the head of the warehouse who receives the item; d) the handover of the commodities in the warehouse is noted consist of the number of bales, gross weight, and net weight, which are administrated and reported according to the standard operating of administration and accountability report of commodity which are inseparable attachment from this decision. 2. perum bulog directors’ decree number: pd-19/do100/06/2017 in june 16th 2017 about warehouse management section 12 about the commodity handover verse 1 where the unload item and handover item in the warehouse based on the unload warranty/delivery order. 3. perum bulog directors’ decree number: sop-25/do301/03/2009 in march, 24th 2009 about to the standard operating of storage item at perum bulog, roman numerals v: in committing the perum bulog commodity saving, must be regulated in some ways according to the item’s characteristic which is kept so that it doesn’t make another lack on the item or another item inside the warehouse. besides, every stack must consist of the same bales, and there must a strong flonder below the stacks which are arranged well for good circulations mainly from below. in order to make the stacks which are saved in the warehouse strong enough, won’t come down easy, and countable, so, the arrange system must be regulated with lock system combination of 5,7,8 locked bricks. the consequences of nurul huda, hosdianto, and budiawan hendratno’s actions in abusing their authority, chance, or facility which are belong to their position caused financial loss for the state reached 697 tons which accumulated into rupiah that is equivalent to rp. 5.017..309.194,40 (five billion, seventeen million, three hundred and nine thousand a hundred and ninety four, comma forty rupiahs), which is suitable with audit report in order to count the losses of the state on suspicion of criminal corruption on rice management in randugarut gbb, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 285 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia semarang regional subdivision by 2016-2017 from indonesian supreme audit institution central java deputation. whereas in the verdict of the case start from the first degree of semarang district court to the cassation of supreme court, nurul huda was considered by the council legally and surely guilty in doing criminal corruption together, as set and threaten in section 3 jo section 18 act of the republic of indonesia number 31 in 1991 about against corruption charges, as altered and augmented with act of the republic of indonesia number 20 in 2001 about the transformation of the first act of the republic of indonesia number 31 in 1991 about against corruption charges jo section 55 verse 1 criminal code, as the public prosecutor’s subsidiary indictment. ii. the case analysis nurul huda was become the sole perpetrator in the randugarut gbb corruption, then convicted for 5 (five) years in confinement, imposed to pay the fine rp 200.000.000,(two hundred million rupiahs) subsidiary 6 (six) months in confinement, and paid punitive money for state deprivation reach rp. 739.667.000 (seven hundred and thirty nine million, six hundred and sixty seven thousand rupiahs) subsidiary 2 (two) years in confinement are worthwhile question. consider of every action that had been prosecuted to him were the order from his boss, hosdianto and budiawan hendratno. in 2014, when randugarut gbb was conducted by hosdianto, the position of rice supplies had had lack which caused by fiction gd. nurul huda was asked by hosdianto to write the quantum of rice down as in the warrant receives item and in unreal condition that randu garut gbb received. that is the beginning of the lack of the rice supply in randugarut gbb which reached 400 tons. to cover up the lack of the rice supplies and to anticipate the inspection from internal supervisor unit bulog toward the rice supplies in the warehouse, nurul huda was asked to make a hollow staple because the counting is only seen visually, like on the key of 5 times length times width times height. to make that hollow staple needs some costs to pay the worker, then the costs, below hosdianto’s instruction, nurul huda was asked to taken the rice out from randugarut gbb without looked at the unload warrant/delivery order, then it was sold to rusno, a retired from bulog. the money of the rice was used to pay the operational cost of staple making process, and the rest of it was given hosdianto for personal need. after that, when the turn of the head of the warehouse from hosdianto to budiawan hendratno, the physical stock was still in-appropriate and it was known by both of them. when budiawan hendratno conducted the warehouse, every time there was a distribution, the hollow staple was seen. then, he asked nurul huda to make new hollow in another staple. it was the same as before that the making of the hollow needed some costs for tearing down and reforming the staple, so the cost problem repeated on taking the rice out without looked at the unload warrant/delivery order. http://creativecommons.org/licenses/by-nc-sa/4.0/ 286 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in that case, hosdianto and budiawan hendratno’s status never upgraded became the suspect and it was only nurul huda who became the sole perpetrator. that was became an objection because nurul huda only executed his boss’ order, and responsible for the loss of 697 tons or rp. 5.017.309.194,40 (five billion, seventeen million, three hundred and nine thousand, a hundred and ninety four, comma forty rupiahs). it is true that nurul huda can be accounted for the lack of the rice supplies, but he is not the only one. the boss who gave him an order also had the responsibility for the lack that was happened. start from directors’ decree number: kd 107 chapter iv section 10 verse 1 that if happen a warehouse shortage which caused by decreasing, lacking/losing, breaking of the commodities which are saved in warehouse, then, the head of the warehouse, office clerk, and weigh agent can be accused for compensation demands. at verse 2 then there is an exception in the rule of section 10 verse 1 if: 1. the head of the warehouse, office clerk, and weigh agent, each personally can prove that the loss was not their fault or their neglect; 2. the loss is caused by the condition of force majeure (like earthquake, landslide, flood, wildfire or other possibilities beyond the clerk ability); 3. and the last natural decrease which is not beyond the toleration limit. at the chapter v section 11 verse 1 explains that the head of regional division/ the head of regional subdivision/ the head of logistic department, the head of the warehouse, and the warehouse clerk must conduct every activities of the item management to prevent the loss appears. in fulfill the corruption charges as mentioned in the section 3 verse 1 jo section 18 act of the republic of indonesia number 31 in 1991 about against corruption charges, as altered and augmented with act of the republic of indonesia number 20 in 2001 about the transformation of the first act of the republic of indonesia number 31 in 1991 about against corruption charges will face some factors, such as: a. to benefit oneself or others or corporation; b. abusing the authority or facility which exist because of his/her position; c. disserve country financial or economy. in that case, what prosper mean is same with gain profit, that is earn bigger than the outcome, regardless of the further use of the acquired income. this trait of against the law has been exist in other elements, important element or main part from offence’s core which must be defined or given a boundary by the law to prevent interpretation differences in applying section 3. that is the third element in this practice needs justification from the constitutional law and public administration (mustamu, 2014). then the case of nurul huda was proved that some took benefit for themselves or others in a corporation. in abusing the authority, chance, and facility because the position was fulfilled. in directors’ decree number: kd 107 chapter iv section 10 verse 1 that if happen a warehouse shortage which caused by decreasing, lacking/losing, breaking of the commodities which are saved in warehouse, then, the head of the warehouse, office clerk, and weigh agent can be accused for compensation demands. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 287 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in this case, not only nurul huda who was the clerk that can be accounted, but also hosdianto and budiawan hendratno as the head of the gbb randugarut warehouse on the loss of state deprivation reach rp. 5.017.309.194,40 (five billion, seventeen million, three hundred and nine thousand, a hundred and ninety four, comma forty rupiahs). however, the verdict until the degree of cassation in supreme court in october, 30th 2018, just incriminate with charges which verdict from 4 (four) years to 5 (five) years in confinement, and the fine increased to rp 200.000.000,(two hundred million rupiahs), subsidiary 6 (six) months in confinement, and paid punitive money for state deprivation reach rp. 739.667.000 (seven hundred and thirty nine million, six hundred and sixty seven thousand rupiahs) subsidiary 2 (two) years in confinement. it did not feel fair for nurul huda, because he considered that in the deed, his boss, hosdianto, had a more important role in the state deprivation. however, hosdianto had never been examined as a suspect of corruption cases of randugarut gbb until he died, also budiawan hendratno because of his status had never been going up. it is clear that the serve which was assumed it was proven on nurul huda, that was found guilty and assured until cassation grade in supreme court, against section 3 jo section 18 act of the republic of indonesia number 31 in 1991 about against corruption charges, as altered and augmented with act of the republic of indonesia number 20 in 2001 about the transformation of the first act of the republic of indonesia number 31 in 1991 about against corruption charges jo section 55 verse 1 criminal code, as the prosecutor’s subsidiary indictment. regarding the inclusion regulation in doing criminal offense are found in section 55 and 56 criminal code. in that regulation, we can conclude that between the person who ordered and the person who do the order of criminal offense is being categorized as the criminals. according to van hammel in lamintang, which taught a theory about inclusion as a general theory, primarily is a theory about responsibilities, in which an offence that according to the legislation, actually can be done by two people or more in a good corporation physically (intellectual) or materially (sukmawati, 2016). whereas, when we look at the existing file, hosdianto and budiawan hendratno, when the physical examination of the rice supplies in october, 8th 2015, then signed by randugarut gbb officers (nurul huda, hening saptiwi, dwi rizki sukma), agreed that hosdianto (the head of randugarut gbb), stock opname team (ramelan m, nurjuliansayah rachman, and suudi mutim), and known by musazdlin said as the regional vice chief, which in the reality, examination of rice supplies on that date was not be done entirely, but only with counting the length times width times height (locked 5) where it was locked 5 because the rice was arranged, there was an intervention from hosdianto and budiawan hendratno. so that when it is studied based on section 55, nurul huda could be categorized into the criminal offence. but, we need to know that section 55 explains about what the participated person (medepleger) is, according to r. soesilo, “contributing” in “doing together” is unless there are 2 persons who doing ( pleger) and http://creativecommons.org/licenses/by-nc-sa/4.0/ 288 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia contributing (medepleger) into the criminal offense (ulfa, din, & dahlan, 2017). whereas, is that case, both of them was doing the criminal deed. it is forbidden if someone’s only doing the preparation, or only helping, because those who help is not belong to the medepleger, but they belong to “the helper” (medeplichtige) in section 56 criminal code. so that the prosecution attorney who prosecute nurul huda as the sole perpetrator that fulfill section 55 could not be done. it remains that inside the section 55, there must be two persons who do pleger and also do medepleger. nurul huda in doing the criminal corruption case which caused the loss of state deprivation reach rp. 5.017.309.194,40 (five billion, seventeen million, three hundred and nine thousand, a hundred and ninety four comma forty rupiahs) did not do it himself, but he did that together with his bosses, hosdianto and budiawan handratno. therefore, supreme court cassation which made nurul huda as the sole perpetrator, absolutely did not give a sense of justice for nurul huda. because, according to mahfud md, reflection of justice in the main element, the fundamental and the most abstract because it is a concept of justice, it contains protection of rights, equality in the law position, also principals of proportionality to individual interests, social and state interests (mahfud md, 2009). because nurul huda has his rights, which are protection of rights, equality in the law position, and principals of proportionality to his interests, so when the responsibility of the loss of state deprivation in gbb corruption case just imposed to him, it will injure the sense of justice which he got. judicial system for corruption cases in indonesia the justice system in indonesia is inseparable from the existing legal system in this country, because only the law is able to regulate that the justice system follows which direction it adheres to the law enforcement process. based on the opinion of bachsan mustafa (2003: 5-6) states that "the system as a type of unit that is built with the components of the system that is related mechanically functional to one another to achieve goals, the legal system consists of components of the soul of the nation, structural components, components of substance, and components of legal culture ". the indonesian judicial system can be interpreted as an orderly and interrelated arrangement relating to the examination and termination activities of a court, whether it is a court within the general courts, religious courts, military courts, or state administrative courts, based on by the views, theories, and principles in the field of justice prevailing in indonesia. according to eric l. richard in suherman (2004) argues that "the justice system in each country is influenced by the legal system adopted by the state, the main legal system in the world (the world's major legal systems) can be divided into: civil law; common law; islamic law; socialist law; sub-saharan africa; and far http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 289 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia east". in general, it can be said that the institutional configuration of 'judging' functions in this day and age is indeed undergoing very dynamic changes and developments. "our justice system in indonesia is undergoing a process of structural differentiation, decentralization, deconcentration, and even institutional deconstruction that is very widespread" (asshiddiqie, 2013: 2). the dynamics of such structural developments may not be immediately well organized and stable in the near future, because new ideas about special justice continue to develop among experts and legal observers through various mass media. the task burden of judicial institutions in the conventional sense today can be said to be experiencing solid functional development, so there is an awareness of the importance of reorganizing judicial functions by separating or carrying out decentralization or deconcentration by establishing a dispute resolution mechanism outside the court (out of court settlement). with this mechanism in place, the legal settlement process is not always idealized to be completed in and through the court (in-court settlement) but can also be completed through out of court settlement. therefore, the legal and judicial system is considered important to be equi pped with mediation procedures, arbitration, and even peace judges (asshiddiqie, 2013: 1-2). "simply put, the judicial process in indonesia can be grouped into three stages, namely the preliminary stage, the determination and implementation of decisions" (santoso, 2011: 37). looking at the judicial process in indonesia, there are several points that must be supervised, namely in the process of executing decisions by the court, because therein lies the authority of a law enforcer in the enforcement of the judicial process in indonesia, if it can be guarded and taken seriously for several years. going forward will be a clean and authoritative court in this country. the ideal norm system, both in the field of law and ethics, in contemporary life is developing very complex, and deviations against it can no longer be handled and corrected only by a centralized justice system and concentrated in one institutional system. in fact, the dispute settlement functions that were initially considered sufficient to be resolved by the judiciary are considered to be inadequate, resulting in ideas about 'out of court settlement' in addition to the usual 'in-court settlement' mechanism (asshiddiqie, 2013: 13). the function of the judiciary in resolving disputes in accordance with justice is highly expected by the public for the creation of legal certainty in this country, for this reason the judiciary is expected to exist in upholding the law. the role of corruption court judges one of the problems that will always be faced by judges is how they can make a good court decision so that it can meet the legal values and a sense of community justice. theoretically, it is realized that court decisions are not mere legal products, at a http://creativecommons.org/licenses/by-nc-sa/4.0/ 290 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia certain level court decisions that "amputate" the norms of colonial heritage can be more important than the laws and regulations. therefore, if there are legislation or political policies that are discriminatory and hinder the welfare of the people, the court as the organizer of an independent and independent judicial authority must have the courage to override or invalidate the rule of law and prioritize the welfare of the community in order to achieve the goals of the government of the republic of indonesia, to improve the function and role of court decisions in order to balance the function and role of laws and regulations in realizing the welfare of the people, the guarantee of the independence and independence of judges to determine the mindset and attitude of actions in the construction of a court decision is very important. a judge must have a role colored by three conditions, namely: a. resilient, resilient in dealing with circumstances and mentally strong. b. skilled, it means knowing and mastering all existing and still applicable laws and regulations. c. responsive, meaning that the completion of the case inspection must be done quickly, correctly, and adjust to the wishes of the community (supriadi, 2008: 118) . the basic principle that must be owned by a judge in order to carry out the duties of judicial power as well as possible. with the provision of a dissenting opinion mechanism in a court decision regulated in law number 4 of 2004 concerning judicial power, law number 5 of 2004 concerning amendments to law number 14 of 1985 concerning the supreme court, and supreme court regulations republic of indonesia number 2 of 2000 concerning the improvement of supreme court regulations number 3 of 1999 concerning ad hoc judges, this is a progressive step in the implementation of judicial power in indonesia where the sovereignty of judges in a court decision that was once collective and closed is now individualized and open to increase transparency and professionalism in the implementation of judicial power in indonesia. differences of opinion are a necessity and are human in nature, so differences in mindset and attitudes of members of the panel of judges in constructing a court decision are also conditio sine qua non. the role of corruption court judges is actually already contained in the act, so every act carried out by a judge is regulated in the act. article 10 of law number 46 of 2009 provides the understanding that "in examining, adjudicating and adjudicating cases of corruption, the corruption court, high court and supreme court consist of career and ad hoc judges". judges and their obligations as implied in article 5 paragraph (1) of law number 48 of 2009 are as' sense of justice of the people ". judges as law enforcement and justice explore, follow and understand the legal values that live in this means that to carry out this role, the judge must jump into the community to recognize, feel and be able to explore the feelings of law and a sense of justice that lives in the community, thus the judge can make decisions in accordance with the law and sense of justice of the community. the task of judges is not only as law enforcers on cases in court or 'agents of conflict', but it should also include finding and reforming the law. the ideal judge, besides having high intelligence, must also have a sensitivity to values the value of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 291 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia justice, being able to integrate positive law into religious values, decency, manners and customs that live in society through every decision he makes, because in essence, a judge's crown is not on his head, but on the weight or quality of the resulting decision the implementation of the judge's role as a major component of the judiciary, as well as being a strategic and central part of the judicial authority, besides contributing in carrying out its institutional mission, is also a contributor in the process of public service in upholding law, justice and truth. others, will also have real implications for meeting responsibilities the institutional responsibility of the judicial authority, the more quality the decisions it produces, the role of the judiciary will be increasingly felt the contribution and benefits for society, nation and state. in article 11 of law no. 48 of 2009 concerning judicial power stated: a. the court examines, hears, and decides cases with a composition of at least 3 (three) judges, unless the law stipulates otherwise. b. the composition of judges as referred to in paragraph (1) consists of a presiding judge and two member judges. (article 11 paragraph (1) and (2) of law no. 48 of 2009) in conducting the judicial process of cases of corruption in the corruption court, the examination of the case is carried out by a panel of judges totaling 5 (five) people consisting of 2 (two) district court judges and 3 (three) ad hoc judges. with 3 (three) ad hoc judges in the corruption court panel of judges, this shows that there is a political will from the government to increase public participation (parties outside the court) in the judicial process of corruption cases. increasing community participation (parties outside the court) in the judicial process of cases of corruption is aimed at balancing the mindset and attitude of career judges who are generally assumed to have been "controlled" by positivistic paradigms in examining, judging and deciding a case for conducting justice to uphold law and justice. the positivistic paradigm generally gives birth to the flow of legism, where judges are only seen as "trumpets of the act" (bouchede la loi) so that judges are strictly prohibited from making decisions other than based on the law. the flow of legism has mastered the mindset and attitude of the majority of judges in indonesia even since the days of the dutch east indies. even though there are only a handful of judges who are "brave" out of the mainstream of the flow of legism who master the mindset and attitude of the majority of judges in indonesia in constructing a court decision. conclusion in the randugarut gbb corruption case which caused the loss of state deprivation reach rp. 5.017.309.194,40 (five billion, seventeen million, three hundred and nine thousand, a hundred and ninety four, comma forty rupiahs), there should be some parties who contributed in that criminal corruption. but, in the reality, it just nurul huda who was a clerk or weight agent, who became the sole perpetrator in that case, so that he must endure the responsibility 5 (five) years in confinement, and the fine increased to rp 200.000.000,(two hundred million rupiahs), subsidiary 6 (six) months in confinement, and paid punitive money for state deprivation reach rp. http://creativecommons.org/licenses/by-nc-sa/4.0/ 292 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 739.667.000 (seven hundred and thirty nine million, six hundred and sixty seven thousand rupiahs) subsidiary 2 (two) years in confinement. if we look further the deed of corruption case which was done by nurul huda as the order from hosdianto anf budiawan hendratno as the head of randugarut gbb warehouse which caused a big lack of supplies reached 697 tons. it also had been proved in the judgment. but, why hosdianto and budiawan hendratno had never been examined as a suspect, and it only took nurul huda as the sole perpetrator. the other contrast was in a applying section 55 criminal code, but the fact was still the sole perpetrator. in the section 55 explains about what the participated person (medepleger) is, according to r. soesilo, “contributing” in “doing together” is unless there are 2 persons who doing (pleger) and contributing (medepleger) into the criminal offense. here, both of them was doing the criminal deed. it is forbidden if someone’s only doing the preparation, or only helping, because those who help is not belong to the medepleger, but they belong to “the helper” (medeplichtige) in section 56 criminal code. so that the prosecution attorney who prosecute nurul huda as the sole perpetrator that fulfill section 55 criminal code could not be considered illegitimate because at least there are two persons who did and contributed. in that case, there should be other suspect who were appointed and examined, so that the loss of state deprivation not only be imposed to nurul huda, but also to the other suspects who were considered had a bigger role and gained bigger benefit in randugarut gbb corruption case. from this paper, it is suggested that law enforcement officers, especially the attorney, do not convict the suspect easily, if the evidence is not complete and cannot fulfill the sense of justice yet. law enforcement officers, especially the attorney do not sacrifice a suspect who is a marginal parties without including the main functionaries. the main goal of law enforcement is to create sense of justice, certainty of the law, and expediency in society. so that in the handling process must reflect the aspects of certainty and order of law. law enforcement officers should be a accustomed the concept of ultimum remedium, which is the one of principle found in indonesian criminal law. therefore, the criminal law must be the last effort in the law enforcement. it means when a case could be done in another way, such as kinship, negotiation, mediation, court of justice, 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(2017). peraturan direksi perum bulog, nomor: pd19/do100/06/2017 tanggal 16 juni 2017, tentang manajemen pergudangan di lingkungan perum bulog. republic of indonesia. (1999). republic of indonesia law no. 31/1999 concerning eradication of corruption, as amended and supplemented with ri law no. 20/2001 concerning amendments to ri law no. 31/1999 concerning eradication of corruption, undang-undang ri nomor 31 tahun 1999 tentang pemberantasan tindak pidana korupsi, sebagaimana telah diubah dan ditambah dengan uu ri nomor 20 tahun 2001 tentang perubahan atas uu ri nomor 31 tahun 1999 tentang pemberantasan tindak pidana korupsi. semarang district court's decision, case number: 102/pid-sus-tpk/2017/pn-smg, march 19, 2018, concerning the decision on the first level case on the defendant's name nurul huda, putusan pengadilan negeri semarang, nomor perkara: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 295 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 102/pid-sus-tpk/2017/pn-smg, tanggal 19 maret 2018, tentang putusan tingkat pertama perkara atas nama terdakwa nurul huda. sukmawati, s. (2016). turut serta melakukan perbuatan pidana menurut kitab undang-undanghukum pidana dan hukum islam (studi perbandingan). bachelor thesis criminal and constitutional law department, uin alaudin makassar. retrieved from http://repositori.uin-alauddin.ac.id/6001/ ulfa, l., din, m., & dahlan, d. (2017). penerapan ajaran turut serta kasus korupsi dikaitkan teori pertanggungjawaban pidana. kanun jurnal hukum, 19(2), 285304. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://repositori.uin-alauddin.ac.id/6001/ 296 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 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 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 493 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article the prohibition of sampir marriage in the perspective of maslahah mursalah nurwakhid agung kurniawan postgraduate program, faculty of law, universitas negeri semarang, indonesia  nurwakhidagungkurniawan@gmail.com cited as kurniawan, n.a. (2020). the prohibition of sampir marriage in the perspective of maslahah mursalah. journal of law and legal reform, 1(3), 493-506. doi: https://doi.org/10.15294/jllr.v1i3.36702 abstract sampir marriages are marriages between men and women separated from the road, these marriages are prohibited according to the adat community of kenteng village, toroh district, grobogan regency. this study aims to, first, describe the prohibition of "sampir" marriage from the perspective of "maslahah mursalah", second, develop knowledge in terms of indonesian marriage law, third, provide understanding to the village community in the village regarding the "prohibition of marriage of the sampir" perspective "maslahah mursalah". this research is an empirical study, or it can also be called field research that examines the tradition of prohibiting marriage in kenteng village, toroh sub-district, grobogan regency. this research includes empirical research. data collection by observation, interview, and documentation. the author uses a qualitative method of deductive thinking in analyzing this problem, namely the process of approach that departs from general truth about a phenomenon or theory and generates that truth on an event that is characterized by the same phenomenon concerned. overview of islamic law on the tradition of prohibiting marriages of sampir in kenteng village, toroh sub-district, grobogan regency, through the maṣlaḥah approach, it is a mistake that the tradition contains an element of shirk because the community believes that sampir marriage will bring disaster to the perpetrators, the community always associates the disaster that befell the marriages of the sampir perpetrators. mate sampir. keywords: maṣlaḥah mursalah; prohibition of sampir marriage; tradition journal of law and legal reform (2020), 1(3), pp. 493-506. doi: https://doi.org/10.15294/jllr.v1i3.36702. issn (print) 2715-0941, issn (online) 2715-0968 submitted: 28 september 2019, revised: 25 january 2020, accepted: 11 march 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:saiful1501anwar@gmail.com https://doi.org/10.15294/jllr.v1i3.36702 https://doi.org/10.15294/jllr.v1i3.36702 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 494 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 493 table of contents ………………………………………………………….. 494 introduction …………………………………………………………………. 494 method …………………………………………………………………………… 495 factors encouraging the prohibition of sampir marriage in kenteng village, toroh, grobogan ………….... 495 review of maslahah mursalah against the prohibition of sampir marriage in kenteng ……………………………………… 498 conclusion …………………………………………………………………….. 504 references ……………………………………………………………………... 505 introduction islam views that humans and all creatures in the universe are the creation of allah swt humans are created by god complete with partners who instinctively have an interest in the opposite sex. to realize this attraction into a true relationship, one must go through marriage (masudah 2010). hindu-buddhist teachings are still embedded in javanese culture and some people still believe in the traditions or cultural systems of traditional societies. people who break the tradition, it means leaving the existing systems. after the religion of islam came, then the principle of their law was replaced by rules or texts based on the qur’an and the sunnah (isro’i 2012). the village of kenteng has many traditions that are inherited from ancestors which are still preserved. for example, marital problems, many things must be met when they want to do marriage, including avoiding a marriage that has become the trust of the people of kenteng village. the prohibition of marriage which is still believed by the people of kenteng village is a ban on marriage. a marriage is a marriage between a man and a woman whose house is separated by a road in an alley. such marriages are believed by the community to bring loggers/calamities to the perpetrators (suhardi 2018). the people of kenteng village say that tradition was inherited by the ancestors and the people still believe because there are many incidents that are not good after the marriages of the sampir (suhardi 2018). islam itself does not teach that islam considers that if someone gets a disaster because something is ṭiyarah (predicting bad http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 495 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia luck because of seeing something). the people of kenteng village are mostly just following the belief that the ban on marriage is based on information from parents, neighbors and closest people (sofwan 2018). mujiono (2018) as a community leader in kenteng village revealed that there is a value to the benefit behind the prohibition of marriage in sampir in kenteng, toroh, grobogan, although in islam there is no prohibition to marry marriage. he explained that the prohibition of marrying marriage meant that it was an effort to create a harmonious and happy family. based on the phenomenon and the reality of the tradition of prohibiting marriage in kenteng, the author is interested in conducting research on the belief in marriage ban with the title "the prohibition of sampir marriage in the perspective of maslahah mursalah. method this research is an empirical study, or it can also be called field research that examines the tradition of prohibiting marriage in kenteng village, toroh district, grobogan regency. in this study, the main data source used is information from the source (primary data), supplemented by secondary and tertiary data. data collection was carried out in three ways, namely observation, interviews and documentation. the author uses qualitative methods with deductive thinking in analyzing this problem, which is the process of approach that departs from general truth about a phenomenon or theory and generalizes that truth on a particular event or data that is characterized by the same phenomenon concerned (nasir 2016). factors encouraging the prohibition of sampir marriage in kenteng village, toroh, grobogan the ban on sampir marriage is a legacy from the javanese ancestors, especially in the kenteng village, wherein the kenteng village community the prohibition of marriage is seen as a myth that can lead to something undesirable if the prohibition is violated so that it becomes a sacred myth, meaning that the marriage ban becomes a necessity in the practice of one's life or even a group in the kenteng village community (sofwan 2018). http://creativecommons.org/licenses/by-nc-sa/4.0/ 496 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the reason for the prohibition of marriage is in the view of the people of kenteng village because the marriage is analogous to two people walking who will collide, turn away (reject) which makes them unable to unite, so they do not have the courage to do marriages. if this marriage is carried out it will incur disasters and misery for the bride and groom in the ark of life (yusuf 2019). regarding the impact of marriage, suhardi said: "usually if they get married, their household will not be harmonious, there are often problems (quarreling) that end in divorce, difficult fortune, one dies, or his parents die." according to muhamad sofwan as a figure kenteng village community, he said, "it is said of parents, due to the marriage of sampir many are not strong, meaning that if there is no ill divorce if no one will die later." regarding this ban, muhamad sofwan said that he himself was the perpetrators of the marriage mate and his wife was sick to death, but he did not believe that the disaster that happened to him was a result of the marriage of the mire. muhammad sofwan believes that the disaster that befell him was purely the will of god (suhardi 2018). the author also conducts an interview with "t" as the perpetrator of the marriage mate. the author asks "i'm sorry, if i may know what calamity has happened to you since you married a marriage? he answered, "divorced". previously the author asked "do you" t "believe that people who do marriages on the side will get a disaster? he answered, "yes, believe". mr "t" claimed to have a marital marriage because it was arranged by an older person and he did not want to fight the parents. "t" also claimed that before marriage he did not know about the ban. he knew the prohibition shortly after his divorce with his wife (personal interview, 2018). based on the results of the writer's interview with the people of kenteng village, there are at least 5 (five) sampir marriages that have been affected, but the writer can only interview 2 (two) people because the other actors do not want to be interviewed because they feel this is a disgrace, the 5 (five) people are "t" (divorced from his wife), muhamad sofwan (his wife died), "sahli" (divorced), harwati (divorced), yanto (parents died). according to yusuf (2018) that trusting the prohibition of marital marriage is permissible because it is an estimate/belief, but do not let these estimates be put forward to defeat his belief in god, he also stressed that the community is more committed to the koran and hadith as guidelines for human life. furthermore, he explained about believing in marrying sampir, "so old-fashioned parents did not allow or forbid married marriage. but prohibiting does not mean haram, (but) prohibiting (because) culture.” according to muhammad yusuf personally, the prohibition does not mean haram according to religion because islam implicitly does not regulate http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 497 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia prohibition of marriage to marriage, but the belief is haram in the adat community of kenteng village. he asserted as follows: if there is a problem with calamity, a child who does not get married will get a disaster, and those who marry will not get a disaster. the problem of the disaster had nothing to do with mating. because the calamity is a trial, the trial is the essence from god, the trial is included in the test of life. so, the ones who marry the sampir don't get any disaster, those who don't marry the sampir get lots of disasters too. because when a disaster happens, everyone gets a disaster, so not everyone gets a disaster. it's just that there has been a person who marries the sampir then gets a disaster, because what is known is the marriages of the sampir, not from god. talking about tradition or tradition is closely related to the daily life of the local community. observing the traditions of javanese people, that is, people who are wellknown for their traditions or hereditary habits is an effort that is closely related to the development of mental and spiritual fields to live their daily lives because the ancestors of the javanese always decrease the natural knowledge that they obtain to their children, grandchildren and his relatives. the natural knowledge gained by these ancestors eventually transformed into customs or habits that we often encounter in our daily lives (syaifudin 2017: 70-71). suhardi (2018) as the traditional leader of the kenteng village community said that the ban on sampir marriage in principle is an effort to create a harmonious family. like mr. suhardi, mujiono (2018) explained: (sampir marital trust) is indeed a hereditary belief. family people want to create a sakinah family, mawadah wa rahmah. with married marriage done, if there is a problem (between husband and wife), parents are worried that both parties will find out, and usually, the parents sometimes intervene and defend their children and it is feared that it will cause disunity/divorce due to the marriage of the sampir. because if a family whose house is close together, if there is a problem let alone their parents interfere with http://creativecommons.org/licenses/by-nc-sa/4.0/ 498 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia their affairs (husband and wife), then the problem is worried that it will even get bigger so that it carries on until the children and grandchildren and so on. social relationships that are built with individuals must be pleasant, peaceful, friendly and show unity and unity, in other words, the relationship must be characterized by a spirit of togetherness, harmony, harmony, calm and peace. such relationships are like an ideal relationship of friendship or family without disputes and disputes. the spirit of life that unites in purpose while instilling a sense of caring, mutual help, and mutual cooperation. this is a communal life imbued with the spirit of the javanese people that embodies refinement, cooperation, mutual acceptance, non-discrimination and willingness to compromise (syaifudin 2017: 74). based on these data, the authors draw conclusions about the factors prohibiting sampir marriage in kenteng village as follows: a) the community still believes that the marriage of sampir can bring disaster to the perpetrators. b) the community considers that if the perpetrators of mating have a disaster, the disaster is directly linked to the act of marrying the mates. c) there are witnesses and perpetrators of mating sampir who directly know the calamity that befell the perpetrators of mating sampir. d) the spread of the tradition of prohibiting marital marriage is hereditary. e) lack of public knowledge about religious knowledge, especially related to the myth of the traditional belief in prohibiting marriage. f) the public's perception that there is a value of the benefit in the tradition of prohibiting marriage. review of maslahah mursalah against the prohibition of sampir marriage in kenteng marriage is a method chosen by allah swt as a way for his creatures to multiply and preserve their lives. according to law no. 1 of 1974 marriage is an inner and outer bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on the godhead of the almighty (aulia 2011: 76; putri & arifin 2019; muntamah, latifiani, & arifin 2019). when viewed from http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 499 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia its purpose, marriage is an important event in the history of human life, marriage will unite men and women who previously had no ties to become a sakinah, mawadah and rahmah family (aulia 2011; muntamah, latifiani, & arifin 2019). in javanese tradition marriage is a sacred event, therefore the consideration of accepting a prospective son-in-law must not be arbitrary and must be based on seeds, quality, and weight (isro’i 2012: 21-22). referring to some of the notes above, when the tradition of prohibiting marriage of marriage is viewed from an islamic perspective, the authors quote the following theories and rules: ى اْلَعَدةَ .َما تَ َعاَرَفُه النَّاُس َوُأَساُرْوا َعَلْيِه ِمْن قَ ْوٍل اَْو تَ ْرٍك َوُيَسمَّ something that has been known to humans and they make it as a tradition, both in the form of words, actions or attitudes leaving the urf is also called customs (waid 2014: 150). based on the theory and rules above, it can be said that the prohibition of marriage is a custom or tradition that has benefits in it, this is indicated by several things, namely: 1) the ban on sampir marriage has been trusted, practiced, happened repeatedly, maintained by the people of kenteng village continuously, if the act is only done once, then the act fails to be predicated as a tradition. 2) the prohibition of marrying sampir has been known by the people of desa kenteng and most people practice this practice. 3) the prohibition of marriage in marriage prevents ongoing problems in social life. this is due to problems that arise in the household because the houses of both parties are very close together so that it allows the parents to interfere who tend to defend their respective children. it is feared that this problem will make it even greater until divorce arises and the problem is carried from generation to generation until the children and grandchildren so that bad relationships arise in social life. 4) the ban on sampir marriage is an effort to form a peaceful, pleasant, friendly life and show unity and unity, in other words, this prohibition is to create community relations with a spirit of togetherness, harmony, harmony, calm and peace. this is a communal life imbued with the spirit of the javanese people that embodies refinement, cooperation, mutual acceptance, nondiscrimination and willingness to compromise. http://creativecommons.org/licenses/by-nc-sa/4.0/ 500 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia when viewed in terms of quality and benefit, the ban on sampir marriage is included in the maṣlaḥah al-ururiyyah, the meaning of maṣlaṣah al-ḍaruriyyah is the benefit associated with the basic needs of mankind in the world and the hereafter. the ban on sampir marriage is included in this scope because the ban on sampir marriage is in the form of provisions relating to basic human needs (principle) to carry out life and care for offspring, therefore this prohibition cannot be categorized as maṣlaḥah alḥajiyah (benefit in the form of relief to maintain and maintain basic human needs, such as cooperation in agriculture, etc.) and maṣlaḥah al-taḥsiniyyah (benefits in the form of freedom that can complement previous benefits such as eating nutritious food, dressing well, etc.) (zahrah 2005: 424). maslahat in the maslahah dharuriyyah islamiyyah refers to the five preservation of maintaining religion, soul, intellect and descent, wealth (ilyas 2014). 1. maintaining religion islamic sharia was revealed in order to maintain the maqasyid al-khamsah / kulliyah al-khamsah. religion is the most important level of the maqasyid, because religion is the spirit, the others are only branches. branches will not be able to stand, except by preserving religion. there are three important points relating to the maintenance of this religion, first, that religion is fitrah, then man must have religion whether his religion is right or wrong, if he comes out of his fitrah, then there will be anomalies and deviations, but what is meant by religion here is religion correct. second, concerning the maintenance of religious media. preserving religion is the most important maqasyid and it is not possible that this great intention is wasted, turned around and changed, because if it is so, then other intentions are wasted. this is the same as a society that has no leader (ilyas 2014: 18). the maintenance of religion in its application to ḍaruriyyah can be exemplified in the following cases: the commandment of man by allah swt to perform prayers and perform zakat and various other religious orders aimed at the benefit. vice versa relating to the prevention of things that can lead to its absence, such as the order to do jihad, and the determination of the punishment for apostates, because this will be able to come to the interpretation of the existence of religion. (dar'ul mafasid) (ilyas 2014: 18). 2. nurturing the soul islamic sharia is very concerned with preserving the soul, then between the law stipulates it as an important benefit and rejects the things that are mafsadat, because if the life is wasted, the believer disappears, and in turn http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 501 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia disappear will lead to the loss of religion, what is meant by the soul here is the soul maintained, as for other souls such as the lives of people who are fought, then he is not a soul maintained by the shari'a, because he is an enemy of islam (ilyas 2014: 19). the scholars agreed to say that the purpose of the shari'a was revealed by allah to preserve the human soul. they gave an example of the rules of shari'a that were revealed by allah with regard to this matter, namely: in the manner of killing without justified reasons of the shari'a, the obligation of qishas to be punished accordingly, prohibited from committing suicide, may not kill children for fear of poverty and many others. all of that is in order to preserve the soul and ensure the continuity of human life and it is related to maṣlaḥah ḍaruriyyah (ilyas 2014). 3. maintain reason the purpose of maintaining the mind is to keep the mind from being damaged, which results in the mukallaf not having any use in society, even becoming a source of disaster. imam syatibi gave an example of preserving reason by prohibiting humans from drinking khamar. because khamar can damage the mind, and in turn can damage the others, including damaging religion. it can be believed that people whose minds are broken open wide opportunities to commit crimes and damage all the strata of the benefits that exist, both dharuri, pilgrimage, tahsini, and mukammilat. for the preservation of reason from damage, it can be done by guaranteeing freedom of thought, study, and so on (ilyas 2014). 4. heredity / honor abdul wahhab khallaf states that caring for offspring is a basic necessity for human benefit. caring for offspring is a form of caring for human sustainability and fostering the mentality of generations to create a sense of friendship and unity among humans. to realize that purpose, a properly organized marriage institution is needed, as well as preventing acts that damage oneself and offspring, such as adultery and so on (ilyas 2014). 5. maintaining assets maintenance of assets is done by preventing acts that tarnish property, such as theft, robbery and many other crimes against other assets, and must also be maintained by distributing them properly and properly for the sustainability of the assets, so humans are instructed to try and work in accordance with the power they have (ilyas 2014). http://creativecommons.org/licenses/by-nc-sa/4.0/ 502 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia when viewed from the level of the order of the dharurat, the tradition of prohibiting marriages from marriage occupies the preservation of offspring ( النسل :related to this matter, it needs to be seen that ,(حفض a. the people of kenteng village still believe that it is related to the myth of the prohibition of marriage to marriage, so it is clearly forbidden for the law to believe that there is a power other than god so that it is polytheistic (sofwan). b. islam does not forbid to marry sampir but the custom of the people of kenteng village forbids to marry sampir, therefore it is clear that the custom is contrary to islamic law by restricting humans to get married. c. it is possible to believe that there is a benefit in the tradition of prohibiting marriages of sampir that is to realize a happy life, but this benefit is contrary to the main principle in maqasyid as-sharia which is to maintain religion that islam does not forbid married marriage, so that reason must be set aside because maintaining religion must be prioritized rather than raising offspring. d. community beliefs about the tradition of prohibiting marriage of marriage are preserved if it is preserved so that this belief will live continuously so that there is a bad view among the people of kenteng. e. the people of kenteng village are also not allowed to associate the calamity that befell the marriages of the sampir as a result of the behavior of the sampir marriages, because everyone must experience unlimited calamity whether he is a practicing mating or not. based on this the authors quote the rules of fiqhiyah as follows: درء املفاسد مقدم على جلب املصاحل "refusing mafsadah takes precedence over reaching maṣlaḥah (jazuli 2017: 29)." based on these rules when maslahat and mafsadat face each other, it is generally preferred to reject the mafsadat because sharia's attention to guarding the prohibition is higher than keeping the commandments. when viewed in terms of the benefits and interpretations of the tradition of prohibiting marriages of marriage, then this trust must be set aside by having to always hold fast to the koran and the hadith because the accident came purely because of god's will not because of the act of marrying marriage, besides believing that the perpetrators of marriage sampir will get a disaster including tiyarah and that includes something that is forbidden (ihsan 2004: 87). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 503 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the benefit in the tradition of prohibiting marriage of sampir is hereby ruled out because the majority of the community still believes in the tradition of prohibiting marriage of sampir with all the consequences arising and the tradition of prohibiting marriage of the sampir occupies the level of raising offspring (ḥifḍ al-nasl). contrary to the principle of safeguarding religion (ḥif-al-din), because the concept of prohibiting marital marriage is contrary to the concept of shari'a that already exists in islam at the level of ḍaruriyyah khomsah, therefore preserving religion by practicing religion in accordance with the koran hadith statement that islam does not forbid people to marry sampir and there is an element of shirk in the tradition, it must be prioritized rather than guarding offspring. if the benefit referred to by some of the people of kenteng village in the tradition of prohibiting marital marriage is in the context of forming a harmonious family, then this is canceled because it does not meet the requirements to be categorized in the problematic problem, this is because: 1) this benefit is only a tradition in the village of kenteng, while in other regions it is not certain to experience the same thing. khallaf in his book said that the benefit is general, not personal. its purpose is to prove that the formation of law in a case can bring benefits to the majority of humanity or reject danger from them and not for the benefit of individuals or some people. the law should not be prescribed to realize special benefits for the authorities or authorities and turn the attention and benefit of the majority of the people, in other words, all benefits must benefit humanity (khallaf 2002: 144). 2) the benefit is contrary to the text. al-quran and as-sunnah there is not a single verse or hadith that prohibits mating marriage. abdul wahhab khallaf said that the formation of law based on benefit does not conflict with laws or principles based on the text or ijma'. therefore, it is not right to recognize benefits that demand equality between men and women in the inheritance section, because such benefits are invalid because they contradict the qur'anic text, therefore the benefits contained in the prohibition of marriages of sampir are munasib al-mulga (which was canceled) because the syarak indicated the nullification of the confession (khallaf 2002: 144-145). http://creativecommons.org/licenses/by-nc-sa/4.0/ 504 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conclusion based on the presentation of the results of the research and analysis of the previous chapter, the author can conclude the following: 1. factors that encourage the prohibition of marriage in sampeng are as follows: a. the community still believes that the marriage of sampir can bring disaster to the perpetrators. b. the community considers that if the perpetrators of mating have a disaster, the disaster is directly linked to the act of marrying the mates. c. there are witnesses and perpetrators of mating sampir who directly know the calamity that befell the perpetrators of mating sampir. d. the spread of the tradition of prohibiting marital marriage is hereditary. e. lack of public knowledge about religious knowledge, especially related to the myth of the traditional belief in prohibiting marriage. f. the public's perception that there is a value of the benefit in the tradition of prohibiting marriage. 2. the review of islamic law with the problem of the ma'laḥah approach to the tradition of prohibiting marital marriage in kenteng village gives the view that the community must leave the tradition because it is contrary to uriaruriyyah that must be prioritized, namely yakniifḍ al-din in the uriaruriyyah al khamsah level. this is based on islamic legal rule درء املفاسد مقدم على جلب املصاحل the above rule explains that rejecting mafsadah takes precedence overachieving benefit. 3. the benefits contained in the tradition of prohibiting marriages in the village of kenteng do not meet the requirements for inclusion in the category of maslahah mursalah, but in the category of al-mulga maṣlaḥah (which is canceled) because this benefit is the benefit of a group of people not all of humanity and this benefit contradicts by the passage of the koran. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 505 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references aulia, a. (2011). compilation of islamic law. bandung: cv. nuance aulia. aulia, a. (2011). law number 1 of 1974 concerning marriage. bandung: cv. nuance aulia. ihsan, a.g. (2004). rules of islamic law. semarang: sujiantoko basscom multimedia grafika. ilyas, i. (2014). stratification of maqashid al-shari'ah towards goodness and its application. journal of islamic law, 14(1), 74-86. isro’i, m. (2012). prohibition of marriage in muharram month in javanese traditional perspective of islamic law (case study in bangkok village, karanggede district, boyolali regency). thesis, salatiga: stain salatiga. jazuli, a. (2017). the principles of jurisprudence: the rules of islamic law in resolving practical problems. jakarta: kencana. khallaf, a.w. (2002), usulul fiqh science, trans. noer iskandar al-bansany, rules of islamic law. jakarta: pt. raja grafindo persada. masudah, r. (2010). the phenomenon of marriage obstacles in the trenggalek indigenous community. law and sharia journal, 1(1), 33-50. muntamah, a.l., latifiani, d., & arifin, r. (2019). pernikahan dini di indonesia: faktor dan peran pemerintah (perspektif penegakan dan perlindungan hukum bagi anak). widya yuridika 2 (1), 1-12. doi: https://doi.org/10.31328/wy.v2i1.823 nasir, k. (2016). myth phenomenon of marriage prohibitions in jetis village and rogomulyo village, kaliwungu district, semarang regency in the perspective of islamic law. thesis, salatiga: iain salatiga. personal interview. (2018). with "t", perpetrators of mating, december 11, 2018. personal interview. (2018). interview with hardi, traditional leader of kenteng village, 12 december 2018. personal interview. (2018). interview with muhammad mujiono, a religious figure in kenteng village, 12 december 2018. personal interview. (2018). interview with muhammad sofwan, head of kenteng village, 12 december 2018. personal interview. (2018). interview with muhammad yusuf, a religious figure in the village of kenteng, 12 december 2019. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.31328/wy.v2i1.823 506 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia putri, m.d.s., & arifin, r. (2019). pengaruh adat dalam hukum keluarga terhadap pembaruan hukum nasional. volksgeist: jurnal ilmu hukum dan konstitusi 2 (1), 7387. doi: 10.24090/volksgeist.v2i1.2491 syaifudin, z.a. (2017). customary marriage prohibition in urf perspective suro month (case study of wonorejo village, poncokusumo district, malang regency). thesis, malang: uin maulana malik ibrahim. waid, a. (2014). collection of usul fiqh rules. yogyakarta: ircisod. zahrah, m.a. (2005). usul al-fiqh, trans. saefullah ma’shum, et al., usul fiqih. jakarta: pustaka firdaus. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 51 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article how nigeria deals with environmental damages? an environmental legal perspective sylvanus abila faculty of law, niger delta university bayelsa state, nigeria  drabilasylvanus@gmail.com cited as abila, s. (2021). how nigeria deals with environmental damages? an environmental legal perspective. journal of law and legal reform, 2(1), 51-64. https://doi.org/10.15294/jllr.v2i1.39041 abstract the paper carries out a review of the environmental problems associated with atmospheric pollution, air quality emissions and applicable control mechanisms in the detection and evaluation in the niger delta region of nigeria in the light of global trends and best practices given the magnitude of gas flaring taking place in nigeria’s niger delta daily. this is flowing from the findings that gas flaring continues to be a major health hazard to humanity, domestic and global environment. also considered are the challenges facing air quality and carbon management in nigeria and the place of the ongoing national space research and development agency (nasrda) funded research on air quality and carbon management and the recent release of the twin regulations of: the flare gas (prevention of waste and pollution) regulations, 2018 and the nigerian gas flare commercialization programme (ngfcp) by the federal government of nigeria aimed at stopping gas flares in the year, 2020. the paper adopts an admixture of the historical, comparative, the law and development and empirical approaches in appropriate cases. keywords: reappraisal; environmental problems; applicable control mechanisms, detection, evaluation; the flare gas (prevention of waste and pollution) regulations journal of law and legal reform (2021), 2(1), pp. 51-64. doi: https://doi.org/10.15294/jllr.v2i1.39041 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 15 june 2020, revised: 10 september 2020, accepted: 11 november 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i1.39041 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 52 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 51 table of contents ……………………………..…...…………………..….. 52 background …………………………………………………………………… 52 introduction ………………………………….……………...………………. 52 environmental problems of the niger delta region of nigeria arising from oil/gas operations ..…………….……..... 54 international protection against air pollution …………. 57 i. customary law ………………………………………………..………… 58 ii. treaties …………………………...………………………………………… 58 emerging recent developments …………………………………….. 59 conclusion …………………………………………………..………………… 60 references …………………………………………………………………...… 61 background according to the united nations environmental programme of ogoni land, “nigeria is one of africa’s largest countries and it’s most populous [and] situated in west africa. the country covers an area of 923,768 km2, with an estimated 4,049 km of land boundaries, shared with cameroon in the east, the republic of niger in the north, chad in the north-east and benin in the west. in the south, nigeria’s 853-km long coastline opens onto the atlantic ocean. the southern lowlands merge into the central hills and plateaus, with mountains in the south-east and plains in the north. the country’s largest river is the niger, which joins with the benue river to form a confluence at lokoja. the niger delta, located in the southernmost part of nigeria and covering an area of some 70,000 km2, is the largest river delta in africa and the third largest in the world…. from a coastal belt of swamps, stretching northwards the land becomes a continuous rainforest which gradually merges with woodland and savanna grasslands in central nigeria. the swamp, forest and woodland areas occupy about 12 per cent of the delta’s land surface” (unep 2011; undp 2006; moffat & linden 1995; erml 1997; abam 2001). introduction it is no longer news that gas flaring and other sources if air pollution constitute a veritable hazards on human beings, plants and wildlife as same cause acid rain which acidifies the lakes, streams, damages, crops and vegetation. atmospheric pollution have also being discovered to reduce farm yields, harms human health, lives and livelihood; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 53 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia increases the risk of respiratory illnesses, asthma and cancer and often causes chronic bronchitis, decrease lung function, blindness, impotency, miscarriages and premature deaths. gas flares have also being established to impoverished entire human populations (abila, 2018). a proper starting point in attempting to define the term ‘pollution’ is to consider a definition offered by the european union 1996 council directive on integrated pollution prevention and control (ippc) which defined concept as: “the direct or indirect introduction as a result of human activity, of substances, vibrations, heat or noise into the air, water or land which may be harmful to human health or the quality of the environment, result in damage to material property, or impair or interfere with amenities and other legitimate uses of the environment” (ippc, 1996). there is no gainsaying the fact that both organic, inorganic and other air pollutants have been established to bring about injurious healthiness and ecological impacts ranging from untimely demises, breathing disorders. recent scientific findings clearly show that deaths caused by air pollution around the globe has risen to an estimate of about 2 million persons yearly (who, 2002). several other negative impacts of air pollution include loss of plant and animal life, soil and water toxicities. it is worrisome that, in modern day nigeria studies on air quality valuation studies appear concentrated almost exclusively in cities in nigeria (probably because of the fact that it is in the cities that manufacturing processes, domestic undertakings, road traffic overcrowding etc., form major causes of air pollution (taiwo, 2005; ajao & anurigwo, 2002; baumbach, vogt, hein, oluwole, ogunsola, olanivi, & akeredolu, 1995) and not in the rural areas where majority of the citizens of nigeria are concentrated. additionally, majority of the said studies have been undertaken independently and so bereft of any systematic measurements of air quality by the federal government of nigeria or any of its agencies (taiwo, 2005). it has been demonstrated through several evaluations conducted on manufacturing estates, selected landfill-sites and heavy stream of traffic locations in and around lagos, for example, showed that typical “concentrations of carbon monoxide (co) in heavy traffic stations was 49.32ppm, while at industrial estates showed 36.75ppm and at dumpsites, 10.76ppm. sulphur dioxide (so2) averages were 0.166ppm at the traffic stations, while 0.670ppm levels were detected at both industrial and dumpsites. the nox concentrations were 0.220ppm at the dumpsites and 0.333ppm at both industrial and traffic stations” (taiwo, 2005). it must be appreciated that the world health organization (who) ideals for co, so2 and nox are 5ppm for 8-hour regular, 0.45ppm for 24-hour regular and 0.25ppm for 24-hour regular correspondingly (world bank, 1995). the above results give the clear impression that air quality difficulties arising from waste dumping in nigeria, manufacturing and domestic operations and conveyance is prevalent. the same is true of the prevalence of gas flaring in nigeria http://creativecommons.org/licenses/by-nc-sa/4.0/ 54 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia (isuwa, 2008) it is a well-known fact, for example, that air pollution in relationship with oil and gas extraction occurs, in different ways, which include: blowouts, geothermal steam and gas flaring. different types of air pollution in relation to oil and gas extractions namely: blowout, geothermal steam along with other impacts of gas flaring and its impacts on the atmosphere in the niger delta region in nigeria, africa and the world as a whole are known and well documented (isuwa, 2008). blowouts refer to sudden and violent “escapes of gasses into the atmosphere”. such escapes occur when the pressure built around oil/gas wells become heavier than the wells’ hydrostatic weights (elsom, 1992; squillace, 1992; wild, 1996). the composition and character of the atmosphere is thereby altered to the detriment of the entire ecosystem including man. yet, blowout is a very common feature associated drilling daily in the niger delta region of nigeria (unep, 1992). on the other hand geothermal steam refers to “the steam which is emitted into the atmosphere in the normal process of drilling. the steam so emitted consists of hydrogen sulphide, methane and ammonia. and on reaching the earth surface, the hydrogen sulphide is converted into sulphur dioxide with its attendant harmful effects on plants and animals including man. amonia is known to combine with other compounds in the atmosphere in bringing about acidic rain (unep, 1992). however, “shell petroleum development corporation (spdc) in its 2006 annual report stated that the oil industry submitted a proposal to the oil industry regulatory body, the department of petroleum resources (dpr) for air quality assessment in the niger delta only in 2006. this effort to assess air quality in the niger delta came after five decades of oil exploration, and gas flaring, in the region” (shell nigeria annual report, 2006). most of the ongoing gas flaring and atmospheric pollution in nigeria take place in the niger delta region of nigeria. it is without doubts that the niger delta is located in the southern part of nigeria. it is also a well-known fact that the region suffers from human and environmental issues of both national and international concern, in terms of the environmental pollution; impoverishment of the local people despite the wealth being generated from the region; security of human lives; property and infrastructure due to militancy; community agitations and youth unrest. this paper, however, gives a brief description of the niger delta environment and also highlights the major anthropogenic activities resulting in air pollution in the niger delta which include transportation, burning of fossil fuels for industrial and domestic use and waste disposal. environmental problems of the niger delta region of nigeria arising from oil/gas operations there exists a large literature from various intellectual divides on the negative impacts of oil pollution in the oil producing communities in the niger delta region in several http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 55 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ways (chijioke, onuoha, ebong, bassey & ufomba, 2018). “environmental problems of the niger delta region of nigeria arising from oil/gas operations have been graded to include: (a) socio-economic impacts which signposted by the destruction of traditional means of livelihood, the destruction of the ecosystem and biodiversity, the depletion of fish population. (b) physico-health impacts which include the health risks, the destruction of zinc roof, water pollution, (c) socio-culture impacts etc. (d) a replication of erosion, flood and climate change adversely which affect the environment and threatened an imminent collapse of the ecosystem. oil spillage that occurred daily in the niger delta region with the attendant problems causing the people to face severe suffering from the advent of oil exploration in the area till date are numerous (chijioke, onuoha, ebong, bassey & ufomba, 2018; abila, 2018a; abila, 2018b). suffice it to reiterate that some of the negative effect of activities of multinational oil companies include air pollution, soil pollution, soil degradation, health risk among others (abila, 2018). furthermore, the destruction of zinc roof, one of the increasing socio-economic costs to most oil producing communities resulting from oil pollution is the rapidity with which zinc roofs are easily corroded. houses with zinc roofs that are close to the locations of the flare stacks do not last for two years before they become corroded. this is different from other areas where zinc roofs last for at least ten years. this is a common trend that is also observed in other parts of the niger delta where oil extraction is presently taking place. zinc corrosion has added another dimension to the increasing socio-economic costs. it is a common knowledge that acid rain oxidizes zinc through the process of oxidation to form zinc oxides. this oxidation process is traced to be responsible for the corrosion. this has led homeowners to resort to purchase of the expensive asbestos with its obvious potential health hazards” (chijioke, onuoha, ebong, bassey & ufomba, 2018). air quality, emissions and applicable control mechanisms in their detection and evaluation although emissions of co2 and other greenhouse gases (ghgs) are recognized as contributing to climate change problem in nigeria (adeyinka, bankole, & olaye, 2005). however, an existing report indicates that the issue of air quality is not recognized as an environmental problem in nigeria. this is perhaps, because there are no consistent emissions inventory for the country. although there has been some independent research into air quality assessments in different part of nigeria has stated earlier above (baimbach, vogt, hein, oluwole, ogunsola, olaniyi, & akeredolu, 1995), it is submitted that, it is incumbent on regulatory authorities in nigeria to enforce existing laws and regulations directed at improving air quality in nigeria. the http://creativecommons.org/licenses/by-nc-sa/4.0/ 56 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia federal environmental protection agency (fepa) was originally established under the amended decree no. 58 in 1992 as contained in the 2004 version of the laws of the federation of nigeria to undertake the following functions, amongst others (federal republic of nigeria, 1999). a. prepare a comprehensive national policy for the protection of the environment and conservation of natural resources, including procedures for environmental impact assessment for all development projects. b. prepare, in accordance with the national policy on the environment, periodic master plans for the development of environmental sciences and technology and advice the federal military government on the financial requirements for the implementation of such plans. c. promote co-operation in environmental science and conservation technology with similar bodies in other countries and with international bodies connected with the protection of the environment and the conservation of natural resources. d. co-operate with federal and state ministries, local governments, statutory bodies and research agencies on matters and facilities relating to the protection of the environment and the conservation of natural resources. it is unfortunate, however that, this law has since been abrogated by section 36 of the national environmental standards and regulation enforcement agency (established) act of 2007 which provides that “the federal environmental protection agency act is [now] repealed.” this author has, elsewhere criticized the abrogation as misguided (derri & abila, 2007). it is important, at this stage to examine the criminal sanctions under the criminal code and the harmful waste (special criminal for provisions etc.) act respectively to see how these laws have strengthened the legal regime against atmospheric pollution. criminal sanctions under the criminal code and the harmful wastes (special criminal for provisions etc) act no. 42, 2004 under section 234 of the criminal code, the offence of “common nuisance” is committed “where a person does anything, which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all members of the public.” this offence correlates with the common law offence of “public nuisance. it can be also raised to punish unlawful discharge of pollutions on public land as well as waters due to the inconveniences and damage to the public in the enjoyment of these rights, likely to be cause. also under section 245 of the criminal code, the offence is committed where there is “fouling” (corruption) of waters. for example, under section 245 of the criminal code, it is on offence on the part of any person who corrupts or fouls any spring, stream, well tank, reservoir or place so as to render it less fit for the purpose for which it is ordinary use. the offense is a misdemeanor, carries http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 57 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia punishable under section 247 of the criminal code. it is doubtful whether this provisions in the criminal code still serve any important purpose in the niger delta region of nigeria, for example. however, under section 247 of the criminal code, any person who commit “noxious acts which affect public health may be punished. this provision is particularly important if applied to gas flaring going on abated in the niger delta region. it is necessary at this point to note, apart from the above law, however that, there exists several other local legislation enacted ostensibly to protect the environment. however, in the context of air pollution control, the following matters may constitute a statutory nuisance if they are either prejudicial to health or a nuisance: a. any premises in such a state so as to be harmful to health or a nuisance; smoke, fumes or gas emitted from premises so as to be prejudicial to health or a irritation; b. any dust, steam, smell or other effluvia arising on industrial, trade or business premises. let us now consider the legal regime against air pollution under international environmental law. international protection against air pollution global interest against atmospheric pollution is founded on the fact that, far from been a local problem, it has trans-boundary impacts. this can be illustrated from the fact that air pollution in the territory in one nation may also cause environmental damages and impacts in another country (weiss, 1988). references are often made, for example, to the fires which originated in indonesia, several years ago which brought about haze smoke and particulate pollution which did not only affect indonesia but caused severe negative impacts in thailand, philippines, singapore, brunei and papua new guinea (dudley, et.al., 1997). worthy of note also, is the fact that an estimated 11/2 % of the entire acid deposited on canada originates from the united states of america. on the other-hand, canada is also credited with the generation of 20% acid deposition in the united states. the point to note in all this, however, is whether international law can be applied as an instrument to regulate trans-boundary air pollution. in other words, the question one can ask, is whether, a particular country from which air pollution originates can be sued by another country for negative impacts caused by trans-boundary pollutions to a different nation? amokaye g. oludayo has, in his book, environmental law and practice in nigeria, succinctly examined the current position of trans-boundary air pollution in the light of developments in the advanced nations vis-à-vis african nations, admirably, as follows: “international response to long-range trans-boundary air pollution is elaborately expressed in customary law and treaties negotiated bilaterally http://creativecommons.org/licenses/by-nc-sa/4.0/ 58 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia or at regional levels to address the issue of air pollution. incidentally, while efforts are being made by developed countries of west to address the issues of long-range transboundary air pollution at bilateral and regional levels in europe and america, which cumulated in the negotiation of the long rang trans-boundary air pollution convention and the 1991 us-canada bilateral air quality agreement, there appears to be no significant effort by african states to address the problem. the absence of such convention may not be unconnected with the fact that african countries are more preoccupied with social, economic and political problems. it is equally not unconnected with the fact that there is no credible scientific evidence to trigger continental action on the problem. consequently, the discussion on international treaties on air pollution discussed here is not particularly relevant to africa. but african states should draw inspiration from them when confronted with the need to negotiate air pollution convention either at regional or continental level” (oludayo, 2004). this is an unfortunate lacuna in our anti-air pollution laws not only in nigeria but also in africa which must be given urgent attention. i. customary law in the well-known trail smelter’s case the tribunal in applying, the existing international law, in the area held, amongst other things that: “under the principles of international law….. no state has the right to use or permit the use of its territory in such a manner as to cause injury by fumes or into the territory of another or the properties or person therein, when the case is of serious consequence and the injury is established by clear and convincing evidence.” hunter, salzman and zaelke (2011), in their book: international environmental law and policy argued that though, the trail smelter arbitration did not technically constitute a legal precedent for similar disputes, in the light of the fact that it was a decision which was based on a relatively restrictive settlement on an agreement amongst the two parties; all the same, the thinking in trail smelter is still persuasive today, not only in cases involving trans-boundary air pollution but also applies to international environmental law generally. this is clear as it has found expression in principle 21 of the rio declaration which have received global acceptability. ii. treaties it is appropriate to discuss this part of the paper by stating that the drive to curtail the incidence of atmospheric pollution at global level started in the year 1979 upon the conclusion of the 1979 convention on long-range trans-boundary air pollution. it is worthy of note however that, before then, the nations in europe have continued to monitor the emission of so2 and nox pollution budgets for most countries and that http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 59 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the earlier before then, the said treaty was negotiated among the states in europe. however, the united states of american and canada also subsequently ratified same. amodaye g. oludayo further asserted that: “the treaty was the first environmental treaty signed by both east and west apparently as a result of the end of the cold war between europe and usa. the objective of the convention is to protect man and his environment against air pollution and to striving to limit and, as far as possible, gradually reduce and prevent air pollution, including long-range trans-boundary air pollution”. contracting states are required inter alia to initiate policies and strategies for exchange of information, consultation, research and monitoring as a means of combating the discharge of air pollutions. the convention also sought for cooperation among members states in the areas of research and development of existing and proposed technologies for reducing emission of sulphur compounds and other major air pollutants, including technical and economic feasibility and their environmental consequences. it also seeks to study the effects of sulphur compounds and other major air pollutants on human health and the environment. these include research in the areas of agriculture, forestry, material aquatic and other natural ecosystems and visibility, with a view to establishing a scientific basis for dose and effect relationship designed to protect the environment. it also has its objective capacity development through education and training programmes in related aspects to air pollution and long-rang trans-boundary effect. the treaty has been followed by a number of other protocols (protocols of 1984 (geneva), (1985) (helsinki) 1988 (sofia) 1991 (geneva) and 1994 (oslo). the protocol institutes a clear target and timetable, by freezing emissions at 1987 levels. is also specifies certain technology-based standards, including, for example, a requirement to make unleaded gasoline available. finally, the nox protocol requires parties to begin gathering information for a critical load approach, which as of 1997 parties were still negotiating. emerging recent developments in winding on this paper it is in important to refer to the recently – developed the flare gas (prevention of waste and pollution) regulations, 2018 and the nigerian gas flare commercialization programme (ngfcp) of the federal government of nigeria which is ostensibly developed to “curb gas flaring—with the issuance of the flare gas (prevention of waste and pollution) regulations, 2018 (the regulations), which is the latest in a long line of legislation and policy measures aimed at reducing and ultimately eliminating gas flaring in nigeria. prior to the issuance of the regulations, the 2017 national gas policy (ngp) had articulated the federal government of nigeria’s (fgn) commitment to achieve a flare out date in 2020, by adopting a combination of targeted policy interventions such as requiring oil companies to mandatorily include viable and executable gas utilization plans in their field development plans. the ngp had also buttressed the need for upstream http://creativecommons.org/licenses/by-nc-sa/4.0/ 60 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia companies to maximize utilization of their associated gas; and expressed the fgn’s intention to work collaboratively with industry, development partners, providers of flare-capture technologies and third party investors towards ensuring that flare capture and gas utilization projects are developed and the (ngfcp) which was also developed to provide “a market-led mechanism aimed at attracting competent third party investors to commercialize nigeria’s flared gas.” the regulations sets out the legal and commercial framework for the commercialization of flared gas by the fgn through permit holders (the flare gas regulations, 2018). it is only hoped that the above mentioned regulations will be implemented to the letter since the ultimate intention behind the said regulations is to phase out gas flare in nigeria in the year 2020. based on the above the following recommendations are made. conclusion air pollution in nigeria’s niger delta region and other parts of the globe is an issue that request urgent attention by the nigerian authorities and multinational oil companies operating in the area because gas flaring and atmospheric pollution has being occurring for a long time without the needed application of existing laws, rules, treaties, international conventions and international customary law dealing with trans-boundary atmospheric pollution and its control and management. it is a cheering news that the nigerian government, has repeatedly expressed, its desire, to phase out gas flaring in the niger delta in the near future. in view of this, the nigerian national space research and development agency (nasrda) is reportedly funding the research titled, “applying remote sensing and gis techniques to air quality and carbon management, a case study of gas flaring in the niger delta.” the research, which commenced in january 2008 at the university of the west of england, aims to integrate in-situ measurements of ambient concentrations and emissions with satellite remote sensing data to assess air quality emissions and co2 concentrations resulting from gas flaring in the niger delta. the available satellite technology resources at nasrda will combine with the european expertise in air quality studies available at uwe to proffer solutions to air pollution and air quality management in the niger delta. recommendations finally, the paper suggest that: 1. the authorities in nigeria must now fully explore the potentials for gas utilization in nigeria. it is proposed that nigeria make concerted efforts to ensure that henceforth flared gas is utilised to provide adequate power generation for the nation. 2. it is also recommended that government lay gas pipelines across the major industrial areas of nigeria to supply gas for the purpose of running of industries. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 61 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this will reduce manufacturing reliance on burning of liquid and solid fossil fuels for energy and ensure the use of cleaner gasolines to run manufacturing operations in nigeria. 3. more than ever, there is now an urgent need to develop a vigorous intensive care and management system, which ensure that high quality information on the extent and impact of air pollution can be used as the basis for legislation to curtail the pollution and develop a mechanism that will enhance clean air when gas flaring ends in nigeria. references abam, t.s.k. 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(1979) 1442. protocols of 1984 (geneva) (the 1984 geneva protocol on long-term financing of the cooperative programme for monitoring and evaluation of the long-range transmission of air pollutants in europe (emep). retrieved from https://unece.org/environment-policyair/emep-protocol protocol of 1985 (helsinki) (the 1985 helsinki protocol on the reduction of sulphur emissions or their transboundary fluxes by at least 30 per cent). retrieved from https://unece.org/environment-policyair/1985-helsinki-protocolreduction-sulphur-emissions-or-their-transboundary protocol of 1988 (sofia) (the 1988 sofia protocol concerning the control of emissions of nitrogen oxides or their transboundary fluxes). retrieved from https://unece.org/fileadmin//dam/env/lrtap/nitr_h1.htm protocol 1991 (geneva) (the 1991 geneva protocol concerning the control of emissions of volatile organic compounds or their transboundary fluxes). retrieved from https://unece.org/environment-policyair/protocol-concerningcontrol-emissions-volatile-organic-compounds protocol 1994 (oslo) (the 1994 oslo protocol on further reduction of sulphur emissions). retrieved from https://unece.org/environment-policyair/protocolfurther-reduction-sulphurhttp://creativecommons.org/licenses/by-nc-sa/4.0/ https://brill.com/search?f_0=author&q_0=barbara+kwiatkowska https://brill.com/search?f_0=author&q_0=cees+flinterman https://brill.com/search?f_0=author&q_0=johan+g.+lammers https://brill.com/search?f_0=author&q_0=johan+g.+lammers https://apps.who.int/iris/handle/10665/39902 64 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia emissions#:~:text=the%201994%20oslo%20protocol%20builds,under%20the %201985%20helsinki%20protocol. the flare gas (prevention of waste and pollution) regulations. (2018) printed and published by the federal government printer. lagos. nigeria fgp78/82018350, government notice no. 59. case trail smelter arbitration (united state v. canada) 3 r.i.a.a. 1907 (1941) http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 527 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article how can the law protect the forest? implementation of forest protection through law no. 18 of 2013 on forest destruction and burning winda indah wardani1 1 institute for environmental and forest protection, samarinda, indonesia  windaindahwardani@gmail.com cited as wardani, w. i. (2021). how can the law protect the forest?. journal of law and legal reform, 2(4), 527-538. https://doi.org/10.15294/jllr.v2i4.48757 submitted: december 7, 2020 revised: march 11, 2021 accepted: july 11, 2021 abstract forest area is a living environment that must be preserved. therefore, forest protection is done through law no 18 of 2013 on the prevention and eradication of forest destruction. although there is normative forest protection, forest fire and destruction cases are still common. so that the implementation of environmental law enforcement in indonesia needs assessment has been appropriate or not with the law. then if there is any inconsistency with the applicable regulations, it is necessary evaluation and solution to answer the problem. so that the goal of protecting the forest can be realized. given the impact of forest fires and forest destruction is not only felt by people in the country but also the world community. keywords: forest protection; burning; destruction; environmental protection journal of law and legal reform (2021), 2(4), pp. 527-538 doi: https://doi.org/10.15294/jllr.v2i4.48757 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i4.48757 https://doi.org/10.15294/jllr.v2i4.48757 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 528 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction forest is a unity of ecosystem in the form of land containing biological natural resources that cannot be separated from one another (inswiasri, kasnodihardjo, nainggolan, mardiana, & manalu, 2011). indonesia is a tropical country with a forest area of 133,300,543.98 ha. these include natural reserves, protection forests, and production forests. some islands in indonesia have a large forest of which is the island of sumatra is one of the areas in indonesia who always experience forest fire/land every year. in the event of climate drift causing drought, the number of incidents of forest fires/land becomes significantly increased (zubaidah, dirgahayu, & sariwulan, 2005). wildfire is a state of uncontrolled fire occurring in rural areas or large areas. the spread of fire may change direction unexpectedly (faisal, yunus, & harahap, 2013). there are two types of fires: ground fire and surface fire. the two types of fires damage the bushes and underbrush to the organic material beneath the litter layer such as humus, peat, tree roots or decaying wood. if slowly handled by fire may occur extensively resulting in a crown fire where the fire damages the tree canopy. however, this last type of fire can occur also because of the presence of lightning. forest fires in indonesia always occur during the dry season, i.e., in august, september, and october, or in transitional periods. potentially burning forest areas in indonesia are in sumatera island (riau, jambi, north sumatra, and south sumatra) and kalimantan (kalbar, east kalimantan, and south kalimantan). the causes of forest and land fires in indonesia are generally caused by two factors. firstly, it is due to human negligence factor that is carrying out its activities in the forest. second, because of intentional factors, namely the human intentions that open the land and plantation by burning. wildfires due to human negligence factor are much smaller than the deliberate factor of burning the forest. land clearing by burning is done at the opening of new land or for the rejuvenation of industrial crops in the forest area (zuhud, hikmat, & kosmaryandi, 2016; widyaningsih & sembiring, 2021; handayani, sulistiyono, leonard, gunardi, & najicha, 2018). land clearance by forest burning is cheap, but this method is irresponsible and has a huge impact. losses are also very large. forest and land fires cause environmental damage. forest fire can harm public health and cause infectious diseases in respiratory (breath) and transportation smoothness due to poor visibility (perwitasari & sukana, 2008). large forest fires can disrupt the people http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 529 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of neighboring countries, and if not resolved soon lead to negative public assessment international to the indonesian government. destruction of forests in general can be defined as activities in the form of illegally occupying and/or using forest areas, encroaching illegal logging (logging), logging, transporting, and selling of illegally or unauthorized timber from local authorities, conducting exploration or exploitation minerals in the forest area without valid authorization and issuing, carrying and transporting unregulated wild plants and animals originating from the forest area without authorization from the competent authority (riyadi, alhamda, airlambang, anggreiny, & anggara, 2020; purwendah, periani, & pudyastiwi, 2021; rosana, 2018). method the research method used normative research, by using approach of legislation and analytical and conceptual approach. the statutory approach and the analytical approach are based on legal material collected namely the primary law used as the main legal ingredients, such as the laws and regulations, from the highest level to the lower-level regulations. in addition to primary legal materials are also equipped with secondary legal materials, namely legal materials that can provide explanations of primary legal materials (barus, 2013), such as books written by experts, legal doctrines, legal journals, and so on, and coupled with tertiary legal material, which is legal material that can give guidance or explanation of primary and secondary legal materials, among others: legal dictionaries, encyclopedias about the law, and so forth. data used in this research is secondary data that is primary law material starting from uud 1945, law number 32 year 2009 about environmental protection and management and law number 18 year 2013 about prevention and eradication of forest destruction, secondary law material in the form of journals, previous studies and relevant reference and books. the method of legal research, according to soerjono soekanto is a scientific activity, which is based on methods, systematics, and certain thoughts, which aims to study one or several specific legal phenomena, by analyzing them. forest fires and air pollution http://creativecommons.org/licenses/by-nc-sa/4.0/ 530 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia definition of forest fire according to sk. menhut. no. 195 / kpts-ii / 1996 is a situation where the forest is hit by fire causing the destruction of forest and forest products causing economic and environmental losses. forest fires are one of the effects of increasing levels of pressure on forest resources. the impacts associated with forest or land fires are environmental damage and pollution, such as damage to flora and fauna, soil, and water. forest and land fires in indonesia occur almost every year even though the frequency, intensity and extent of their area are different. negative impacts on the physical environment include air quality degradation due to the concentration of smoke that shortens visibility, interferes with transportation, alters the physics-chemical and biological properties of the soil, alters the microclimate due to loss of plants, even in the global environment contributes to the greenhouse effect (bahri, 2002). impacts on the biological environment include decreasing biodiversity levels, disruption of natural successions, disruption of organic material production and decomposition process. impact on health is the occurrence of smoke that interfere with public health, especially the poor, elderly, pregnant women, and children under five such as acute respiratory infections (ispa), bronchial asthma, bronchitis, pneumonia, eye, and skin irritation. social impacts are loss of livelihood, security, and harmony of local community (office of state minister l.h., 1998). in addition, it is suspected that these forest fires can produce toxins of dioxins, which can cause cancer and infertility for women (tempo, june 27, 1999). while the economic impacts include the canceling of land-air and air transport schedules, loss of vegetation, especially high economic value, community medical expenses, decline in industrial and office production, and the drop in tourism business project in southeast asia (eepsea) the value of losses caused by forest fires in 1997/1998 covered by 3 (three) countries (indonesia, malaysia and singapore) reached 1.45 billion dollars (us) (putra, 2015). this figure is almost equal to the total loss due to the bhopal tragedy (leaking installation of union carbide plant in india in 1984) and exxon valdez (spilling millions of tons of oil from a tanker in alaska, usa in 1989), or equal to about 2, 5 percent of indonesia's gnp before the monetary crisis (tempo, 28 december 1998). in general, forest fires occurring in indonesia are caused by three main factors namely the condition of fuel, weather, and socio-cultural society. fuel conditions that are prone to fire hazards are abundant in the forest floor, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 531 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia relatively low water content (dry), and the availability of sustainable fuel. climatic factors such as temperature, humidity, wind, and rainfall also determine the fire vulnerability. high temperatures due to direct sun irradiation cause the fuel to dry and flammable, high humidity (in forests with dense vegetation) reduces the chances of forest fire, the wind also affects the process of fuel drying and the speed of fire spreading while the rainfall affects the size water contained in the fuel. socio-cultural factors of society have the greatest contribution to the existence of forest fires (rasyid, 2014). some factors that cause forest fires include: 1. the use of fire in land preparation activities. communities around forest areas often use fire for land preparation, both for making farmland and plantations such as coffee and cocoa. the high difference in production costs is a factor driving the use of fire in land preparation activities. the method of fire use in land preparation activities is done because it is cheap in terms of cost and effective in terms of time and the results achieved quite satisfactory. 2. disappointment of the forest management system. various social conflicts often arise in the communities surrounding the forest area. the conflicts are mainly conflicts over forest management systems that do not provide economic benefits to the community. the discontentment of some communities over the management of forests can lead people to act anarchically without considering existing conservation and legal rules. limited community education and lack of community knowledge of the functions and benefits of forests are very influential on their actions in managing destructive forests. 3. illegal logging. illegal logging activities produce more critical lands with high fire vulnerability. often, uncontrolled fires easily propagate into the area of critical forests. illegal logging activities often leave fuel (leaves, branches, and branches) that are increasingly accumulating and accumulate in forest areas that in the dry season will dry up and are very potentially harmful to forest fires. 4. the need for forage of animal feed (hmt) community life around the forest area is not separated from livestock and grazing. livestock (especially cattle) is one form of side business to meet the needs of family life. the need for hmt and grazing areas is one of the things that must be met. to get grass with good quality and has a high level of palatability is usually the community burned the pasture areas that are not productive. after http://creativecommons.org/licenses/by-nc-sa/4.0/ 532 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the area of grassland grass will grow a new grass of better quality and high nutritional content. 5. forest encroachment another factor that is not less important as the cause of forest fires is the migration of people in forest areas (forest encroachers). it is realized or not that the longer the community's living needs will increase as the number of families increases and the more complex the necessities of life. it demands the population to increase the extent of their cultivated land so that their agricultural produce can meet their daily needs. 6. another reason another causes that could trigger the occurrence of fire is the lack of public awareness of the dangers of fire. usually, the form of activity that is the cause is the accident of the perpetrator. for example, people have a high interaction with forests. one form of such interaction is the habit of residents taking rattan that usually while working they light a cigarette. unconsciously they throw cigarette butts in forest areas that have abundant fuel potential to allow fires to occur. air pollution is defined as the presence of one or more pollutants entering the open atmospheric air, which may be formed as dust, vapor, gas, fog, odor, smoke, or moisture characterized by their number, nature, and duration (suratmo, 1995). air pollution caused by forest fires is against the principles of international environmental law. one principle is "sic utere tuo alienum al laedes" which dictates that a state is prohibited from conducting or permitting any activity which could harm the state (starke, 1999), and the principle of good neighborliness. [11] in essence the principle says the sovereignty of a country's territory should not be disturbed by other countries. the principles of international law for other environmental protection are the general prohibition to the principle, the duty to prevent principle, the duty to the principle of negotiation and cooperation principle, the intergenerational equity principle (samekto, 2009). illegal logging and forest destruction criminal acts in the forestry sector include 15 types of criminal acts that can be classified into 3 groups, namely: (1) a ban on damaging facilities and infrastructure of forest protection; (2) a ban on forest destruction; and (3) administrative restrictions but criminal sanctions (salim, 2004). one form of crime in the field of forestry is timber theft or logging. grammatically the notion http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 533 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of illegal logging is the cutting of wood to then bring to the place of saw which is done unlawfully, contrary to law or illegally according to law (sukardi, 2005). illegal logging is a sequence of logging activities and transporting timber to the processing site to illegally export timber exports because they do not have permission from the authorities. such an act is contrary to applicable law and is seen as an act which may damage the forest. thus, can also be said that illegal logging including deeds of forest destruction that impact on the loss of both the economic, ecological, and socio-cultural aspects. illegal logging is a crime because the impact is very broad covering the economic, socio-cultural, and environmental aspects. this crime poses a potential threat to social order and can create tensions and conflicts in various dimensions, so that forestry crimes are factually deviating from the norms underlying life and social order (basir, 2016). the impact of forest destruction caused by illegal logging is not only perceived by the people around the forest but also perceived nationally, regionally, and internationally, since the forest not only belongs to a particular society or country but belongs to the universal community as the lungs of the world. factors that cause illegal logging are lack of personnel of the forestry apparatus causing weak supervision, availability of employment and the poverty factor of the citizens, the weakness of legal payments so that the government must be able to fix the illegal logging activities do not occur, in line with the results of the study according to dudley as quoted by nurdjana, there are three factors that cause fertile wild at the local level where the three factors interact, support each other and complement each other (akhmaddhian, 2016; purniawati, kasana, & rodiyah, 2020). this factor also allows illegal logging extends rapidly as follows: (a) community value factors and population situations. community values and situations of forest villages are factors that influence illegal logging due to some elements, as are the following elements: 1. employment and income needs 2. the influence of other workers who have been working illegally 3. local dissatisfaction with central forest policy 4. support for sustainable forest management. (b) economic factors of supply the economic problems of supply and normal demand related to the logging industry or now better known as illegal logging occur due to several things, namely: (1) the capacity needs of the domestic timber industry and demand for overseas timber. (2) wood supply http://creativecommons.org/licenses/by-nc-sa/4.0/ 534 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia capability and timber harvesting policy. (3) high profits from timber companies. the large capacity of the timber industry in the region will lead to increased demand for timber supply leading to excessive timber harvesting. the ability of timber supply and the capability of providing legal timber industry that is not proportional to the high demand for timber within and outside the country, resulting in imbalances between inventory and demand then generating additional demand for timber extracted from illegal logging. (c) the entrepreneur factor and its effect. the linkage of the entrepreneurs to collusion with local officials is also a factor in illegal logging. it is influenced by several elements such as: (1) proficiency obtained by timber entrepreneurs; (2) the magnitude of the effect of timber entrepreneurs and logging bosses on local officials; (3) the amount of participation of local officials in illegal activities. a. law enforcement as implementation of law no 18 of 2013 the objective of forest protection is to preserve the forest's function and function, as well as to maintain the quality, value, and usefulness of forest products. furthermore, article 46 of law no. 41 of 1999 stated that the purpose of forest protection is that forest functions covering protected functions, conservation functions and production functions can be achieved (al husein, 2015). thus, forest protection is an attempt to prevent forest degradation. criminal acts in the forestry sector include 15 types of criminal acts that can be classified into 3 groups, namely: (1) a ban on damaging facilities and infrastructure of forest protection; (2) a ban on forest destruction; and (3) administrative restrictions but criminal sanctions. the first and third classes are formal crimes (formal offenses); while the second group, is a material offense (material offense) which requires the occurrence of forest damage. the third category of criminal offense in the forestry field is an administrative provision that causes a result (forest destruction) because it is addressed to the recipient of a forestry business license (permit for the utilization of the area, the utilization of environmental services, the utilization of timber and non-timber forest products, timber, and non-timber forest). the effort to eradicate illegal logging the form of authority possessed by local government is limited authority, because even though indonesia has changed the system of government from a centralized system of government to decentralization, still in the case of the transfer of authority from the central government to the regional government is a limited authority. the authority of local governments in efforts to eradicate illegal logging that occurred in the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 535 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia region can be divided into 5 categories based on the authority of the regional government as regulated in the relevant laws and regulations of both forestry laws and local government legislation. the authority of local governments in efforts to eliminate illegal logging that occurred in the area is as follows: (1) license granting, (2) establishment of local regulations, (3) supervision, (4) in cooperation with related institutions, (5) firm and critics in granting and lifting of forest licenses. even though some efforts have been made in the handling of illegal logging and forest burning, there are still some obstacles. the juridical obstacles that accompany law enforcement performance against forestry crime may come from its legal substance factor and its law enforcement officers (runtukahu, 2014). in terms of legal substance there are several issues that interfere with the performance of law enforcement against criminal acts in the field of forestry, namely: 1. the provisions of the forest criminal law cannot touch the intellectual actors. 2. the difficult proof of forestry crime. 3. the scope of the formulation of delict and criminal sanctions is still narrow. 4. not specified to replace ecological losses. 5. not established by special judicial institution of forest crime as long as law no 18 of 2013 on prevention and eradication of forest destruction in practice encountered obstacles related to limited local government authority. human resources in the framework of minimal forest monitoring so that cases of illegal logging easily pass. the practice of collusion of officials of local government passing permits of illegal logging, and the deliberate destruction of forests by unscrupulous elements are irresponsible. in this case of course the number of forest destruction is not much decreased. it is necessary to guarantee certainty both juridically and implementatively to protect the forest. conclusion forests have a very important function and role in the social and economic life of a country; therefore, the state is obliged to provide forest protection from any activity or deed that can cause forest destruction, including from criminal acts committed against forests. crimes in forestry have been regulated in law no. 18 of 2013 on prevention and eradication of forest destruction, including illegal logging. it's just that the regulation on forestry crime is still there some http://creativecommons.org/licenses/by-nc-sa/4.0/ 536 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia weaknesses, namely the formulation of delict is still unclear, has not been able to touch the perpetrators who are corporate, intellectual actors and proof has not given access to check the bank account of forest crime perpetrators. the process of investigation of crimes in the field of forestry is specifically regulated, i.e., conducted by civil service investigator officials within the ministry / forest service at both the central and regional levels. in addition to the special investigators there are other law enforcement officials who also have the authority to conduct criminal investigations in the field of forestry, namely investigators from the police, attorney and the indonesian navy. in practice, sometimes there is a clash of authorities among the investigators so that the investigation performance does not work well. the process of prosecution and examination in the trial of criminal offenses in the field of forestry done in general by using the provisions of procedural law contained in the criminal procedure code. law enforcement of forest crime is experienced some good juridical obstacles stemming from forestry legislation, the formulation of forest offense cannot reach the intellectual perpetrators of crime in the field of forestry, difficult proof, the scope of the formulation of the offense is still narrow, not compensated for ecological damages, and not a special court of justice established in forestry crime. while non-juridical obstacles include weak coordination among law enforcement agencies, regulation of confiscation processes treated equally with other general criminal acts, limited human resources, funds, facilities and infrastructure in law enforcement of forest crime. references akhmaddhian, s. 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(2016). traditional land practice and forest conservation: case study of the manggarai tribe in ruteng mountains, indonesia. komunitas: international journal of indonesian society and culture, 8(2), 256-266. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 507 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article position of the victim in criminal acts illegal logging redentor g.a. obe1, ali masyhar2 1postgraduate program, faculty of law, universitas negeri semarang, indonesia 2department of criminal law, universitas negeri semarang, indonesia  redentorobe58@gmail.com cited as obe, r.g.a., & masyhar, a. (2020). position of the victim in criminal acts illegal logging. journal of law and legal reform, 1(3), 507-516. doi: https://doi.org/10.15294/jllr.v1i3.36702 abstract the purpose of this study is to analyze the position of victims in criminal acts of illegal logging and find legal reasons to the extent that the state pays more attention to state losses as victims compared to the position of the community as victims in illegal logging. the paper uses a qualitative approach with normative legal research. data collection techniques using library research, with comparing some related laws and regulations. this paper emphasized that: (1) the position of the victim in the case of illegal logging in the criminal justice system is still lacking due to the regulation of the law and the principles in the criminal procedure code itself more prioritizing retribution as embezzlement, such as seeing how much loss arises due to the perpetrators criminal without seeing the position of the community as victims indirectly. whereas the state is more concerned with the state's loss than the community as a victim. there are principles in the indonesian criminal procedure law which are strengthened by the constitutional court's decision which argued that state control over the earth and water and the natural resources contained therein. this means that the state is given the freedom to regulate, make policies, manage and oversee the use of the earth and water and natural resources contained in it with a constitutional measure that is as much as possible the prosperity of the people and considers the rights of the people as victims only of an objective nature where the state takes policy with more attention to victims generally. keywords: victim; illegal logging crime; criminal act; criminal law; state losses journal of law and legal reform (2020), 1(3), pp. 507-516. doi: https://doi.org/10.15294/jllr.v1i3.36702. issn (print) 2715-0941, issn (online) 2715-0968 submitted: 10 august 2019, revised: 11 january 2020, accepted: 9 march 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i3.36702 https://doi.org/10.15294/jllr.v1i3.36702 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 508 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 507 table of contents ………………………………………………………….. 508 introduction …………………………………………………………………. 508 method …………………………………………………………………………… 509 illegal logging: how does law regulates this? ……………. 510 i. criminal aspects in illegal logging forest damage ... 498 ii. position of the victim in the criminal justice system .. 511 position of the victim in the indonesian criminal code ... 514 position of the victim in illegal logging crimes …….…….. 515 conclusion …………………………………………………………………….. 516 references ……………………………………………………………………... 516 introduction illegal logging or commonly called forest destruction which covers illegal logging of forest trees, is an act that is not favored by the community and the state. the legal basis prohibiting illegal logging practices is law number 23 of 1997 concerning environmental management which was later replaced with law number 32 of 2009 concerning environmental protection and management, law number 41 of 1999 concerning forestry and law number 5 of 1990 concerning conservation indonesian biological natural resources. whereas in the case of imprisonment of the perpetrators of illegal logging (forest destruction) regulated in law number 41 of 1999 with the heaviest criminal threat is 15 years and a fine of 5 billion. the practice of illegal logging, by taking wealth of natural resources in agriculture, especially forests, not only happens to be sold within the country, but also sold to other countries. as a result of these sales it will result in huge losses for the country and also the surrounding community. in his brief remarks prof. dr. kaligis s.h., m.h. said that the fact of illegal logging took place and smuggling to other countries such as malaysia and singapore which was marked by the loss of 28 million ha of forests and consequently was a decline in per capita income for the republic of indonesia. at present singapore's income from processing natural resources, especially forests, is 7.7% while indonesia is 5.2%. meanwhile, when compared with singapore which in fact the position of natural wealth is not as good as indonesia (ricar, 2012). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 509 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia article 33 paragraph (3) of the 1945 constitution states that: "the earth, water and natural resources contained therein shall be controlled by the state and used for the greatest prosperity of the people". this means that natural resources can be used for the interests and prosperity of the people, held by the state or government. therefore, natural resources are very important for the lives of many people to help people meet their economic needs. in cases of criminal acts (illegal logging) the loss is the surrounding community and the state. the purpose of the forest is to protect the community from the dangers of floods, landslides and prolonged drought. however, the state takes over by punishing the perpetrators of these crimes and ignoring the community as victims, even though in a crime that needs attention is the perpetrators and victims (arifin 2020a; 2020b). however, because the rules explain that the victims who often appear to be the state take control of the state according to the rules of law without regard to the situation of the community. evidence that the position of the victim is often forgotten is found in the principles of our criminal procedure law which is more concerned with the perpetrators of crime than the victims, namely: 1. the principle of presumption of innocence 2. open trial principles 3. principle of direct and oral inspection 4. principles of speedy justice (surahman & hamzah, 2015: 35) all of these principles are always highlighted by the perpetrators and state losses. for example, in criminal acts of forest destruction (illegal logging) is the responsibility of the perpetrators and how much the damage suffered by the state, but the government does not pay attention to social losses that is losses suffered by the community (also the environment) be it individuals, environmental groups of people who suffer as a result of the destruction of the forest (aji, wiyatno, arifin, & kamal 2020; arifin & choirinnisa 2019) based on this reasoning, it can be drawn up the formulation of problems related to the role and position of the community as victims of illegal logging, while what is always applied is state losses in general and legal basis which justifies the state paying less attention to communities as indirect victims of forest destruction (illegal logging). method this study uses a qualitative method that is the presentation of descriptive analytic research results not with numbers in a phenomenon that functions to more easily understand phenomena that occur in society that are not yet widely known. http://creativecommons.org/licenses/by-nc-sa/4.0/ 510 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia qualitative approach which means that the core of the general principles underlying the manifestation of symptom units in human life, or analyzing patterns arising from socio-cultural phenomena by using culture in society to obtain a picture of the patterns that applicable. the patterns were analyzed again using objective theory (ashofa 2013: 20-21). this type of research is normative juridical legal research. this type of legal research is carried out by examining library materials or secondary data as a basic material to be examined by conducting a search of the regulations and literature relating to the problem under study (soekanto 1986; arifin, waspiah, & latifiani 2019). legal research legally means that research refers to studies of existing literature or to secondary data used, namely the 1945 constitution, law no.32 of 2009 concerning environmental protection and management, law number 8 of 1981 concerning criminal procedure code, law number 41 of 1999 concerning forestry, law no 13 of 2006 concerning the protection of witnesses and victims, law number 5 of 1990 concerning conservation of indonesia's living natural resources. the data validation technique is done by examining its credibility using triangulation techniques (sugiyono 2010). illegal logging: how does law regulates this? the state of indonesia has issued various regulations concerning the protection of the forestry sector in positive law as stipulated in law number 41 of 1999 concerning forestry in conjunction with law number 19 of 2004 concerning the establishment of government regulations in lieu of law number 1 of 2004 concerning amendments to law number 41 of 1999 concerning forestry becomes law. further protection on forestry which is also regulated in government regulation no. 45/2004 concerning forestry, and criminal sanctions threatened with illegal loggers act no. 41 of1999 and law no. 18/2013 concerning prevention and destruction the forest, the heaviest criminal threat aimed at perpetrators of illegal logging, is 15 years in prison and a fine of rp. 5 billion. indonesia already has regulations to manage the environment, namely law no. 5 of 1990 concerning the conservation of indonesia's biological natural resources which focuses on the preservation of biodiversity, both biodiversity in state and non-state forest areas. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 511 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the development of legislation administration from time to time both the diversity of natural resources themselves, their protection and their ecosystems from year to year are always damaged. four (4) criminal aspects / as causes of violations of the environment (environmental damage) according to ahmad santosa as follows: 1. failure in making policy (policy failure) weak capacity of regulators in supervision or strict policies in tackling the destruction of natural resources, it means that development is only oriented to exploitation (use oriented) so that existing natural resources are drained in such a way and forget what is left for tomorrow which is important for our children and grandchildren as the next generation. 2. failure in implementing / implementing policy. development is partial or added without regard to the quality of the building to be sustainable. 3. failure due to weak institutional arrangement of government (institutional failure). the low capacity of regulators in conducting supervision and law enforcement. this means that there is still collusion between government supervision and law enforcement. 4. failure at the level of civil society to protect the natural resource ecosystem and carry out the public control (society's failure) function. lack of community understanding and cultural influences on the importance of hatyati natural resources for the benefit of common life. of these four weaknesses when related to indonesia's biological natural resources viewed in terms of environmental law on forestry, illegal logging or tree felling in the forest area often occurs together. i. criminal aspects in illegal logging forest damage according to muladi, illegal logging crime can be seen from several elements in general in the criminal code, namely: 1. damage destruction as regulated in article 406 through article 412 of the criminal code is limited only to the destruction of goods in the sense of ordinary goods owned by people (article 406 of the criminal code). the goods can be in the form of goods that are lifted and not lifted, but goods that have a social function means that they are used for public purposes as regulated in article 408, but are limited http://creativecommons.org/licenses/by-nc-sa/4.0/ 512 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia to certain items as mentioned in that article and are not relevant to be applied to crime of destruction forest. 2. theft theft according to the explanation of article 362 of the criminal code has the following elements: a. the act of taking, which is taking to be mastered b. an good, in this case goods in the form of wood that were taken when not in the possession of the perpetrators c. partly or wholly owned by someone else, in this case the forest can be customary forest and private forest which is included in the state forest or state forest that is not encumbered d. with the intention of having possession by breaking the law. 3. smuggling until now, there are no laws and regulations that specifically regulate timber smuggling, even in the criminal code which is a general provision against criminal acts does not yet regulate smuggling. during this time smuggling activities are often only equated with offense theft because it has the same element, that is, without the right to take the property of others. 4. counterfeiting the falsification of documents is regulated in articles 263-276. falsification of material and trademark is regulated in articles 253-262, falsification of letters or fabrication of fake letters according to the explanation of article 263 of the criminal code is to make a letter whose contents are not appropriate or to make such a letter, so that it shows as the original. letters in this case are those that can issue: a matter, an agreement, debt relief and a letter that can be used as a description of an act or event. the criminal threat against falsification of the letter according to article 263 of the criminal code is a maximum of 6 years imprisonment, and article 264 of the criminal code is a maximum of 8 years 5. embezzlement the embezzlement of the criminal code is regulated in articles 372 through article 377. in the explanation of article 372 of the criminal code, embezzlement is a crime that is almost the same as theft in article 362. the difference is that the theft of possessed goods is still not in the hands of thieves and must still be "taken" "while the embezzlement of the possession of the item is already in the hands of the maker, not by crime. 6. heling http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 513 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in the criminal code, basically detention is another term for conspiracy or conspiracy or evil help. retention in foreign language "heling" (explanation of article 480 of the criminal code). further explained by r.soesilo, that the act was divided into, the act of buying or renting goods that are known or reasonably suspected to be the proceeds of crime. the criminal threat in article 480 is a maximum of 4 years or a maximum fine of rp 900 (nine hundred rupiah). from the general elements of crime above, it can be concluded that there are several criteria for forestry crime, one of which is the modus operandi in which the government and civil servants who have authority in the field of forestry, whether civil or military, shareholders in logging in carrying out deforestation by illegal there is no firmness in the law that regulates even to the falsification of documents about the validity of forest products (skshh) so that the perpetrators often escape the legal trap, because the applicable elements have not reached all aspects of the perpetrators of crime because the law has not clearly stipulated about 1). existing regulations and policies cannot solve problems, especially environmental crime, 2). uu no. 23 of 1997 in conjunction with law no. 32 of 2009 cannot be an effective instrument for protecting the environment, 3). while technological developments are followed by increasingly sophisticated quality and quantity of crime and often have regional and national international impacts. according to article 50 of law no. 41 of 1999 concerning forestry, in the category of illegal logging, including: working and or using and or occupying illegal forest areas (illegal), encroaching forest areas, cutting down trees in forest areas, burning forests, and others. the dimensions of illegal logging activities are: a. licensing, if the activity does not have a permit or the permit is not yet available or the permit has expired, b. practice, if in practice does not apply logging according to regulations, c. location, if carried out at a location outside the permit, cut down in a conservation / protected area, or the origin of the location cannot be shown, d. wood production, if the wood is careless (protected) type, there is no diameter limit, no origin of wood identity, no company identification, e. documents, if there are no legal documents, f. actors, if individuals or business entities do not hold logging business licenses or carry out illegal activities in the forestry sector, g. sales, if at the time of sale there were no documents or physical characteristics of wood or wood smuggled. so, basically, illegal logging is illegal logging, transportation and sale of timber or does not have a permit from the local authority. http://creativecommons.org/licenses/by-nc-sa/4.0/ 514 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ii. position of the victim in the criminal justice system the position of the victim in the criminal justice system as a unit of a crime has not been fully considered. whereas the rights of victims in the criminal justice system should be seen as an integral part of the overall criminal justice system. according to ali masyhar said that "the position of the victim or people who were harmed by the existence of a crime so far has been very sad, the victim seems to be forgotten even though if we want to do law enforcement in the criminal justice system, it is necessary to pay attention to what is included in the legal protection against victims of criminal acts "(masyhar 2008: 91). meanwhile, according to h. s. brahmana (2015: 54) states the position of victims in the criminal justice system (criminal justice system) has not been placed fairly even tends to be forgotten where this condition has implications for two fundamental things namely: 1. there is no legal protection for victims and 2. judges' decisions have not fulfilled a sense of justice for victims, perpetrators or the wider community. in this case concerning illegal logging cases which, according to icw records from 2005-2008, of the 205 illegal logging cases that were tried experienced criminal disparities namely, 76% only tried the field operators, 24% the main actors, and from 24% it was more than 71% are acquitted (ricar, 2012: 5; arwana & arifin 2019) . of course, in the judge's decision raises the debate from aspects of the philosophy of punishment and the implementation of the decision of the judge in terms of protecting the parties concerned. position of the victim in the indonesian criminal code the position of the victim in positive criminal law has not explicitly formulated provisions that concretely or directly provide legal protection for the victim. the meaning is still abstract and against the law. in this case ali masyhar defines the position of the victim in the indonesian criminal law or positive law which is always described by the indonesian criminal code that "the position of the victim in criminal law has no meaning or is abstract in which as part of the protection of the victim has http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 515 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia not received attention from the indonesian criminal code in terms of compensation restitution "(mashhar, 2008: 92). apart from that, the articles in the indonesian criminal code tend to pay more attention to the perpetrators of criminal acts, namely regarding the formulation of criminal acts made by the perpetrators, criminal liability and criminal threats that will be charged to the perpetrators of criminal acts. in this case the position of the victim is also still very little attention. position of the victim in illegal logging crimes as it has been written and shared that the illegal logging case is not only detrimental to the state as a victim but is detrimental to the community as an indirect victim which in illegal logging can cause environmental aspects that have an impact on floods, droughts that affect the joints of life or on the contrary landslides can disrupt the community's economy. indonesia has a state forest area of 112.3 million ha, consisting of 29.3 million ha of protected forest, 19 million ha of conservation forest and 64 million ha of production forest. data from the indonesian ministry of forestry in 2010 stated that deforestation (forest loss) was mainly caused by encroachment (60%), conservation (22%), road use (16%), and as much as (0.6%) caused by mining. meanwhile, according to global forest watch, noted that indonesia from 2001 to 2014 globally ranked fifth and in 2012 as the highest record for loss of tree cover> 30% canopy cover which reached 2.26 million ha. associated with countries with tree cover loss. the loss of tree cover in question is the loss of tree cover in various landscapes, such as tropical rainforest to plantation areas without explaining the cause. 2012 was recorded as the highest record. in addition, according to the ministry of environment and forestry, said that deforestation in indonesia showed a declining trend in the period 2009 to 2014, while the results of the 2017 land cover data analysis in the 2016-2017 period as conveyed by the minister of environment and forestry, siti nurbaya in jakarta (29/01.2017), national deforestation (net) is 479 thousand ha, with details in the forest area of 308 thousand ha, and in other use areas (apl) is 171 thousand ha with deforestation rate in 2016, which is 630 thousand ha. forest area in 2017 covers 93.6 million ha. in addition, siti nurbaya also said that currently there is a decline in deforestation rates in the forest area, which is 64.3%, compared to 2014 which amounted to 73.6%. http://creativecommons.org/licenses/by-nc-sa/4.0/ 516 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia whereas in the case of justification or legal basis in which the government / state is more concerned about the state's loss than the community as a victim indirectly, there are principles that apply in indonesian procedural law and are also strengthened by the constitutional court's decision in "mkri ruling number 3/puu viii / 2010 "which argues that state control over the earth and water and the natural resources contained therein. this means that the state is given the freedom to regulate, make policies, manage and oversee the use of the earth and water and natural resources contained in it with a constitutional measure that is as much as the prosperity of the people, so it can be concluded that the rights of the community as victims are only objective where the state takes policy in the interests of the country in general . conclusion this study concludes that the position of the victim viewed from the perspective of criminal justice as a state institution can be said to be merely complementary. this is due to the current criminal procedure code which is more oriented towards the perpetrators referred to as the concept of retributive justice (retaliation) so that the position of the victim in the criminal justice system has not received a balanced place with the perpetrators. the legal basis that can justify the state being placed as a victim of forest destruction (illegal logging) is article 33 paragraph (3) of the 1945 constitution states that: "the earth, water and natural resources contained therein are controlled by the state and used for the maximum prosperity of the people ". and strengthened again with the decision of the constitutional court in the "mkri decision no. 3 / puu-viii / 2010" which argues that state control over the earth and water and natural resources contained therein. therefore, it can be concluded that the rights of the community as victims are only objective in that the state takes policies in the interests of the state in general. references aji, a. b. w., wiyatno, p., arifin, r., & kamal, u. (2020). social justice on environmental law enforcement in indonesia: the contemporary and controversial cases. the indonesian journal of international clinical legal education, 2(1), 57-72. https://doi.org/10.15294/ijicle.v2i1.37324 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/ijicle.v2i1.37324 journal of law & legal reform volume 1(3) 2020 517 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ali, a. (2012). menguak teori hukum (legal theory) dan teori peradilan (judicial prudence). jakarta: kencana prenada media group. arief, b.n. (2014). bunga rampai kebijakan hukum pidana (perkembangan penyusunan konsep kuhp baru). jakarta: pranamedia group, jakarta. arifin, r. (2020a). crimes and society, how do the law respond to disruptive conditions?. law research review quarterly, 6(1), i-iv. retrieved from https://journal.unnes.ac.id/sju/index.php/snh/article/view/37437 arifin, r. (2020b). legal reform discourse in indonesia and global context: how does the law respond to crime. journal of law and legal reform, 1(2), 193-196. https://doi.org/10.15294/jllr.v1i2.37057 arifin, r., & choirinnisa, s.a. (2019) pertanggungjawaban korporasi dalam tindak pidana pencucian uang dalam prinsip hukum pidana indonesia (corporate responsibility on money laundering crimes on indonesian criminal law principle). jurnal mercatoria 12(1), 43-53. doi: http://dx.doi.org/10.31289/mercatoria.v12i1.2349 arwana, y.c., & arifin, r. (2019). jalur mediasi dalam penyelesaian sengketa pertanahan sebagai dorongan pemenuhan hak asasi manusia. jambura law review 1(2), 212-236. doi: https://doi.org/10.33756/jalrev.v1i2.2399 iskandar, i. (2004). perlindungan hukum kawasan hutan di provinsi bengkulu ditinjau dari segi hukum lingkungan administrasi. kanun: jurnal ilmu hukum 38(2), 135-148. mahfud, m.d. (2012). politik hukum di indonesia. jakarta: pt raja grafindo persada. masyhar, a. (2008). pergulatan kebijakan hukum pidana dalam ranah tataan sosial. semarang: unnes press. medan, s. (2010). pengantar ilmu hukum. kupang: fakultas hukum, universitas nusa cendana. muladi, m., & arief, b.n. (1998). teori-teori dan kebijakan pidana. bandung: pt. alumni. nurjaya, n. (2008). pengelolaan sumber daya alam dalam perspektif antropologi hukum. jakarta: prestasi pusat karya. ricar, z. (2012). disparitas pembalakan liar dan pengaruhnya terhadap penegakan hukum di indonesia. bandung: pt. alumni. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://journal.unnes.ac.id/sju/index.php/snh/article/view/37437 https://doi.org/10.15294/jllr.v1i2.37057 http://dx.doi.org/10.31289/mercatoria.v12i1.2349 518 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia republic of indonesia. (1945). constitution of republic of indonesia 1945. republic of indonesia. (1981). law number 8 of 1981 concerning indonesian criminal procedural code. indonesian criminal code, kitab undang-undang hukum pidana (kuhp) republic of indonesia (1999). law number 41 of 1999 concerning forestry. republic of indonesia. (2006). law number 13 of 2006 concerning witness and victim protection. republic of indonesia. (2009). law number 32 of 2009 concerning environmental protection and management. republic of indonesia. (1990). law number 5 of 1990 concerning conservation of indonesia's biological natural resources. sugiyanto, s. (2016). ekonomi sumber daya alam. yogyakatta: sekolah tinggi ilmu manajemen ykpn. surahman, s., & hamzah, a. (2005). pre-trial justice discretionary justice (dalam kuhap berbagai negara). jakarta: sinar grafika. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 325 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia review article criminal accountability for corruption actors in the form of concursus realist redentor g. a. obe1, indah sri utari2 1 postgraduate program, master of laws, universitas negeri semarang, indonesia 2 department of criminal law, faculty of law, universitas negeri semarang  redentorobe58@gmail.com cited as obe, r.g.a., & utari, i.s. (2020). criminal accountability for corruption actors in the form of concursus realist. journal of law and legal reform, 1(2), 325-332. doi: https://doi.org/10.15294/jllr.v1i1.35451 abstract the purpose of this study is to describe and analyze the criminal liability arrangements for the perpetrators of corruption in the form of concurrent acts, finding juridical reasons to the extent to which corruption in the form of concurrent acts can be justified. this research method uses a qualitative approach with normative juridical law design. data collection techniques using library research subjects library research law faculty of semarang state university. data analysis techniques: (1) presentation, (2) data reduction, and (3) collection and verification. the results of the study: (1) the form of criminal liability from the perpetrators of corruption in the form of a joint act is to follow the criminal procedure in the criminal code by dropping the absorption system which is made worse by the regulation contained in the constitutional court's decision in the results of the criminal chamber meeting of the supreme court of the republic of indonesia tangerang no 10 concerning the application of concursus teachings precisely in the parallel act of corruption. conclusions of the study that the doctrine of concursus results of the criminal chamber meeting of the supreme court of the republic of indonesia tangerang has a legal basis that serves as a guideline or legal basis so that the action does not go outside the lines of statutory provisions in the implementation of decision making in imposing penalties for the perpetrators of acts corruption in the form of a parallel act. keywords: corruption, concursus realist, criminal law, criminal accountability submitted: 6 december 2019, revised: 23 january 2020, accepted: 26 january 2020 journal of law and legal reform (2020), 1(2), pp. 325-332. doi: https://doi.org/10.15294/jllr.v1i2.35406. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 326 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 325 table of contents ………………………………………………………….. 326 introduction …………………………………………………………………. 326 method …………………………………………………………………………… 327 concursus realist on corruption crime ………………………... 314 i. definition of criminal acts of corruption in the form of realist concursus ………………………………………………….. 328 a. definition of concursus realist …………………………………………….. 328 b. the responsibility of perpetrators of corruption in the form of realist concursus system ……………………………………………………………. 329 ii. judicial judgement concerning concursus realits on corruption case …………………………………………………….……. 330 a. results of the criminal chamber meeting of the republic of indonesia supreme court in tangerang ……………………………………………….. 330 b. as far as the juridical arguments can be justified corruption in the form of concursus realists ………………………………………………………... 331 conclusion …………………………………………………………………….. 331 references ……………………………………………………………………... 331 introduction corruption is one part of the special criminal law (ius singulare, ius speciale or bijzonder strafrecht) and the positive legal provisions (ius constitutum) of indonesia, which are regulated in the law of the republic of indonesia number 31 of 1999 as amended and supplemented by law of the republic of indonesia number 20 of 2001 concerning eradication of corruption crimes. when elaborated, corruption has certain specifications that are different from general criminal law, such as deviations in procedural law and regulated material intended to minimize the occurrence of leakage as well as deviations to the country's finances and economy. corruption is a form of crime that is carried out systematically and well organized and is carried out by people who have an important position and role in the social fabric of society. therefore, this crime is often called a white-collar crime or white-collar crime. in practice, corruption which has been arranged in such a neat way, the mode of crime and its quality makes corruption difficult to express, so that in its eradication efforts it can no longer be carried out "normally", but, "demanded in extraordinary ways" (extraordinary enforcement). in criminal law, recognize the crime that is called concurrent or commonly called concursus. as is known concursus is divided into three forms, namely idealist concursus, continued concursus and realist concursus. the legal basis for concursus regulation can be found in articles 63-71 of the criminal code (kuhp) but in this case the author will discuss more about corruption in the form of concurrent acts (concursus realists). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 327 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia realist concursus can be interpreted as a comparison of more than one action (charlie. rudyat -,: 127). this is corroborated by the opinions of (laden marpaung, 2005: 32), he said that the concurrent action (concursus realist) occurs when someone at the same time realizes some actions. whereas according to concursus realist experts is a parallel act that is not the same type and the act is independent in nature that violates criminal provisions in the form of a crime or violation of a n act that has not yet been sentenced. from some of the above meanings, it can be seen that to determine a criminal act included in a parallel act or concursus realist is not an easy case, especially in corruption which in eradication requires extraordinary handling. on the basis of that thought, then the problem can be drawn about how the form of accountability of perpetrators of corruption in the form of concurrent acts? whereas in the criminal act of corruption based on its background it does not yet regulate corruption in the form of concurrent acts in this case concursus realist, and how is the juridical reason to what extent the criminal acts of corruption in the form of adjustment are adjusted through the criminal code whereas in criminal law the laws apply the special one will override general law (lexs specialis derogate legi generalis). method this study uses qualitative methods in a phenomenon that functions to more easily understand phenomena that occur in society that are not yet widely known. a qualitative approach which means that the presentation of research data is analyzed and presented descriptively. the core of the general principles that underlie the representation of symptom units that exist in human life, or analyzing the patterns that arise from socio-cultural phenomena by using the culture in society to get a picture of the patterns that apply. these patterns are analyzed again using objective theory (ashofa 2013: 20-21). this type of research is normative juridical legal research. this type of legal research is carried out by examining library materials or secondary data as a basic material to be examined by conducting a search of the regulations and literature relating to the problem under study (soekanto, 1986: 52). legal research legally means that research refers to existing literature studies or secondary data used, namely the 1945 constitution, the criminal code, the law number 8 of 1981 concerning the criminal procedure code, the law of the republic of indonesia number 31 of 1999 as amended and supplemented with law of the republic of indonesia number 20 of 2001 concerning eradication of corruption crimes. this research is descriptive because this study is intended to provide as detailed data as possible about how the provision of penalties and criminal liability from perpetrators of corruption in the form of concurrent acts (concursus realists). then the validity of the data is done by examining its credibility using triangulation techniques (sugiyono, 2010) http://creativecommons.org/licenses/by-nc-sa/4.0/ 328 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia concursus realist on corruption crime i. definition of criminal acts of corruption in the form of realist concursus a. definition of concursus realist in criminal law, we are familiar with comparative or commonly called concursus. according to utrecht said that to state the existence of a combination, the conditions of that combination must be considered. the conditions of the combination include: a. there are two or more criminal acts committed b. that two or more criminal acts have been committed by one person (or two people in terms of participation) c. whereas two or more of these criminal acts had not yet been tried d. that two or more criminal acts will be tried at the same time (utrecht e, 1958: 17). in general, concursus is divided into three forms, namely idealist concursus, continued concursus and realist concursus and the legal basis for concursus arrangements can be found in articles 63-71 of the criminal code (kuhp). furthermore, by mr. j. e. jonkers said that in terms of togetherness togetherness is a provision regarding criminal application. there are 4 (four) systems implemented in this case, namely: a. the absorption system is only the toughest rule of law implemented. b. sharpened absorption, the most severe criminal rules carried out added a little 1/3 above the maximum sentence. c. a pure cumulation system, that is, a crime without reduction. d. a cumulative system without softening, there are several penalties that are imposed, but the total time of all penalties is the longest with a portion (one third)" (jonkers j. e, 1987 : 206). but at this time the author only focuses on cases of corruption in the form of concurrent acts or commonly referred to (concursus realists). concourse of realist understanding in indonesian is commonly referred to as (concurrent action) while in dutch is usually referred to as meerdaadse samenloop. the basis of the realist concursus is regulated in articles 65 71 of the criminal code. in this realist concursus, the criminal code recognizes three forms of comparison, namely: a. concurrent crime that is threatened with similar crimes b. concurrent crime that is threatened with crimes that are not the same c. comparable violations with each criminal stand alone. from these three forms of realist concursus, the punishment system used is different from one another (arwan sakidjo and bambang poernomo, 1990: 169). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 329 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia b. the responsibility of perpetrators of corruption in the form of realist concursus system 1) criminal imposition concursus realis the criminal conviction system in concursus itself has a variety it is seen from the several criminal provisions of a defendant who have violated several criminal acts according to the type of concursus itself. this is different from the realist concursus, namely the realist concursus in the criminal code recognizes 3 forms of incarceration, including: a. concurrent crime threatened with similar crimes b. concurrent crime that are threatened with similar crimes c. concurrent of violations with each criminal stand alone. meanwhile, according to r. soesilo, he further divided the realist concursus in detail namely: a. crimes crimes between crimes of the same type or not of similar types in articles 65 and 66 of the criminal code b. crime – violation crime – violation contained in article 70 of the criminal code. c. violations the criminal offenses contained in article 70 bis criminal code (r. soesilo, 1991: 86) 2) concursus realist criminal prosecution system on criminal acts of corruption law of the republic of indonesia number 31 of 1999 as amended and supplemented by law of the republic of indonesia number 20 of 2001 concerning eradication of corruption. in general, this law has divided the classification of criminal acts of corruption into seven (7) sections namely: a. harms the country's finances / state economy: article 2 and article 3 b. bribery: articles 5,6,11,12. a, b, c, d, and article 13 c. violations in office: articles 8, 9, 10. a, b, c d. extortion: article 12. e, f, g e. fraudulent deeds: article 7 (1), a, b, c, d, 7 (2), 12. h f. conflict of interest in procurement: article 12. i g. gratuities: article 12 b, jo 12 c the seven classifications in preventing corruption have been compiled with very critical thoughts, but in the development of science it still feels incomplete because of frequent corruption that escapes the law. one of the shortcomings of this law is to ensnare perpetrators of corruption in the form of concurrent acts (concursus realis) because in the law on eradicating corruption, it does not yet clearly stipulate the criminal acts which must be accounted for by perpetrators of corruption in the form of concurrent acts, whereas in the criminal code regulates corruption in the form of concurrent acts which in the system of imposing a sentence is used by an sharpened absorption system, with the most serious criminal threat added by 1/3 http://creativecommons.org/licenses/by-nc-sa/4.0/ 330 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia above the maximum sentence. whereas the principle of criminal law applies special laws that will override general laws (lexs specialis derogate legi inferior). ii. judicial judgement concerning concursus realits on corruption case a. results of the criminal chamber meeting of the republic of indonesia supreme court in tangerang on march 8 to march 10, 2012, in the results of the criminal chamber meeting of the supreme court of the republic of indonesia, tangerang succeeded in formulating various problems which became a controversy in criminal law. one of them is a solution in dealing with corruption in the form of concurrent acts (concursus realists) as describe on table 1 as follows. table 1 result meeting concerning concursus realist no problem solution 1 application of the concursus / samenloop doctrine 2 verdict inspection process: a. in the first level: proven corruption b. at the appeal level: proven corruption crime c. at the cassation level: proven criminal acts of corruption and money laundering, with 2 (two) criminal forms at once, namely: 1. corruption crime = 6 years 2. money laundering = 6 years total punishment = 12 years 3 legal issues: a. how is the application of the law regarding concursus / samenloop teachings if the case is categorized / seen as a combination of actions with concursus realist teachings if in a case the defendant is charged with a cumulative indictment, and more than one indictment is proven, then a criminal conviction must not exceed the maximum threat of the heaviest crime plus 1/3 of the heaviest criminal source: indonesian supreme court, edited by author from the above table, it can be concluded that the solution in dealing with cases of corruption in the form of concursus realist is to use the system adopted in the criminal code http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 331 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia b. as far as the juridical arguments can be justified corruption in the form of concursus realists the argument for the justification of corruption in the form of concursus realis is based on the results of the criminal chamber meeting of the supreme court of the republic of indonesia tangerang precisely on no. 10 on march 8 to march 10, 2012 precisely in the legal issues in the case of concurrent cases marked by criminal disparities in corruption cases in the process of examining decisions at the first level, appeal and cassation and have obtained a solution regarding the application of the law regarding concursus/samenloop teachings which are categorized /seen as a combination of actions with concursus realist teachings that still follow the penal code pattern adopted in the criminal code regarding an enhanced absorption system with the heaviest criminal added to 1/3 of the heaviest punishment itself without exceeding the heaviest criminal itself. conclusion this paper concludes that in the form of responsibility of the perpetrators of corruption in the form of a parallel act in the results of a criminal chamber meeting of the supreme court of the republic of indonesia tangerang on march 8 to march 10 in 2012, has determined that the punishment that must be given is the most severe crime plus 1/3 of the heaviest criminal provided that it does not exceed the threat of the heaviest criminal itself. juridical reasons to the extent that the criminal act 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(1988). pemecahan perkara pidana (splitsing). yogyakarta: liberty. republic of indonesia (1945). the 1945 constitution of the state of the republic of indonesia, undang-undang dasar negara republik indonesia tahun 1945 republic of indonesia (1999). law of the republic of indonesia number 31 of 1999 as amended and supplemented by law of the republic of indonesia number 20 of 2001 concerning eradication of corruption, undang-undang republik indonesia nomor 31 tahun 1999 sebagaimana diubah dan ditambah dengan undang-undang republik indonesia nomor 20 tahun 2001 tentang pemberantasan tindak pidana korupsi republic of indonesia (2009). law number 48 of 2009 concerning judicial power, undang undang nomor 48 tahun 2009 tentang kekuasaan kehakiman republic of indonesia (1981). law number 8 of 1981 concerning the criminal procedure code (kuhap), undang undang nomor 8 tahun 1981 tentang kitab undangundang hukum acara pidana (kuhap) republic of indonesia. indonesian penal code, kitab undang-undang hukum pidana (kuhp) saleh, s. (1983). perbuatan dan pertanggungjawaban pidana. jakarta: aksara bara. suharto, s. (1996). hukum pidana materil unsur-unsur obyektif sebagai dasar dakwaan. jakarta: sinar grafika. soesilo, r. (1991). kitab undang–undang hukum pidana serta komentarkomentarnya. bogor: politeia. utrecht, e. (1994). hukum pidana ii. surabaya: pustaka tinta mas. utrecht, e. (1958). rangkaian sari kulia hukum pidana ii. bandung: pt. penerbit universitas. utrecht, e. (1962). hukum pidana ii. bandung: penerbit universitas. waloyu, w. (1991). implementasi kekuasaan kehakiman republik indonesia. jakarta: sinar grafika. http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cb09582007 • 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: 7fbf23cb09562007 • 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: 7fbf23c9ea282085 • 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: 7fbf23cd091ba60d • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(1) 2020 77 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article law enforcement of motorized vehicles with muffler racing by magelang city police damas reza kurniadi1 1 legai aid center of uin walisongo, branch kebumen, indonesia  drezakurniadi@yahoo.co.id how to cite kurniadi, d.r. (2020). law enforcement of motorized vehicles with muffler racing by magelang city police. journal of law and legal reform, 1(1), 77-92. doi: https://doi.org/10.15294/jllrorm.v1i1.35415 abstract muffler is a facility to dispose of exhaust gases that result from combustion in a motorcycle engine when the engine is started. motorcycle riders often replace the standard muffler with a harder or racing muffler. basically, muffler modification is considered a violation of the law. based on the description above, the formulation of the problem that will be discussed in this research is how to implement regulations regarding the use of motor racing exhausts on public roads?, and how the actions taken by the magelang city police resort in dealing with the use of mufflers racing? the results of research and discussion indicate that law enforcement in the case of the use of motorcycle racing mufflers is included in law enforcement in the field of traffic. law enforcement in the field of traffic can be grouped into preventive and repressive law enforcement. the conclusion drawn from this study is that the implementation of regulations regarding the use of motorbikes with racing mufflers on public roads has been carried out in accordance with the law. the action taken by police is to carry out traffic and seizure actions taking into account the effects of pollution on the use of mufflers racing which not only damage human health but also damage the environment. keywords: law enforcement; racing muffler, magelang city police department submitted: 18 august 2019, revised: 15 september 2019, accepted: 11 october 2019 journal of law and legal reform (2020), 1(1), pp. 77-92. doi: https://doi.org/10.15294/jllr.v1i1.35415. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i1.35772 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 78 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 77 table of contents ………………………………………………………….. 78 introduction …………………………………………………………………. 78 method …………………………………………………………………………… 79 muffler racing and law enforcement ……………………….… 80 i. implementation of regulations against the use of motorized vehicles with “muffler racing” in the magelang municipal police ……..…….…..……………………… 80 a. reality of violation …..……………………………………………………... 80 b. law enforcement ………………………….…………………………......… 81 c. sanctions imposed for violators ………………………………………….. 85 ii. actions are taken by the magelang municipal police in handling the use of “muffler racing” on public roads ...................................................................................................... 85 a. reasons for legal action ……......……………………..………………….. 87 b. effects of pollution caused by racing exhaust …………………………… 88 conclusion …………………………………………………………………….. 88 references ……………………………………………………………………... 89 introduction modernization has a very real impact on people's lives, changing times are very fast in various fields causing various problems that are very complex (mathijsen, 2017). besides modernization, problems also arise from globalization. differences in views and thoughts from globalization together with modern lifestyles lead to behaviors or activities that are considered to be deviant and considered detrimental to society (guimarães & da silva, 2019). one of the public behavior that is rife in the modern world today is the behavior of people traveling using private transportation. in this day and age transportation becomes very important in living everyday life. to travel far now the community can easily and quickly get to the place they want to go. this is all thanks to the results of human thought itself which is able to create and develop transportation tools that are very helpful in our daily lives. one of the most widely used means of transportation for our society is a motorcycle. industrial production of motorcycles made in indonesia originals and those made outside indonesia that are assembled in indonesia is increasingly diverse, so people are interested in buying motorbikes. from this, it can be seen that there are so many shapes and models as well as various kinds of desires of different people to buy the motorbike they want. the community also needs to choose what kind of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 79 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia motorbike they want to ride in order to provide benefits and prestige that they feel are more confident when they ride the motorcycle. for people who want to own a motorcycle, not all want to use standard factory bikes so that the motorcycle is modified in such a way and changes any parts or accessories that are on the motorcycle so that it does not care about comfort and safety, safety which should be more important to pay attention to in traffic. motorcycle modification that is often done by the public is the replacement of the muffler. muffler is a means of removing exhaust gases arising from combustion in a motorcycle engine when the engine is started (adnan & gazder, 2019). people often replace the muffler using mufflers that have a louder sound or better known as "racing exhaust". the motorcycle which is replaced by the muffler is believed to be able to increase power even the motorcycle will look more ferocious because of the noise caused when driving on public roads. on the other hand, we buy motorbikes, we definitely use them on the highway, and the highway is the only route for motorized motorists who have traffic rules. from the replacement of the muffler the loud noise which was raised by the motorcycle on public roads, the other community became uncomfortable because it was considered noisy. even though people in traffic on public roads have the right to live comfortably without noise(van dijk et al., 2019). from this, there arose a rule that regulates every motorist to drive properly and correctly for the sake of safety with fellow road users. in addition to mutual safety, motorcycle drivers also need to pay attention to the comfort and safety of the vehicle for daily activities. however, in its implementation, the enforcement of the use of "racing exhaust" is still considered controversial. method this study uses legal research with a legal qualitative research approach (redelmeier, tibshirani, & evans, 2003). the definition of legal qualitative research is research that is actually a research procedure that produces descriptive data, i.e. what is stated by the respondent in writing or verbally, and real behavior (sheng et al., 2018). the thing that is studied and studied is a whole object of research, as long as it concerns humans. thus, by using a qualitative approach, a researcher primarily aims to understand or comprehend the symptoms being examined (rosenfeld, 2019). this type of research is sociological-juridical. the focus of research on law enforcement of motor vehicles with exhaust mufflers in the magelang city police jurisdiction. data sources use primary and secondary data sources with data collection techniques in the form of literature studies, interviews, observations, and documentation. data validity with data triangulation techniques and data analysis using descriptive analysis. http://creativecommons.org/licenses/by-nc-sa/4.0/ 80 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia muffler racing and law enforcement i. implementation of regulations against the use of motorized vehicles with muffler racing in the magelang municipal police a. reality of violation based on research conducted at the magelang city police traffic unit, it is found that the violation of the use of motorbike "exhaust mufflers" in the magelang city police area, the authors have observed during “the zebra operation” magelang city police station in october 2017. the results of observations obtained the following data. table 1 data muffler racing drivers during zebra operation no driver, type of motorcycle sanction note 1 ‘black ninja type’ driver ticket (tilang) investigated by ipda 2 ‘green ninja type’ driver released investigated by brigpol 3 klx type driver tilang investigated by eh aipda 4 blue gsx type driver released investigated by brigpol 5 byson type driver released investigated by bripda 6 mio type driver tilang investigated by bripda 7 supra type driver tilang investigated by bripda 8 klx type driver (student) tilang investigated by bripka 9 pengendara sepeda motor klx (umum) tilang investigated by ipda 10 pengendara sepeda motor vixion tilang investigated by bripka 11 pengendara sepeda motor klx tilang investigated by bripda source: zebra operations observation data, magelang city police department in this table, the author can conclude in the case of traffic violations, especially in handling the use of "racing exhaust" there are different measures. where there are drivers who act with a crossing and some are released (released from the ticket or tilang). this can occur because there is a separate understanding from each police member regarding the handling of special cases. in the implementation of traffic operations, there are several different levels of police officers' positions, therefore, it can be concluded that there are also different actions in handling a case because of different levels of knowledge about a matter. law no. 22 of 2009 emphasized that traffic is the movement of vehicles and people in the road traffic space, while transportation is the movement of people or http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 81 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia goods from one place to another using vehicle in the road traffic room (alghuson, abdelghany, & hassan, 2019). whereas what is meant by road traffic space is infrastructure intended for moving vehicles, people, and/or goods in the form of roads and supporting facilities (ali, yaseen, & khan, 2019). the government has the authority to realize traffic and road transportation that is safe, fast, smooth, orderly, and orderly, comfortable and efficient through traffic management and traffic engineering. the procedures for traffic on the road are governed by laws and regulations concerning traffic safety and road transportation, traffic safety and road transportation, and traffic order and road transportation (aney & ho, 2019). b. law enforcement in a study conducted by the writer at the magelang city police traffic traffic unit, the author obtained the results where the writer conducted an interview with mr. ronny on september 13, 2017, “the law enforcement activity program is not oriented towards finding faults from road users but rather oriented to protection, guidance, and user services. the road that violates itself, other road users, and the importance of disclosing criminal cases " law enforcement against the use of motor "exhaust exhaust" itself included in law enforcement in the field of traffic. law enforcement in the field of traffic can be grouped into several sections, namely (bracco, 2018): a. preventive law enforcement (non-penal) includes traffic management activities, traffic control, traffic control, and traffic patrol, which in the implementation of these activities constitutes a traffic safety system which can be separated from other sub-systems. b. repressive law enforcement includes the act of violation and investigation of traffic accidents. enforcement of traffic laws in the educational field, namely carrying out acts of traffic violations sympathetically by giving warnings or warnings against traffic violators, whereas legally it can be interpreted as legal violations of traffic violations which include actions using tickets (takeuchi, 2019). muffler is a channel to dispose of the remaining combustion results in the internal combustion engine. the exhaust system consists of several components, consisting of at least one drain pipe (castillo-manzano, castro-nuño, lópezvalpuesta, & pedregal, 2019). while racing means speeding (racing). so "exhaust racing" is the disposal of the remaining combustion results on the motorcycle racing engine. the use of "racing exhaust" itself on a motorcycle is believed to improve the performance of the vehicle ridden by its users. in addition to the higher performance of the use of "racing exhaust" is felt to make the vehicle rider fierce because when the vehicle is driven on the road the sound of the muffler is very loud not smooth like a motorcycle in general. as explained by the informant that law enforcement regarding the handling of motorbike "exhaust mufflers" in the jurisdiction of the magelang police city refers to law number 22 of 2009 concerning traffic and road transportation article 285 paragraph (1). based on the police function mandated in article 2 of the law of the http://creativecommons.org/licenses/by-nc-sa/4.0/ 82 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia republic of indonesia number 2 of 2002 it is stated that the function of the police is one of the functions of the state government in the field of maintaining security and public order, law enforcement, protection, protection and service to the community. so with this function, placing the police as the state apparatus in terms of maintaining security and order, law enforcement, protection, protection, and service to the community always intersects with the interests of the wider community. as prof. dr. walter c. reckless commented that "the good and bad situation of security and public order (kamtibmas) of a country is affected by at least five things, namely: how the system and organization of the police are, how the legal system, how the judiciary, how the bureaucratic system in building kamtibmas and law enforcement, and how community participation" (crisanti, earheart, rosenbaum, tinney, & duhigg, 2019). the police institution is one institution that is expected by the public at large to play a role in every line of life, which role is based on rules (norms) to be used as a foothold of role models in the development of the mentality of the nation and continue to uphold the values human rights value (watling, 2018). violation of exhaust racing which is often a problem in traffic carried out by motorcycle clubs is usually deliberately carried out for reasons that are not known or indeed do not know the rules that exist in law no. 22 of 2009. most of the motorcycle clubs do not heed their own safety and tend not to care about the safety of others, this is reflected in the violations committed by the motorcycle club. for these violations, the police carried out law enforcement beginning with the inspection of the completeness of the motor vehicle certificate. as the interview conducted by the author with mr. ronny, baur ticketed the magelang city traffic satlantas. the implementation of other law enforcement is emphasized through minister of environment regulation no. 7 of 2009 concerning new type vehicle noise thresholds. in appendix ii of the minister of environment regulation no. 7 of 2009 which has been explained on table 2 as follow: table 2 noise threshold category l max db year of application (i) (ii) motorcycle l up to 80cc 85 77 80<l up to 170cc 90 80 l >175 cc 90 83 information: l: vehicle source: appendix ii of the minister of environment regulation in the regulation it is clear and detailed but in its implementation in the enforcement of motorbike "exhaust mufflers" by the magelang city resort police, especially the traffic unit of magelang city police, if the ministerial regulation is used as a legal basis for law enforcement against the use of "exhaust mufflers" there are still considered obstacles. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 83 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the obstacle when the police take action against violators when referring to ministerial regulation number 7 of 2009 is the limited means to measure noise from the sound produced by the exhaust. "noise meters have so far only been owned by the transportation department. therefore, in the implementation of the ticket regarding "racing exhaust", the magelang city police department used the basis of law number 22 of 2009 article 285 paragraph (1), so that later there would be no questions about noise measuring devices". (personal interview with bribka ronny on september 13, 2017) if observed in the implementing regulations there are definite thresholds regarding noise levels, if seen from that the police need to measure using noise gauges. the noise measurement tool itself is only owned by the transportation department, in addition to that the technical testing of the exhaust noise level is only the transportation department which is in-depth, then for the testing method also requires an adequate place for testing the noise level of the exhaust itself. if using the basis of law number 22 of 2009 article 285 paragraph (1) actually there are also other obstacles, namely regarding technical requirements and roadworthiness. technical requirements and road-worthiness that are well understood and know the standardization are the department of transportation. in the case of the "exhaust racing" regulation which in this case is included in modifying the vehicle when questioning the technical requirements and roadworthiness, there should be a license from the relevant service which is stated in article 50 of law number 22 of 2009 and government regulation number 55 of 2012 article 14. although there are many obstacles in the field, the magelang city resort police still adhere to the traffic law: "the police continue to use the existing article article 285 of law no. 22 regarding road traffic and transportation on the grounds that circulation and use of" racing exhausts "on the streets can be minimized. although the public defends that the use of" racing exhausts "does not neglect the rules if left unchecked and not being acted out fear is considered legal. "if a motorcycle already has a license that has been tested for roadworthiness, then the owner is changed, even though there is only one change, then it can be included article regarding the standardization of motor vehicles, namely article 285 of law no. 22 of 2009" (personal interview with mr. ronny on september 13, 2017) this is consistent with the theory of justice which sets criteria in carrying out everyday law, namely the police must have a general standard to recover the consequences of actions committed by traffic violators. the standard is applied without discriminating against people (ali, 2010: 51). the police, in this case, must http://creativecommons.org/licenses/by-nc-sa/4.0/ 84 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia have a definite legal basis, where although in the inspection of the motorized vehicle the officers will differ but if the police have a definite legal basis. stubborn people who are looking for loopholes in the traffic and road transportation law will certainly be minimized and the police can still maintain their opinions on the mistakes made by motorcycle riders examined by these officers. in order to anticipate the existence of defense from the community because of the action of the use of "exhaust racing" magelang city district police held a joint operation. the involvement of other agencies is carried out so that in the implementation of traffic operations activities can create definite law enforcement. because in each of these agencies have their own expertise to support and assist law enforcement in the field of traffic(dur & vollaard, 2019). in the case of law enforcement, the use of "exhaust mufflers" considered to be able to help the technical test for law enforcement conducted by the police is the transportation agency. the transportation agency is considered capable and understands the matter of vehicle maintenance and feasibility testing because the transportation agency better understands the physical condition of motorized vehicles. whereas the police can only crackdown on violators. "when a vehicle is issued a permit from the state, the vehicle has a reference from dishub. the transportation agency has an atpm where the vehicle whose license is already listed and registered with the transportation agency" "every vehicle that will be marketed in indonesia with a minimum number of 10-plus must be tested in type first, which later will have a certificate of type test registration". from the statement and written interview with the source person, mr. soleh achirudin, the vehicle testing manager of the magelang city transportation department, the author provides an analysis related to the explanation of the results of the interview that the traffic problem is not an easy problem to solve. that is because there are many factors that influence therein. the creation of traffic order cannot be separated from human factors, although the regulations have been explained in detail if humans do not have a law-abiding nature, then these regulations will only become rules. therefore it is necessary to grow a sense of public awareness in obeying traffic laws (dzhuruk & zedgenizov, 2018). effective socialization and enforcement efforts have also been carried out by the magelang city police precinct to make the traffic law success in order to foster a sense of public awareness in traffic. law no. 22 of 2009 concerning road traffic and transportation is also expected to help realize legal certainty for parties involved both law enforcement officials, motorists, and pedestrians. there are three components of the occurrence of traffic, namely humans as vehicle and road users who interact with each other in the movement of vehicles that meet the eligibility requirements and are driven by the driver following the traffic rules established based on laws and regulations relating to http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 85 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia traffic and road transportation through roads that meet the geometry requirements (moore, 2019). c. sanctions imposed for violators sanctions imposed on violators are basically different, there are violators who are penalized by officers, there are also those who are reprimanded by officers and some are left alone by officers. this happens because there are different perspectives from the police itself because there are different levels from the position of the police officers who inspect motorcyclists (wiens, lenk, fabian, & erickson, 2018; arifin, 2019; juliana & arifin, 2019). this is very contrary to what was conveyed by sources about law enforcement using "exhaust racing". where in the statement of the informant "the police continue to use the existing article article 285 of law no. 22 regarding traffic and road transportation with the reason that circulation and use of" racing exhaust "on the road can be minimized. ignoring the rules if left unchecked and not feared is considered legal. unlike the case in the field when there is omission to the driver of a vehicle that uses "exhaust racing". in handling traffic violations, the aforementioned police act no. 2 of 2002 does not violate rules because in their duties in article 18 paragraph (1) which reads: "in the public interest of the republic of indonesia national police officials in carrying out their duties and authorities, they can act according to their assessment alone." the police institution is one institution that is expected by the public at large to play a role in every line of life, which role is based on rules (norms) to be used as a foothold of role models in the development of the mentality of the nation and continue to uphold the values human rights value (factor, 2018; muhtada & arifin, 2019). from this the authors can conclude that the application of sanctions from handling the use of motor "exhaust racing" is different, it depends on the police officers who acted on it. rank or position and knowledge of the meaning of the governing law also influence what actions are taken when dealing with traffic violations because in their duties the police can carry out their duties and authority according to their own judgment (article 18 of the police act no. 2 of 2002). ii. actions are taken by the magelang municipal police in handling the use of muffler racing on public roads provisions in law number 22 of 2009 concerning road traffic and transportation are basically to guarantee human safety in relation to road users. the risk is too great if law number 22 of 2009 concerning traffic and road transportation is not very popular, both in urban communities and in rural communities, especially the younger generation, starting from basic education to university education. so that efforts in creating traffic order can be carried out and traffic smoothness is more guaranteed (yan, yan, ren, tian, & shi, 2018). http://creativecommons.org/licenses/by-nc-sa/4.0/ 86 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia based on the results of the author's research in the magelang city police traffic unit. in the case of traffic violations concerning "exhaust mufflers" in magelang city, the magelang city police department took preventive and repressive measures to deal with this problem including 1) preventive step preventive measures taken by the magelang city police department in anticipating or preventing the rise of the use of motor racing "exhaust racing" is the socialization of law no.22 of 2009, providing legal counseling, providing training (friehe, pham, & miceli, 2018). based on the results of an interview with mr. aiptu wahyudi kaurmintu traffic police unit (satlantas) magelang city police resort on september 13, 2017, who said that: "the police are socializing because they consider the method to be quite effective and still carry out a public address that regulations are needed to make people aware of their own safety when driving on the highway." he also said: "30 days after law number 22 of 2009 concerning road traffic and transportation was passed it had to be enforced (whether the community knew it or not) but from the magelang city police traffic unit continued to provide authorization to motorists for 1 month, in the action also gave advance warning. " what has been done by the magelang city police station is in line with the theory of integrative law where law enforcement is not done through enforcement but with non-penalism through the inculcation of values that develop in society to make and enforce the law (lee, park, & lee, 2018). in the implementation of law enforcement in the field of traffic before carrying out an action must first instill the values that develop in the community so that later the community can realize the importance of the rule of law, especially the rule of traffic law so that later the goal of traffic activity and road transportation will be in accordance with listed in law no.22 of 2009 concerning road traffic and transportation. 2) repressive the repressive step taken by the magelang city police department in suppressing the rise of the use of motorbike "exhaust racing" she magelang city police will incessantly always control or operate motorized vehicles. this operation is carried out on long holidays or even normal days such as the rhombus operation, temple operation, candle operation, zebra operation, sympathetic operation. this operation is carried out in order to reduce traffic violations, reduce the number of accidents, create security, safety, order, and smooth traffic and road transportation. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 87 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in the operation of the vehicle, the actions taken by the magelang city police department if the motorcycle riders are using "exhaust racing" are the traffic ticket and seizure. the repressive step is carried out in order to realize a national legal system based on social justice and truth that animates the law and becomes a guideline in society, where the community can not only claim its rights but the police as law enforcement officers must also implement what is stated in the regulations become a legal basis in legal action (liangwei, 2013). where this is in line with remedial justice theory, it sets out criteria in carrying out everyday law, namely the city must have a general standard to recover the consequences of actions taken by people in relation to each other (liu & sharma, 2019). criminal sanctions are imposed, restore what has been done by the makers of crime and compensation to recover civil errors. the standard is applied without discrimination (marusin, marusin, & danilov, 2018). a. reasons for legal action based on an interview with bribka ronny baur traffic police traffic magelang magelang city, baur police ticket magelang city police station on september 13, 2017, he said: the pollution caused by the exhaust is clearly air pollution because the exhaust emits the second exhaust emission which is noise pollution where the "racing exhaust" is identical to the loud sound and there is also a ringing ear. therefore the police are cracking down on the existence of "racing exhausts" in order to minimize noise disturbance caused by the exhaust. muffler is a channel to dispose of the combustion from combustion in an internal combustion engine and has a function as a distributor of exhaust gases resulting from the combustion of fuel combustion by the engine (metsker, trofimov, petrov, & butakov, 2019). while racing means speeding (racing). so it can be concluded that "racing exhaust" is the exhaust drain from combustion results on a motorcycle racing engine. the use of "racing exhaust" itself on a motorcycle is believed to increase the performance of the vehicle on which the user is riding. jam performance is increasingly high use of "racing exhaust" is felt to make the vehicle ride fierce because when the vehicle is driven on the road the sound of the muffler is very loud not smooth like a motorcycle in general. from this understanding, we can conclude that the pollution caused by the use of "racing exhaust" is air pollution and noise pollution. sound disturbances to some degree can be adapted physically but nerves can be disrupted. sound hardness can have a negative impact on human health, if it continues, sound noise of 30-65 db will disturb the ear membrane and cause anxiety, 65-90 db will damage the vegetative layer of humans (heart, blood circulation, etc.), if it reaches 90 -130 db will damage the ear (satwiko, p. 2004). http://creativecommons.org/licenses/by-nc-sa/4.0/ 88 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b. effects of pollution caused by racing exhaust based on interviews conducted by the author with mr. soleh achirudin manager of vehicle testers at the department of transportation on september 15, 2017. it was explained that there are impacts caused by motorcycle exhaust emissions. "contaminants which are mainly found in motor vehicle exhaust gases are carbon monoxide (co), various hydrocarbon compounds, various oxides of nitrogen (nox) and sulfur (sox), and dust particulates including lead (pb). certain fuels, such as hydrocarbons and organic lead, are released into the air due to evaporation from the fuel system. motorized vehicle traffic can also increase specific levels of dust from road surfaces, tire and brake components." one of the substances released from the combustion of motor vehicles is carbon dioxide (co2). carbon dioxide if neglected, the concentration will accumulate in the atmosphere and potentially cause global warming and in the long run will result in climate change which is dangerous for human life (mohammed, schrock, & jaff, 2019). apart from the effects of exhaust gases, there are also effects from the sound generated. sound disturbances to some extent can be adapted physically but nerves can be disrupted(mohan, 2019). sound hardness can have a negative impact on human health, if it continues, sound noise of 30-65 db will disturb the ear membrane and cause anxiety, 65-90 db will damage the vegetative layer of humans (heart, blood circulation, etc.), if it reaches 90 -130 db will damage the ear (satwiko, 2004). conclusion law enforcement regarding the use of the motorcycle ‘muffler racing” is as it should be in accordance with what is mandated by law no.22 of 2009 concerning road traffic and transportation. however, technical regulations that are listed in ministerial regulation no.7 of 2007 concerning noise threshold are not implemented because in the enforcement of the use of 'racing muffler' the police element is constrained by measuring instruments which are currently only owned by the department of transportation. or motor vehicle operation. in the operation of the vehicle, the actions taken by the magelang municipal police if the motorcycle riders are using "exhaust racing" are ticket and foreclosure. the reason for the action considering the pollution caused by "racing exhaust" is air pollution and noise pollution. the pollution has an impact that not only damages human health but also damages the environment. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 89 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references adnan, m., & gazder, u. 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(2018). a novel control strategy for balancing traffic flow in urban traffic network based on iterative learning http://creativecommons.org/licenses/by-nc-sa/4.0/ 92 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia control. physica a: statistical mechanics and its applications, 508, 519–531. https://doi.org/10.1016/j.physa.2018.05.134 http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cc7b20a619 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(2) 2020 297 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia review article protection of victims of domestic violence (study decision number: 2660/pid.sus/2015/pn mdn) arni ranita tamba1, ali masyhar2 1 postgraduate program, master of laws, universitas negeri semarang, indonesia 2 department of criminal law, faculty of law, universitas negeri semarang  raninita1995@gmail.com cited as tamba, a.r., & masyhar, a. (2020). protection of victims of domestic violence (study decision number: 2660/pid.sus/2015/pn mdn). journal of law and legal reform, 1(2), 297-310. doi: https://doi.org/10.15294/jllr.v1i1.35451 abstract the purpose of this research is,first, to know what is a form of legal protection for domestic violence victim in crime. second, what is the legal consequences for perpetrators of domestic violence. thirdly, what is the judge of consideration for making determination in the decision of number: 2660 / pid.sus / 2015 / pn mdn. the method used in this research is the normative and empirical. with research literature sourced from legislation, books, official documents, and research results and legal research methods that serve to see the law in a real sense and examine how the work of law in the community. the results of the research in this research that victims of domestic violence suffered severe injuries on the left eyelid, left chest and also the left arm. therefore, perpetrators of domestic violence are sentenced to 8 (eight) years imprisonment. keywords: domestic violence, protection, victim, victim protection submitted: 26 december 2019, revised: 23 january 2020, accepted: 24 january 2020 journal of law and legal reform (2020), 1(2), pp. 297-310. doi: https://doi.org/10.15294/jllr.v1i2.35406. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 298 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 297 table of contents ………………………………………………………….. 298 introduction …………………………………………………………………. 298 method …………………………………………………………………………… 300 legal protection for victims in domestic violence cases 301 the legal consequences for the perpetrators of criminal acts of domestic violence ………………………………. 305 considerations imposition of penalties judge in the decision number: 2660/pid.sus/2015/pn mdn ………………………. 308 conclusion …………………………………………………………………….. 309 references ……………………………………………………………………... 310 introduction domestic violence is any act against someone, especially women, misery or suffering physical, sexual, psychological, and / or negligence of household including threat to commit acts, coercion, or deprivation of liberty unlawfully within the domestic sphere (law no. 23 of 2004 concerning the elimination of domestic violence). domestic violence is a complex problem to solve. there are many reasons, which may be the cause, namely: actors violence in the home (domestic violence) really do not realize that what he has done is an act violence in the home (domestic violence), or it could be also the perpetrator was aware that the act of doing an act violence in the home (domestic violence), only offenders ignore it because shelter themselves under certain norms that already exist in society. hence the perpetrator considers actionviolence in the home (domestic violence)as a natural thing. violence does not only arise due to no power but also because of their power. therefore, oftentimes a person considers his actions are reasonable (martha, 2003). included in the scope of the household are: 1. husband, wife and children (including adopted children and stepchildren) 2. people who have a family relationship by blood, marriage, dairy, care, and guardianship, were living in the household. 3. people who are working to assist the household and living in the household, in the period while the household concerned (law no. 23 of 2004 concerning the elimination of domestic violence). forms of domestic violence are as follows: 1. all forms of violence within the family regarding the misuse of power. 2. their levels of violence, from mild to very severe or fatal. 3. violence done many times. if the controls to do violence to weaken or disappear, the violence will continue and gain weight. the target was increased to expand. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 299 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia 4. family violence generally takes place in the context of psychological abuse and exploitation. verbal humiliation in the form of ridicule or profanity often initiate physical violence. 5. violence in the family has a negative impact on all members of the family or household, whether involved in violence or not. everyone in this family feel at ease. this issue is a very destructive element of family life. some of the consequences of this problem is fear, mistrust, emotional and physical gap, lack of communication and disagreements (huraerah, 2012). based on the explanation of the things to be underlined is the family violence occurred because of misuse of power by the strong against the weak. violence can also occur due to several factors triggering or driving as follows: 1. finance. money is often the triggers of dispute between husband and wife. salaries are not enough to meet the needs of households of each month, the demands of the high cost of living, triggering a fight that resulted in violence. 2. jealousy can also be one of misunderstanding, conflict, even violence. 3. one trigger disputes between husband and wife is a problem child. disputes can be more pointed if there are differences in the pattern of education for children between husband and wife. 4. the parents of the husband or wife can trigger fighting and causing a rift in the relationship between husband and wife. parents who interfered in his household, such as financial problems, children's education or employment, often triggering a fight that ended with violence. it can be triggered due to differences in attitudes toward each parent. 5. brothers who live under one roof or not, can trigger a rift in the family and marital relationship. interference of relatives in domestic life, especially with the painful words or denigrate their respective families. 6. politeness. between husband and wife must be mutual respect and understanding. if this is ignored consequently misunderstanding that triggered quarrels and psychological violence. there is possibly lead to physical violence. 7. misunderstand. the husband and wife are like two different poles. therefore, the effort of adjustment and mutual respect the opinions of each party needs to be maintained. if not, there will be misunderstandings. this condition is often triggered by trivial things, if allowed to continue will not be obtained intersection. misunderstandings are not immediately find a way out or completed, would lead to fights that can also lead to violence. 8. no cooking. there husband who says his wife would only eat cuisine so if the wife does not cook will riot. husband attitude shows the dominant attitude. the husband act shows the attitude is still expecting wife is in the domestic domain, or only in the household. wife who felt pressured by this attitude will fight the consequences arising mouth quarrel ended in violence. 9. selfish husband. everyone who lives in the house should submit to their husbands. if there is resistance from the wife or the other occupants of the house, then there will be a fight that followed the violence (soeroso, 2010). http://creativecommons.org/licenses/by-nc-sa/4.0/ 300 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in general, physical violence is always preceded by verbal abuse, such as each lash, swearing, bring leverage past or remove words that offend either party (jamaludin, 2016). legal protection of the victims of the crime violence in the home (domestic violence) still poses problems, especially regarding provisions in criminal law which requires that a crime can only be done prosecution for their complaints. the problem of complaints is a very difficult thing because they do by the victim to report the crime of violence against him would cause embarrassment if disgrace in the family will be known by the public (mansur & gultom, 2009). this paper examines there main points, first, how the legal protection of victims in the criminal act of violence in the home (domestic violence), second, how legal consequences for perpetrators of criminal acts of violence in the home (domestic violence), and third, how to judge a consideration in sentencing on convictions number: 2660/pid.sus/2015/pn mdn method this type of research in this paper is normative (literature), which comes from the legislation, books books, official documents, and the results are solely used to obtain complete data as the basis of this scientific writing. this research is descriptive analytical, which revealed the legislation related to legal theories as research objects. likewise, the law in its implementation in the community with regard to the object of research. to obtain the necessary data in this study, the authors conducted research in the medan district court is located at the court of 8 medan north sumatra and the case was also settled in the medan district court. the data collection techniques performed in the following way: 1. research library (library research) this method is done by conducting research on a variety of reading materials written by scholars such as books on legal theory and study materials as well as legislation on the legal protection of victims of domestic violence (domestic violence). as for other data collection techniques in this study conducted in the following manner: a. secondary data secondary data is data including official documents, books books (reading materials) research results in the form of reports, diaries and so on. the secondary data in the writing of this thesis proposal is a source of reading such books by scholars, legal experts and academics who are scientific and data decision no. 2660/pid.sus/2015/pn mdn. the state court of medan relates the problem discussed in this paper. b. data tertiary tertiary data are materials that provide guidance and explanation of secondary data above. the data tertiary in this paper is through the internet, kemus indonesian, legal dictionaries and encyclopedias. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 301 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia 2. research field (field reseacrh) research field (field reseacrh) that research by examining directly into the field. in this case the researchers to conduct their research directly on the medan district court. objective data analysis in research is to narrow and restrict the data with hopes of becoming a well-structured data. therefore, methods of analysis in accordance with the descriptive research is qualitative analysis method, ie an analysis derived either from observation, and literature study then poured in narrative form a logical and systematic, and further analyzed to gain clarity studied. the process of data analysis in this study using an interactive model. researchers first step is to do a good data collection in the field and literature studies. the data obtained are arranged in the form of the preparation of the data and then do the data processing and so conclude, which do intertviewed with the process of data collection. if the conclusion is less accurate, the researchers verify and re-collect data in the field, the goal is to ensure the validity of the data. legal protection for victims in domestic violence cases wholeness and harmony a happy home, safely, securely, and peace is everyone's dream. thus, every person within the scope of the household in exercising its rights and obligations should be based on religion. it needs to continue to be cultivated in order to build domestic unity (amiur & azhari, 2004). household intactness and harmony can be disturbed if the quality of selfcontrol can not be controlled, which in turn can occur domestic violence causing inconvenience or unfairness to different people within the scope of the household. to prevent, protect victims, and prosecute perpetrators of domestic violence, the state and society shall implement the prevention, protection and prosecution perpetrators in accordance with the philosophy of pancasila and the 1945 constitution (mursyidah, 2000). everyone has the right to protection of self, family, honor, dignity, and property under his control, and has the right to feel secure and protected from the threat of fear to do or not to do something is a human right (the 1945 constitution of indonesia). definition of domestic violence is any action against someone, especially women, misery or suffering physical, sexual, psychological, and / or negligence of household including threat to commit acts, coercion, or deprivation of liberty unlawfully in the domestic sphere (art 1 (1) law no. 23 of 2004). in indonesia that legally, this provision entered into force in 2004. the mission of this act is an attempt (effort) to prevent, reduce or eliminate acts of violence in the home (domestic violence). with the existence of this provision, the state could seek to prevent violence in the home (domestic violence), cracking down on violence in the home (domestic violence), and protect victims of domestic violence. http://creativecommons.org/licenses/by-nc-sa/4.0/ 302 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as the law requires a special arrangement, in addition to containing the settings criminal sanctions, this legislation also regulates procedural law, the obligation of the state to provide immediate protection to victims who report. thus, it can be argued that this provision is a very important breakthrough for the law enforcement efforts of human rights, especially the protection of those who have been harmed in a family or household order. another legal breakthrough is important and forth in the law on the elimination of domestic violence is to identify people who are potentially involved in the violence in the home (domestic violence). household scope includes: a) husband, wife, and children. b) people who have a family relationship referred to in subparagraph (a) by blood, marriage, dairy, care, and guardianship, were living in the household or c) people who are working to assist the household and living in the household, so it is seen as family members. (art 2 (2) law no. 23 of 2004). identification of violence against domestic workers as domestic violence had invited controversy because some have argued that the case should be seen within the framework of employment relations (between workers and employers). nevertheless, the law on the elimination of domestic violence (domestic violence) fill the gap of legal protection due to the current labor laws in indonesia does not cover domestic workers. so that victims of domestic violence (domestic violence) are people who have experienced violence and or threats of violence in the domestic sphere (art 1(1) law no. 23 of 2004). law on the elimination of domestic violence is a positive breakthrough in the constitutional law of indonesia. where personal issues have been entered into the public domain. in the years before the law on the elimination of domestic violence there, cases of domestic violence is difficult to be resolved legally. indonesian criminal law does not recognize domestic violence (domestic violence), even words of violence is not found in the code of penal (indonesian penal code). cases of the husband beating the wife or parents of children solved using the articles about the persecution, which is then difficult once filled with elements of proof, so that the case is no longer followed up. based on act elimination of domestic violence as for other forms of protection for victims of domestic violence are as follows: 1. within 1 x 24 (one time twenty-four) hours commencing from knowing or receiving a report of domestic violence, the police must immediately provide temporary protection to the victims. 2. temporary protection referred to in paragraph (1) shall be issued within seven (7) days after the victim received or handled. 3. within 1 x 24 (one time twenty-four) hours commencing from the protection referred to in paragraph (1), the police are required to request the determination letter from court protection orders. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 303 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia 4. in providing temporary protection, the police can cooperate with health workers, social workers, volunteer, and/or spiritual director to assist victims (art 16 law no. 23 of 2004). victims of domestic violence are entitled to the protection of the family, kepolisiasn, prosecutors, courts, lawyers, social agencies, or other parties legally defined (alimuddin, 2014). victims are entitled to the protection of the family, the police, prosecutors, courts, lawyers, social institutions, and other parties have been temporarily or by the establishment of a protective order from the court, health care in accordance with medical needs, special handling related to the confidentiality of victims, assistance by workers social and legal assistance to any inspection process in accordance with the provisions of the legislation and service of spiritual guidance (samadani, 2013). in granting the additional condition of a protective order, the court shall consider the testimony of the victim, the health worker social worker, volunteer, and/or spiritual guide (khaleed, 2015). national commission on violence against women (komnas perempuan) is an independent state institution in indonesia which was established as a national mechanism to eliminate violence against women (khaleed, 2015). interest of komnas perempuan: 1. develop conditions conducive to the elimination of all forms of violence against women and the enforcement of human rights of women in indonesia; 2. improving prevention and control segal forms of violence against women and protection of women's rights. the mandate and authority of the komnas perempuan: 1. disseminating understanding of all forms of violence against women in indonesia and efforts of prevention and control, as well as the elimination of all forms of violence against women; 2. carry out studies and research on various laws and regulations that apply, as well as relevant international instruments for the protection of women's rights; 3. implement monitoring, including fact-finding and documentation of violence against women and violations of women's human rights, and the dissemination of monitoring results to the public and taking measures that encourage accountability and handling; 4. provide advice and judgment to the government, the legislature, and the judiciary, as well as community organizations to encourage the preparation and validation of legal and policy framework that is conducive to preventing and addressing all forms of violence against women, and the protection, enforcement and promotion of rights women's (human rights); and 5. develop a regional and international cooperation in order to improve prevention efforts and addressing all forms of violence against women in indonesia, and the protection, enforcement and promotion of women's rights. a form of protection that can be done by public assistance can be implemented , as highlighted by martha (2012), as such: http://creativecommons.org/licenses/by-nc-sa/4.0/ 304 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia a. support victims protection of victims by organizations handling abused women and children as community for women and children (kppa), groups struggle equality of women (kpkp-st), as well as similar organizations that have a protective, director or adviser, chairman, chief executive of the will relate to government agencies, community organizations, observer organizations made victims of violence other institutions engaged in the protection force. such institutions will assist victims in completing its case law as well as the rehabilitation of completion when the victim suffered psychological disorders. the agency aims to protect victims of violence in this case are often the victims are women and children. b. counseling this protection is given to the victim as a result of the emergence of a negative impact, the psychological nature of violence in the home (domestic violence) is. which cause prolonged trauma to the victim, usually the victim who suffered physical, mental and social. in addition to the physical suffering, the victim also suffered mental distress, such as the victim feel her shame uncovered or feel guilty. by paying attention to the condition of the victim, forms that are psychological counseling, more suitable given to the victim rather than just with reimbursement to the victim. c. the establishment of a safe place to stay safe house is a temporary shelter for women and children who are victims of violence, which will provide protection, welfare, and aid in order to avoid violence victims were able to finish the problems. in general, the victim was taken to a safe house, because the victim did not feel safe in her own home. the safe house is not just a place to stay or boarding alone. however, it is very important for victims who experience violence in the home (domestic violence) very long, or through a process of long and traumatic experience psychic suffering. victims like this are very helpless, therefore a safe house built by non-governmental organizations have a vision of a clear mission, which is to protect and restore the victim's condition and have alignments to the victim and not to blame the victim, and where should try to understand the circumstances and the victim's condition, especially women. this issue is a serious concern not only among legal practitioners but also all the good humanitarian observers governmental organization (ngo) and international non-governmental organization (ngo) in the country. countermeasures like this is usually done by social institutions and religious for example, boarding schools, churches and monasteries. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 305 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia the legal consequences for the perpetrators of criminal acts of domestic violence every act of a criminal act must have legal effect in accordance with the criminal acts that have been carried out. the legal consequences for perpetrators of domestic violence as follows: article 44 (1) anyone committing acts of physical violence within the domestic sphere as referred to in article 5 letter a shall be punished with imprisonment for a period of 5 (five) years or fine of not more rp15,000,000.00 (fifteen million rupiah). (2) in terms of the act referred to in paragraph (1) resulted in the victim got sick or seriously injured, shall be punished with imprisonment of ten (10) years or a maximum fine of rp 30.000.000,00 (thirty million rupiah). (3) in terms of the act referred to in paragraph (2) resulted in the death of the victim, shall be punished with imprisonment for a period of 15 (fifteen) years or fine of not more rp45,000,000.00 (forty-five million rupiah). (4) in terms of the act referred to in paragraph (1) committed by a husband against his wife or vice versa that does not cause disease or an obstacle to running the job position or livelihood or daily activities, shall be punished with imprisonment for a period of 4 (four) months or a fine rp 5,000,000.00 (five million rupiah). article 45 (1) anyone committing acts of emotional violence within the domestic sphere as referred to in article 5 letter b shall be punished with imprisonment of three (3) years or a fine of not more rp9,000,000.00 (nine million). (2) in terms of the act referred to in paragraph (1) committed by a husband against his wife or vice versa that does not cause disease or an obstacle to running the job position or livelihood or daily activities, shall be punished with imprisonment for a period of 4 (four) months or a fine rp 3,000,000.00 (three million rupiah). http://creativecommons.org/licenses/by-nc-sa/4.0/ 306 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia article 46 everyone who commit acts of sexual violence as referred to in article 8 letter a shall be punished with imprisonment of twelve (12) years or a maximum fine of rp 36,000,000.00 (thirty-six million rupiah). article 47 everyone who forced people who lived in the household had sexual intercourse as referred to in article 8 (b) shall be punished with imprisonment for a minimum of 4 (four) years and a maximum imprisonment of 15 (fifteen) years or a fine of rp 12,000 .000,00 (twelve million rupiah) or fine of not more rp300,000,000.00 (three hundred million rupiah). article 48 in the case of acts as referred to in article 46 and article 47 resulted in the victim received injuries not give hope will recover completely, disorder or psychiatric thinking for at least four (4) weeks of continuous or 1 (one) year are not consecutive respectively, fall or death of a fetus in the womb, or cause malfunction of reproduction, shall be punished with imprisonment of at least five (5) years and a maximum imprisonment of 20 (twenty) years or a fine of rp 25,000,000.00 (two twenty five million rupiah) and a maximum fine of rp 500,000,000.00 (five hundred million rupiah). article 49 shall be punished with imprisonment of three (3) years or a fine of not more rp15,000,000.00 (fifteen million), for every person who: a. abandoning others within the scope of the household as defined in article 9 paragraph (1); b. neglect others referred to in article 9 paragraph (2). article 50 besides crime referred to in this chapter judge can impose additional punishment in the form of: a. limitation of movement of the perpetrator intended to keep the perpetrator from the victim in the distance and time, as well as the restriction of certain rights of the perpetrator; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 307 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia a. determination perpetrator to undergo counseling program under the supervision of specific institutions. indonesian penal code (kuhp) article 351 1. persecution threatened with a maximum imprisonment of two years and eight months or a maximum fine of four thousand five hundred rupiah, 2. if the act results in serious injuries, the guilty is punishable by imprisonment up to five years. 3. if resulted in death, punishable by a maximum imprisonment of seven years. 4. with likened persecution deliberately damaging to health. 5. attempt to commit this crime is not punished. article 352 1. unless mentioned in articles 353 and 356, the persecution does not cause disease or an obstacle to run the job title or search, threatened, as light maltreatment, with a maximum imprisonment of three months or a maximum fine of four thousand five hundred rupiah. crime can be added a third for the person who committed the crime against the people who work on it or be subordinate. 2. attempt to commit this crime is not punished. article 353 1. persecution to plan in advance, is threatened with a maximum imprisonment of four years. 2. if the action was caused serious injuries, the guilt imposed maximum imprisonment of seven years. 3. if the act is guilty of death caused threatened with a maximum imprisonment of nine years. article 354 1. anyone who intentionally injures another person weight, punishable for committing aggravated assault to imprisonment for eight years. 2. if the act results in death, the guilty shall be sentenced to imprisonment of ten years. article 355 1. severe persecution carried out with a plan first, punishable by a maximum imprisonment of twelve years. http://creativecommons.org/licenses/by-nc-sa/4.0/ 308 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. if the act results in death, the guilty shall be sentenced to imprisonment for fifteen years lams. article 356 the penalties set forth in section 351, 353, 354 and 355 can be coupled with a third: 1. those who committed the crime against the mother, the father of a legitimate, his wife or his son; 2. if the crime was committed against official when or as a legitimate exercise of his office; 3. if the crime was committed by providing materials that are hazardous to life or health to eat or drink. article 357 in terms of sentencing for one of the crimes under articles 353 and 355, can be dropped revocation of rights under article 35 no. 1-4. article 358 those who deliberately participate in the attack or fight in which involved several people, in addition to the responsibility of each to what is typically carried out by him, threatened: 1. with a maximum imprisonment of two years and eight months, if as a result of the attack or fight was no serious injuries; 2. with a maximum imprisonment of four years, if no one died as a result. considerations imposition of penalties judge in the decision number: 2660/pid.sus/2015/pn mdn the onset of this case, namely, on monday 06 july 2015 at about 20:00 pm, or at least at some time in the month of july 2015, held at valentine in jalan mangga djamin ginting village district. terrain tuntungan medan is still within the jurisdiction of the district court of medan, roni sahputra sembiring have "doing act of physical violence within the domestic sphere resulting in illness or serious injury" to the victim witness afrianingsih (the legal wife of the accused in accordance with the marriage certificate dated october 22 2007), where the defendant works in the following way: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 309 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia on monday, july 6, 2015 around 14:00 pm, the defendant who is the husband of victim-witnesses coming to work his witnesses, then the defendant took the witness hamida daughter (child victim witness and defendant) and witnesses the victims staying at the hotel, and upon arriving in the room valentine hotel is located at jalan mangga djamin ginting village district. tuntungan medan medan, the next victim witness goes into the bathroom, but not long after the accused told the witness the victim out of the shower. then the witness victim and the accused fight where the victim witnesses at the time said the defendant "you're not jealous of times", then the defendant threatened the victim witness then took a screwdriver out of the back pocket of his pants and stuck a screwdriver it toward your chest to the left of the body of the victim witnesses but the witness victim tried to fight and parrying with both hands, so that the upper arm to the right and the accused also stabbed the screwdriver so that the left eye fence victim witness then fell onto the floor. consideration judge in the case is weighed, that the defendant based the indictment public prosecutor no. reg. case: pdm-1112/ep.2/tpul/mdn/09/2015, dated september 9, 2015 in which the accused have been charged and convicted of criminal acts within the scope of domestic violence that resulted in serious injuries and punishable as provided in article 44 paragraph ( 2) act no. 23 of 2004 on the elimination of domestic violence. conclusion whereas the legal protection of victims of domestic violence (domestic violence) by act no. 23 of 2004 on the elimination of domestic violence (law pkdrt) is in 1x24 (one twenty-four) hours commencing from knowing or receiving a report of violence in the home (domestic violence) that the legal consequences for the perpetrators of criminal acts of violence in the home (domestic violence) in the decision no. 2660 / pid sus / 2015 / pn mdn in accordance with the provisions of the law in this case article 44 paragraph (2) of law no. 23 of 2004 on the elimination domestic violence (law pkdrt), the defendant shall account for his actions in accordance with the decision handed down the judges are undergoing imprisonment for eight (8) years and pay a court fee of rp. 1000, (one thousand rupiah). that consideration of the judge in the decision number: 2660 / pid.sus / 2015 / pn mdn judges considerations have quite a lot, from the demands of the public prosecutor, the facts found in the trial, such evidence and testimony, the fulfillment unsurelement in accordance with article indicted and things burdensome and ease. and there is no justification and forgiving so convicted and punished severely. based on the above conclusions, this paper suggests that because of there are many people who are less aware of the act number 23 of 2004 on the elimination of domestic violence, then the parties concerned with the protection of victims of domestic violence need to improve their performance in education and socialization to the various layers public. so that women do not make up the majority of victims of http://creativecommons.org/licenses/by-nc-sa/4.0/ 310 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia domestic violence (domestic violence), then they are expected to know about the rights and obligations as a wife. in addition, victims of domestic violence (domestic violence) which most women must also be more willing to tell and report on the violence that happened to him, and not looking at violence in the home (domestic violence) as a family disgrace that must be covered. the imposition of penalties on perpetrators of criminal acts of domestic violence (domestic violence) must be firm, so that the future can prevent, reduce or even eliminate all forms of violence in the home (domestic violence). in the verdict, the judges are also expected to consider the condition of the victim, and thus the judges will impose as severe verdict to the defendant in proportion to the suffering experienced by victims of criminal acts of violence in the home (domestic violence). references a copy of the decision no. 2660 / pid.sus / 2015 / pn mdn. huraerah, a. (2012). violence against children. bandung: nuance scholar. http://www.siswamaster.com/2016/01/teori-keadilan-menurut-aristoteles-dancontoh.html. accessed on march 9, 2017 jamaludin, a.n. (2016). fundamentals of social pathology. bandung: pustaka setia cv. kansil, c. (2009). dictionary of legal terms. jakarta: gramedia pustaka. law no. 23 of 2004 on the elimination of domestic violence martha, a.e. (2003). violence women and the law. yogyakarta: uii press. mansur, d.a. & gultom, e. (2009). the urgency of the protection of victims of crime between norms and reality. jakarta: pt. radja grafindo persada. soeroso, m.h. (2010). domestic violence in perspective juridical-viktimologis. jakarta: sinar grafika. http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cdd91ba61f • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(2) 2020 273 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article the handling of criminal act of theft with violence by children of the directorate of criminal investigation of the central java regional police dhara ayu restuning tyas1, rodiyah2 1 directorate of general criminal investigation, central java regional police department, semarang, indonesia 2 faculty of law, universitas negeri semarang, indonesia  dharaayutyas@gmail.com cited as tyas, d.a.r., & rodiyah, r. (2020). the handling of criminal act of theft with violence by children of the directorate of criminal investigation of the central java regional police. journal of law and legal reform, 1(2), 273-278. doi: https://doi.org/10.15294/jllr.v1i1.35451 abstract the crime of theft with violence is one of the most frequent crimes or criminal acts in the community. it almost happens in every region in indonesia. they have the tendency to steal when the opportunity is present, then the perpetrators do it with no regard for time. however, in some cases, the theft is done in a certain time. it involves a condition where everyone will look for the right time to carry out their operations. it appears that in fact, we want to realize a handling of child cases. this handling has to pay attention to the needs of children, so that children affected by criminal cases are not harmed physically or mentally. the barriers experienced in law enforcement carried out by children include, legal regulations themselves, facilities and infrastructure, society, and culture. keywords: criminal acts, theft with violence, children. submitted: 26 december 2019, revised: 23 january 2020, accepted: 24 january 2020 journal of law and legal reform (2020), 1(2), pp. 273-278. doi: https://doi.org/10.15294/jllr.v1i2.35406. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:dharaayutyas@gmail.com http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 274 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 273 table of contents ………………………………………………………….. 274 introduction …………………………………………………………………. 274 method …………………………………………………………………………… 275 criminal act of theft with violence by children …………. 275 conclusion …………………………………………………………………….. 277 references ……………………………………………………………………... 278 introduction crimes could happen anytime and anywhere. the violation is not only committed on men and women, but also on children. nowadays, people always compete to get the best. if they do not get what they want, they will do everything to achieve their goals, including committing a crime. the crime is committed because of several factors including, the initial environment, heredity, socio-economic status, current living conditions, crises, and negative events. they commit crimes not only as a necessity of life, but also because of the ongoing time. the crime of theft with violence is one of the most frequent crimes or criminal acts in the community. it almost happens in every region in indonesia. the tendency of theft happens when the opportunity is present. then, the perpetrators do it with no regard for time. in some cases, the theft is carried out within a certain time. it involves a condition where everyone will look for the right time to carry out an operation. in the occurrence of a criminal act, there are two parties involved in it, the perpetrator and the victim. according to widiartana (2014: 4), in 1937, benjamin mendelsohn conducted a research on the victim's personality. compared with the study of crime which at that time was mostly done and was offender oriented, the study conducted by mendelsohn could be said to be a new breakthrough because with his research, mendelsohn tried to explain the criminal act seen from the perspective of the victim. actually, the problem of victims is not new. in general, it can be said that there is no crime without victims, although there are also some crimes without victims. even though there are also some crimes that occur without victims, in the sense that the victims of the crime are also the perpetrators themselves. for example, gambling and drug abuse in criminal law can be said to be criminal if the consequences of such actions cause a victim or have the potential to cause a victim. according to gosita (2018), victimology is a study that examines the problem of victims, the victim's victims, and the consequences of victims in studying crime. usually, people only pay attention to the components of the perpetrators, the law, and law enforcement officers. even if the victim factor is questioned, the study is not http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 275 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia carried out comprehensively and thoroughly. frequently asked questions in the study of crime are usually why a person commits a crime, what are the causes, how the actions of law enforcement officers in dealing with crime and so on. however, the role of victim access in crime is often forgotten. a crime, in general, must involve two parties, the perpetrator of crime and the victim. a crime is very likely to occur precisely because of the role of the victim, such as the attitude, behavior, and lifestyle of the potential victims. it often provides stimulation to the perpetrators to carry out his evil intentions. thus, the occurrence of the crime is not an absolute mistake of the perpetrators. however, the existence of such facts is not or less in gaining attention in the legal rules and people's views about crime. method this study uses qualitative methods. qualitative research is a research that intends to understand the phenomena about what is experienced by the research informants such as behavior, perception, motivation, actions, etc. holistically and by means of descriptions in the form of words and language, on a special natural context and by utilizing various natural methods (moleong, 2013: 6). this type of research uses empirical juridical which in other words is a type of sociological legal research and can also be referred to as field research. the research location uses in this study is the central java regional police. the focus in this study is the perpetrators of crime in the theft and investigators of the central java regional police. the main data sources in qualitative research are words and actions, and the rest are additional data (lofland in moleong 1988: 112). the data source in this study is the informant. the informant in this study is the central java regional police investigation team. the respondents referred to in this study are the teams involved in the problem of criminal acts of theft with violence (investigator or police). the data analysis techniques used is an interactive model that is done by means of data collection, data reduction, data presentation, and data verification (miles and huberman in rachman, 2012: 200-201). criminal act of theft with violence by children the essence and meaning of law enforcement lies in the activities of creating and maintaining the peace of association of life. the success of law enforcement may be influenced by several factors that have a neutral meaning, so that the negative or positive impact lies in the contents of these factors. these factors have a closely related relationship, which is the essence and benchmark of the effectiveness of law enforcement. these factors are law (constitution), law enforcement, facilities, society, and culture. it causes theft with violence in the jurisdiction of the central java regional police. economic factor is a result of the occurrence of theft in the http://creativecommons.org/licenses/by-nc-sa/4.0/ 276 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia jurisdiction of the central java regional police. it is based on the results of the study done by the researcher of the respondents of general investigation criminal investigators. these economic factors also occur due to their low level of education. they do not have special skills or expertise to be able to compete in society to find a decent job with sufficient income to meet their needs. in the perspective of the environmental factors, the perpetrators of theft in the jurisdiction of the central java regional police have an average basis of faith that is lacking. since childhood, they are not equipped with the correct religious teachings by their parents. those who were not equipped with religious teachings from childhood are also caused by their birth from broken families, and the weak selfdefense of the perpetrators in adjusting themselves in their social relations and the existence of social jealousy in their environment. the rich get richer, and the poor get poorer. the politics of criminal law (criminal law policy) is one of the efforts in overcoming crime, in rational enforcement of criminal law. the rational criminal law enforcement consists of three stages, the formulation stage, the application stage, and the execution stage. 1. formulation stage is the stage of criminal law enforcement (in abstracto) by the legislative. in this stage, the legislator conducts activities to choose values that are in accordance with the present and future circumstances and situation. then, they formulate it in the form of regulations in criminal legislation to achieve the best criminal law results in the sense of meeting the requirements of justice and effectiveness. this stage can also be called as the legislative policy stage. 2. application stage is the stage of criminal law enforcement (the stage of applying criminal law) by law enforcement officials starting from the police, the attorney's office to the court. at this stage, the law enforcers enforce and apply criminal legislation that has been made by the legislative. in carrying out this task, law enforcement officials must uphold the values of justice and usability. this seco nd stage can also be called as the judicial policy stage. 3. execution stage is the concrete enforcement stage (implementation) of criminal law by the criminal implementing apparatus. in this stage the criminal implementation apparatus has the duty to enforce the criminal rules that have been made by the legislators through the application of the criminal law determined by the court. the implementing apparatus in carrying out their duties must be guided by the criminal legislation that has been made by the legislators and the values of justice and usability. the three stages of criminal law enforcement, seen as a rational effort or process that is deliberately planned to achieve certain goals. clearly, it must be an unbroken chain of activities that is rooted in values and leads to crime and punishment. violent theft crimes often occur in the environment around us. therefore, the way to deal with these crimes varies and is adapted to the circumstances in a community. the culture, the government, and its policies also influence the ways of overcoming the crime of theft with violence, to overcome these crimes it is necessary to have an effort or prevention, including preemptive efforts. here are the initial http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 277 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia efforts made by the police to prevent criminal acts. these efforts are to instill these values internalized in a person. the target to be achieved is the creation of awareness, alertness, deterrent power and the establishment, and creation of a condition of behavior and norms of life that is free from negative behavior. this activity is basically in the form of fostering and developing a community's lifestyle. the method carried out by the police institution is to provide counseling on the impact caused by the penetrator for himself as well as for his family and future as citizens. efforts are made to prevent the occurrence of violent crime through the control and supervision of official channels as well as direct supervision of illicit trafficking routes so that the potential for such crimes does not develop into factual threats. the preventive efforts (prevention) is the prevention efforts carried out systematically, planned, integrated and directed with the aim that the perpetrators of theft crimes with violence do not arise. these preventive efforts are a foll ow-up of preemptive efforts which are still in the level of prevention before the occurrence of crime. this prevention effort also carries actions that narrow the space for movement. these countermeasures are carried out systematically, planned, integrated and directed, good cooperation is needed in this case and the community. conclusion the factors causing the occurrence of theft crimes by violence committed by children in the jurisdictions of central java regional police are caused by 3 main fact ors, namely economic factors, environmental factors of perpetrators and law enforcement factors. in addition to these 3 main factors, there are also a number of supporting factors that influence the occurrence of violent theft with violence in the jurisdic tion of the central java regional police. these supporting factors are the perpetrators' educational factors, geographical factors or the location of an area, and victims, especially women, who are mostly targeted by the perpetrators. mitigation efforts that have been carried out by the central java regional police to reduce the crime of theft by violence are in the form of pre-emptive, preventive and repressive efforts. this effort is expected to reduce and give a deterrent effect to the perpetrators of c rime, so as to provide a sense of security to the community. in reducing the crime rate of theft with violence, they must have the support of all parties, especially the public and law enforcement officers. in advising the law enforcement, especially for perpetrators of theft by violence, is expected to be processed in accordance with applicable law and the application of severe sanctions, so that perpetrators do not repeat their actions. it is desirable for the police and other law enforcers to be consistent with the existing rules. http://creativecommons.org/licenses/by-nc-sa/4.0/ 278 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references mangunhardjana, a. (1986). pembinaan: arti dan metodenya. yogyakarta: kanisius miles, m.b., & huberman, a.m. (1992). analisis data kualitatif (buku sumber tentang metode-metode baru). jakarta: ui pres. moeljatno, m. (2000). asas-asas hukum pidana. jakarta: rineka cipta. moleong, j. l. (1988). metodologi penelitian kualitatif. bandung: remaja rosdakarya moleong, l.j. 2007. metode penelitian kualitatif. bandung: remaja rosdakarya. muladi, m. (1998). teori-teori dan kebijakan pidana. bandung: p.t alumni. packer. h.l. (1968). the limits of the criminal sanction. california: stanford university press. prodjohamidjojo, m. (1997). memahami dasar-dasar hukum pidana ii. jakarta: pradnya paramita. rachman, m. (1993). strategi dan langkah-langkah penelitian. semarang: ikip semarang press. sahetapy, j.e. (1997). viktimologi sebuah bunga rampai. jakarta: pustaka sinar harapan. saleh, r. (1983). perbuatan pidana dan pertanggungjawaban pidana. jakarta: aksara baru. susanto, s.i. (2011). kriminologi. yogyakarta: genta publishing. http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cab8e72007 • 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: 7fbf23cdd921a61f • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(3) 2020 479 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article urgency of waqf land registration in the context of indonesian land reform saiful anwar postgraduate program, faculty of law, universitas negeri semarang, indonesia  saiful1501anwar@gmail.com cited as anwar, s. (2020). urgency of waqf land registration in the context of indonesian land reform. journal of law and legal reform, 1(3), 479-492. doi: https://doi.org/10.15294/jllr.v1i3.36702 abstract land registration ordered by government through law number 41 year 2004 about waqf aims to make society to be discipline in implementing of waqf practices. beside the public order, the registration of waqf land has a positive urgency for waqf land. either the urgency of waqf land registration normatively, sociologically, or juridically. however, the fact shows that the enforcement indications are still minimal. this fact is due to the lack of nadzir and wakif (who donates property) understanding about the urgency of waqf land registration. they assume that waqf land that has already recorded administratively by government institution has already registered. while the provisions of agrarian law (lands) are not the case. the interpretation of new land registration is listed in article paragraph 1 of government regulation number 24 year 1997 which requires legal force through the ratification of authority official registration, because it will be used as evidence data. the implementation of land registration will produce evidence sign of land called certificate. keywords: urgency; certification; waqf; land certification journal of law and legal reform (2020), 1(3), pp. 479-492. doi: https://doi.org/10.15294/jllr.v1i3.36702. issn (print) 2715-0941, issn (online) 2715-0968 submitted: 18 october 2019, revised: 15 january 2020, accepted: 28 march 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:saiful1501anwar@gmail.com https://doi.org/10.15294/jllr.v1i3.36702 https://doi.org/10.15294/jllr.v1i3.36702 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 480 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 479 table of contents ………………………………………………………….. 480 introduction …………………………………………………………………. 480 method …………………………………………………………………………… 482 urgency of waqf land registration ……………………………... 482 i. normative urgency of waqf land registration …….. 485 ii. sociological urgency of waqf land registration … 487 iii. juridical urgency of waqf land registration ……..… 488 conclusion …………………………………………………………………….. 490 suggestion ……………………………………………………………………... 491 references ……………………………………………………………………... 491 introduction the existing of law number 41 year 2004 about waqf and completed with government regulation number 42 year 2006 about the implementation of law number 41 of 2004 about waqf marks the management practices of waqf develop quickly. it means that, in indonesian, people interest in donating assets increases with time. according to the statistic from the islamic community guidelines of the ministry of religion republic indonesia reached 353.646 with an area of 49.026 ha or equivalent to 490.260.000 m2 (siwak.kemenag.go.id). this land spreads in various regions throughout indonesia with different point and level with the highest position of java island. west java occupies in the top position with 70.815 points, central java is in the second position with 96.331 points, and east java with 64.016 points. the emerging of law number 41 of 2004 about waqf basically used as community guideline or administrative basis on waqf management so that it is useful productively (budiman, 2015: 16). the key role of waqf management not only put on nazir and solid work team ability to maximize the waqf potential. however, administrative obedience as regulated in law is the basic capital that must be implemented first (hasmi, 1987: 19). this condition can be interpreted that every waqf land management must be based on applicable regulations. however, in the reality, from the number of 353.646, as already revealed by indonesian waqf agency (bmi) there were 148.447 waqf land points have not certificate yet. it is because they do not register their waqf lands (siwak.kemenag.go.id). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 481 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the majority of the general public is still confused in understanding the meaning of waqf land registration. according to him, if a plot of land has been recorded administratively by government institution, they assume that their land has already registered. while the provision of agrarian law (lands) is not in the case. the explanation of new land registration is contained in the article 1 paragraph 1 of government regulation number 24 year 1997. implementing of land registration in modern society is a state task carried out by the government for people’s interest, in providing legal assurance in land sector. some of its activities in the form of land physical data collection whose rights are registered, can be assigned to the private sector. but, to obtain the legal force, the results require the legalization of an authorized registration official, because it will be used as evidence data (harsono, 2008: 72). the implementation of land registration will produce land evidence called certificate. it is the realization of the objectives of the loga. the obligation to conduct that registration, principally charged to the government and its implementation carried out in stages, region by region based on consideration of the availability of the registration basic map (sumardjono, 2001: 181). there is an indication that land registration process in the regional leadership of muhammadiyah semarang has not all followed the provisions of law number 41 of 2004 about waqf and other regulation of implementing about waqf. this can be seen from the lack of concerning by the leadership of muhammadiyah semarang to manage and administer waqf lands, it means that leadership of muhammadiyah semarang only accept people who come to donate, but leadership of muhammadiyah semarang did not provide directives previously that should be done by people in order to give motivation to them to donate the land, including the procedure for registering waqf land. in addition, there is a lack of understanding of waqf managers (nazhir) in managing waqf land. that’s fact can occur because some of people who do not know, understand, obey the provision regulation of waqf well. public ignorance of a statutory regulation especially law number 41 year 2004 about waqf, may be caused by the luck of waqf land socialization to public. seeing this phenomenon concerning the waqf land which is not registered must be evaluated on how people can obey the applicable law. as in way not to complicate in administration matter. however, the question is, will the people obey or disobedient in obeying the applicable waqf law? this condition must be answered by knowing in advance why the waqf land is not registered and how the legal implication for the waqf land itself. http://creativecommons.org/licenses/by-nc-sa/4.0/ 482 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as intended that the purpose of recording waqf land so that the existence of waqf land can be protected and supervised from prohibited practices in law. the article 40 of law about waqf states that waqf property that has already donated, it is prohibited used as assurance, confiscated, granted, sold, bequeathed, exchanged, and transferred in the form of other rights transfer. method this research uses a qualitative research approach. qualitative research is a research that focuses on the general principles which underline the manifestation of phenomenon in human life, or patterns of analysis of the socio-cultural by using culture and society concerned to obtain overview of the prevailing patterns. the basis of qualitative approach emphasizes the human behavior pattern, as seen from “frame of references” of the subjects themselves, so individual as central subject need to be understood and it is as a unit analysis and place them as part of the whole (holistic) (ashshofa, 2010: 21). while, the type of this research is juridical-sociological research. juridical-sociological legal research is a research that examines law aspects and it is compared with social aspect or social phenomena in society. it is due to the law cannot be separated from social condition that exist in society (wignjosoebroto, 2009:133). the focus includes discovering why the urgency of waqf land registration in perspective of law number 40 of 2004 about waqf by taking a research location at regional leadership of muhammadiyah semarang. the main data source in qualitative research is data source that collected directly through respondents or informants including interview with the regional leadership of muhammadiyah as nazhir who manage the waqf land and waqif as the land giver to be donated. data analysis techniques used is an interactive model that is conducted by means of data collection, data reduction, data presentation, and data verification (miles dan huberman on rachman, 2012: 200-201). urgency of waqf land registration actually, the existing of the regulation about waqf is inseparable from people interest. it is due to the waqf regulations are showed as a guideline for society in implementing the waqf practices, such as: registration, management, and supervision of waqf property. in addition, the existing waqf regulations are expected to provide strong http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 483 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia legal basis, particularly the existence of legal assurance to nazhir, waqif and waqf allotment. the question is, how can nazhir manage the waqf lands? the answer of that question is by registering the waqf land to the authority institution. without the existing of the land waqf registration, a nazhir cannot manage the land waqf because he has not carried out waqf pledge. the land waqf registration is one of the most basic things in practicing of waqf. the waqf will not be valid if it is not registered. a nazhir will not be able to manage waqf if he has not carried out waqf land registration. registration is opening door in implementing the management and supervision of waqf land administratively. the land registration is conducting based on simple, safe, affordable, up-todate and open-ended principles. the principles underlying something happens and it is the basis of an activity, this is also applied on the land registration. therefore, in the land registration there are principles that must be the basis for conducting land registration. in article 2 of government regulation number 24 of 1997 states that land registration conducted based on simple principle. the government regulation number 42 year 2006 article 12 paragraph 1 stated that nazhir must administer, manage, develop, supervise, and protect the waqf property. therefore, land waqf and religious assets are very urgent to be certified. to obtain waqf land certificate also must register the land waqf formerly. the procedures of the waqf land registration are described chronologically as follow (nurdin, 2015: 8-9): a. individual/ organization/corporation who donate their own land (as candidate of waqif) are required to come by themselves in front of the waqf pledge certificate maker official (ppaiw) to conduct the waqf pledge. b. before the waqf pledging, the candidate of waqif submits the letters to ppaiw formerly. the letters are as follows: 1) certificate or evidence sign of land ownership. 2) statement letter from the candidate of waqif regarding the land ownership truth and it is not in the lawsuit and force filled by the village head and local sub-district head. 3) land registration certificate 4) permission letter from the regent or the mayor c.q. land office of local district, it is mainly in the urban planning and master plan city context. c. ppaiw examines the documents and its requirements whether they have fulfilled the extrication of land rights (to be donated), examined witnesses and legalized nazhir formation. d. in front of ppaiw and two witnesses, waqif pledged or said that waqf desire to the nazhir which had been validated. the waqf pledge was pronounced http://creativecommons.org/licenses/by-nc-sa/4.0/ 484 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia clearly, firmly, and appeared in written form (w.1 form). whereas for those who could not pronounce it (dumb), so they could express their desire with a gesture and then fill in the blank of w.1. if the waqif cannot meet with the official of waqf pledge certificate maker (ppaiw), so the waqif can make written pledge with the approval of religion ministry in the area of waqf land and then the certificate or the document is read in front of nazhir after getting approval from the religion ministry. furthermore, the signing of waqf pledge (w.1 form) e. ppaiw made the waqf pledge certificate (w.2 form) in triplicate with material according to the applicable provisions and then made copies of the waqf pledge certificate (w.2.a) in four copies. the latest one month after the waqf pledge certificate was made and each sheet sent to the bpn and others, with the distribution regulation, among others: 1) the waqf pledge certificate a) the first sheet saved by ppaiw b) the second sheet as the attachment of application letter for waqf land registration to the waqf office at the district (w.7) c) the third sheet for the local religion court 2) the waqf pledge certification copies a) the first sheet for waqif b) the second sheet for nazhir c) the third to local religion department office d) the fourth sheet for the local village head after the procedures of waqf land registration, then waqif is considered to be administratively valid and nazhir can conduct his role in managing the waqf land. basically, the registration of waqf land is very urgent. the urgency of waqf land registration generally provides the protection to the waqf land assets in order to maintain its existence. it means that the urgency of the waqf land registration in order to the waqf land protected by the certificate the result that there is no administrative mall or practice mall in the practicing of waqf land management. therefore, the land which had been registered must be recorded to obtain the waqf land certificate. there are three points of urgency in waqf land registration namely normative, sociological, and juridical. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 485 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia i. normative urgency of waqf land registration normative urgency can be seen in law which requires to conduct the assets of waqf land registration. the waqf land registration also includes the process of the waqf land certificate publishing as legal and strong evidence of waqf land. the validity of waqf certificate is very important. minimally, by having waqf land certificate can provides ownership of a legality and legal force to the parties whose identities mentioned in the waqf land certificate. the waqf land registration and certification can prevent disputes and become strong evidence. this situation illustrates that a certificate is interpreted as a document which is beyond the control of the waqf land registration administration system. it means that waqf land certificate is a document or an archive of land registration authority that proves the waqf land. due to the waqf certificate is the final result of the waqf land registration in the certificate itself contains a history of ownership of waqf land. transferring rights process then carried out by certificate. the registration of land deed official (ppat) where the waqf land registration gives a status to the owner of waqf land to a legal nazhir and his name is listed in the certificate. then nazhir the owner of the waqf land certificate as the holder of ownership rights upon the waqf land. the institution that regulate and manage the land issues are carried out by the land office called the national land agency (bpn) which is established through presidential decree number 26 year 1988. the national land agency (bpn) has the task of carrying out measurements, and mapping and registering land in an effort to provide certainty of rights in the land sector. from the instructions stated in the article concerning the instruction of waqf land registration, it can be seen that the purpose of waqf land registration is to provide the legal status toward the land. a legal status used as proof that waqf land has implemented and fulfilled administrative requirements so that waqf land is legally valid to be managed properly. it means that the urgency of waqf land registration has legal assurance. legal assurance is one of the most important that must be achieved because of it, so it will achieve the orderliness and regularity of society. the assurance itself essentially is the main goal of the law. the expectation to obtain guarantee of legal assurance of waqf land certainly must be registered indeed in accordance with the law number 5 of 1960 about agrarian principal. http://creativecommons.org/licenses/by-nc-sa/4.0/ 486 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the legal assurance of waqf pledge is a guarantee that a legal event has occurred. among the manifestations of legal assurance is the existence documentary evidence (written evidence) in an authentic certificate. legal assurance in the land legal is very important particularly regarding the ownership of land rights evidence. in the article of law number 5 of 1960 about agrarian principle states as follows: 1. to certify the legal assurance, land registration is carried out by the government throughout republic of indonesia territory according to the provisions regulated by the government regulation. 2. the registration referred to the article paragraph (1), include: a. measuring, mapping, and accounting land; and b. land rights registration and transfer. giving the applicable certificate as the solid proof. 3. land registration is carried out by considering the state and society conditions, socio-economic traffic requirement and the implementation possibility, according to considerations of the agrarian ministry 4. in the regulation of government is regulated the costs involved with the land registration referred to paragraph (1) above, provided that poor people are freed from costs financing. the certify of legal assurance as the normative urgency of land registration includes: 1. the assurance of right status listed right status is a status attached to the land. it means that by registering the waqf land, it will be able to be known the right status which is registered. whether the satutus of the lands are ownership right, business use right, building use right, use right, mortgage right, ownership right on flats or waqf land. 2. the assurance of right subject through the registration of waqf , subject of the land can be known. it means that land registration will be known the holder of the right land. this is very important, either the holder of the right land is individual (indonesian or foreigner domiciled in indonesia), a group of people jointly hold the right land, or public legal entity . 3. the assurance of right object article 16 of law number 41 year 2004 about waqf states that waqf property consist of immovable and movable property. land as the immoveable property must be clearly objected. the purpose of land includes the locations, land boundary, and land area measurement. therefore, through land http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 487 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia registration, it will be known the location, land boundary, land area measurement clearly. the certainty of object such waqf land measurement used as waqf land legality, the clarity of waqf land location also used as the effort in managing the waqf land. ii. sociological urgency of waqf land registration sociological foundation illustrates that the behavior instructed in a regulation established aims to complete the society’s need in various aspects. the urgency of waqf land registration shown sociologically that in order to waqf land has legal status. this aims to avoid the feasibility of conflict that will occur in the future (supriadi, 2007: 135). one of the issues and the implications of waqf management are arising conflict between waqf certificate with inheritance law that cannot eliminated where the process of settlement requires a deep examination. therefore, to avoid that matter, it is necessary to control the waqf regulated in presidential instruction number 1 of 1991 about islamic law compilation, law number 41 year 2004 about waqf, government regulation number 42 year 2006 about waqf. waqf land ownership which has already regulated to publish the waqf land. however, there are people do not carry out it, such still many people who do not register their waqf land, consequently they do not have legal status which can cause conflict in the future. as in muhammadiyah leadership (pdm) semarang which has already identified by researcher has not registered and certified yet. this condition be able to arise various problems in the future. for example: the owner of waqf land inheritor states that his parents do not inherit the land. generally, waqf property that is not registered cause the waqf land do not recorded properly and will result disputes when the waqif has passed away, because between waqif and nazhir do not have document that strengthen the position of both parties. if it occurs, then there is no authority party who act as an intermediary of clear and strong data authentic. the waqf land also often withdrawed back by inheritor who deviate from waqf pledge, inheritors deny the waqf pledge and they do not give known by their parents. inheritor often discuss the evidence sign both authentically and under-hand their parents (waqif) truly have already inherited their right land to nazhir. http://creativecommons.org/licenses/by-nc-sa/4.0/ 488 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this explanation strengthens that waqf land registration sociologically is very urgent. therefore, in implementing of waqf it is not enough to rely on trust to nazhir for managing waqf land. it also needs to carry out some procedures regarding registration and certified of waqf land. waqf land registration also includes the publishing of waqf land certificate as a strong evidence. the strength of the use waqf land certificate enactment is very important, at least the existence of waqf land certificate provides legal entity to the owner and to the nazhir whose name are listed in waqf land certificate. the publishing of waqf land certificate can prevent land disputes because it is protected from arbitrary action by anyone including inheritor who try to withdraw waqf land back. the giving of waqf land certificate is intended to prevent land disputes (mustafa, 1988: 54). the consequence toward waqf land which already certified is a land that has legal assurance and protection, it can minimize conflict that will occur against waqf land. sociological urgency of waqf land registration also requires role of the national land agency (bpn) in registering waqf land based on the task that the national land agency of republic indonesia in order to cope the disputes, conflict and land case to realize land policies for justice and welfare of society. the management of assessing and handling land case is a mean to resolve the disputes, conflict and land case as well as minimize the potential of arising land cases. iii. juridical urgency of waqf land registration the urgency of waqf land registration juridically explains that registration of land used to supervise the existence of waqf land from prohibited practices in the law number 41 of 2004 about waqf. according to law number 41 of 2004 about waqf, the properties that can be donated consist of immovable and movable properties. land is immovable property that can be donated. land which already donated cannot be sold or guaranteed by the parties to the other parties as regulated in law of waqf. in law article 40 number 41 of 2004 about waqf states that properties which already donated are prohibited to be guaranteed, seizure, given, endowed, or transferred in the other right transfer form. that certainty is excepted if the land which already donated is used for public interest in accordance with general spatial plan (pupr) based on the provisions of applicable law regulation and it is not against to islamic law. this transformation includes the public interest with how many people can use and access the infrastructure, but it is also related to the benefits http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 489 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of infrastructure for societies welfare and progress (muhtada & suhadi, 2019: 69). in addition of these expectations, waqf land may not be treated as already prohibited by the law. the practices are the goal of urgency of waqf land registration juridically which explain that waqf land registration is shown to get supervision from related parties from prohibited practices by the law. supervising in waqf practice is absolute thing to do. during this time, the waqf practices in various waqf institutions by nazhir receive less serious supervision. it results abandoned waqf land even it can cause the waqf land lost. thus, seeing these waqf practices increasingly advance, the supervision role of waqf land cannot be ignored. there are two forms of waqf land supervisions, namely local supervision by society and a competent government. the supervision of society carried out by waqf property council or social organization in accordance with administrative and financial feasibility standard the provisions of which are taken from applicable standard in the market. the supervision of society can be in the forms of nazhir, wakif, or community in general. in addition, this supervision can be called more effective than supervision carried out by the government, because it is local, particularly for each waqf property regarding to people who have the rights on waqf land with its objectives directly. whereas, the government supervision is a form of periodic external supervision. administratively, government supervision of waqf land supervise waqf financial and administration by certain standard and production taken from administration supervision company that have similar activities. financial supervision from government also work in accordance with the principles of external supervision conducted by financial auditor and regulatory examiner. the ministry of waqf who conduct two forms of supervision both in term of financial or administrative matters to the waqf manager from private party must use a competent specialized institution and based on scientific facts from institution activities working with the market system (hasanah, 2012: 76). government supervision conducted by the ministry of religion and indonesian waqf board. the ministry of waqf which conducts these two forms of supervisions both in term of financial and administrative matters to the waqf manager from private party must use a competent specialized institution and based on scientific facts from institution’s activities working with the market system. the two forms of these supervision include both administrative and financial aspect simultaneously, either from the procedure of waqf land registration until distribution of the result from the waqf management or the allocation of waqf assets. http://creativecommons.org/licenses/by-nc-sa/4.0/ 490 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia supervision of society or government aim in order to waqf land can be managed and well-developed and be able to participate in supporting societies welfare. in addition, the most important thing in supervising is prevent the prohibited practices by the law. the urgency of waqf land registration juridically is supervise to the waqf land assets. waqf land supervision is regulated in article 63 of law number 41 of 2004 about waqf. in that article explains that supervision of waqf management by the ministry of religion by involving indonesian waqf board (bwi) in terms of coaching and heeding advice and considering indonesian ulema council (mui) so that the objectives and function of waqf implementation can be achieved. the ministry of religion by involving indonesian waqf board can work together with social organizations, experts, international agencies and other parties deemed necessary for coaching to waqf management. whereas, in the waqf management supervision, the ministry of religion can use public accountants. furthermore, in article 65 in law number 41 of 2004 about waqf states that in conducting supervision, the ministry may use public accountant. more detailed in the article 56 of government regulation number 42 year 2006 explains that supervision of waqf land can be active or passive. supervision carried out by the government actively by examining the nadzir or waqf land managers at least once a year. while the passive supervisor, the government carried out by observing on various report which conveyed by nadzir in accordance with waqf management. in this case, societies also have rights to report on waqf management by nazhir to the government. the government can apply independent public accountant services in examining of waqf land supervision. basically, waqf land supervision requires the participation of some stockholder involved. the contribute participation not only involve certain people, but also involve poor group, such as people who follow contribution (dani, rodiyah, indah, & waspiah, 2018: 3). conclusion based on the result of this research on the urgency of waqf land registration in law perspective number 41 year 2004 about waqf by the regional leadership of muhammadiyah semarang, from the result and the explanation of research can be concluded as follows: 1. normative urgency of waqf land registration gives legal assurance. legal assurance used to understand the certainty of right list includes right changes, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 491 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia right subject which include landowner and right object which include the location and wide land. subject certainty of land will determine the content of waqf pledge certificate and waqf land certificate. 2. sociological urgency of waqf land registration used in order to waqf land has legal status. it aims to prevent disputes feasibility that will occur in the future. one of issues and the implications of waqf management that often arise is the existence of conflict against waqf certificate with inherit law which cannot be lost which the process of settlement requires deep examination. therefore, to avoid that matter needs to conduct the publishing of waqf land that is regulated in presidential instruction number 1 about waqf, government regulation number 42 year 2006 about waqf. 3. juridical urgency of waqf land registration states that juridically land registration used to supervise the existence of land from prohibited practices in law number 41 year 2004 about waqf, that properties which already donated consist of immovable and movable properties. land is immovable property that can be donated. the land which already donated may not be sold or guaranteed by anyone to the other parties which is regulated in law of waqf land. suggestion related to the research conducted, author provides suggestions to be used as input and consideration matter that are useful for interested parties, among others: 1. a nazhir should conduct his duty in managing waqf administration, include the most important thing is to register waqf land to the authority institution, thus waqf land has legal entity. 2. a waqif, someone who donate his properties to be donated for religion need and public welfare. as a state of law, any legal action must agree with law. therefore, waqif needs to learn more about waqf procedures. references ashshofa, b. (2010). metode penelitian hukum. jakarta: rineka cipta harsono, b. (2008). hukum agraria indonesia. jakarta: djambatan hasanah, u. (2012). urgensi pengawasan dalam pengelolaan wakaf produktif. alahkam 22(1), 67-82. http://creativecommons.org/licenses/by-nc-sa/4.0/ 492 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia hasmi, s.a. (1987). management of waqf: past and present in management and development of awqaf properties. proceeding of the seminar, jeddah: islamic research and training institute, islamic development bank kemenag. siwak.kemenag.go.id muhtada, d., & suhadi, s. (2019). transformation of the meaning of public interest in the indonesian regulations on land acquisition: a sustainable development perspective. advances in social science, education and humanities research 358, atlantis press. mustafa, b. (1988). hukum agraria dalam perspektif. bandung: remaja karya nurdin, n. (2017). tata cara pencatatan harta benda wakaf (petunjuk teknis bagi nadzir wakaf). retrieved from www.sumsel.kemenag.go.id (21 january 2020). rachman, m. (1993). strategi dan langkah-langkah penelitian. semarang: ikip semarang press. republic of indonesia. islamic law compilation, kompilasi hukum islam (khi). republic of indonesia. (2006). peraturan pemerintah no 42 tentang pelaksanaan undang-undang nomor 41 tahun 2006 tentang wakaf republic of indonesia. (2004). undang-undang nomor 41 tahun 2004 tentang wakaf republic of indonesia. (1981). undang-undang nomor 8 tahun 1981 rodiyah, r., muhtada, d., utari, i.s., & waspiah, w. (2018). village bureaucracy reform in democracy and autonomy era in indonesia: study of the establishment of laws and regulations method by irr model. south east asia journal of contemporary business, economics and law, 17(4), (december) issn 22891560 sumardjono, m.s.w. (2001). kebijakan pertanahan antara regulasi & implementasi. jakarta: kompas supriadi, s. (2007). hukum agraria. jakarta: sinar grafika wignjosoebroto, s. (2009). ragam-ragam penelitian hukum. in sulistyowati irianto & shidarta. (eds). metode penelitian hukum: konstelasi dan refleksi. jakarta: yayasan obor indonesia. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.sumsel.kemenag.go.id/ journal of law & legal reform volume 2(1) 2021 65 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article comparison of the law of contract between islamic law and indonesian law atharyanshah puneri iium institute of islamic banking and finance (iiibf), malaysia  athpun@gmail.com cited as puneri, a. (2021). comparison of the law of contract between islamic law and indonesian law. journal of law and legal reform, 2(1),65-82. https://doi.org/10.15294/jllr.v2i1.39036 abstract in every legal transaction, contract is the crucial things that must be made between all the parties. because the contract is the realization of the agreements between the parties. and that contract are binding the parties inside the agreements. the purpose of this paper is to analyze the law of contract from two different laws, which are islamic law and indonesian law. it can be found that there are some similarities as well as differentiation between islamic law and indonesian law when it comes to governing about contracts. keywords: contracts law; islamic law; indonesian law journal of law and legal reform (2021), 2(1), pp. 65-82. doi: https://doi.org/10.15294/jllr.v2i1.39036 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 15 june 2020, revised: 11 september 2020, accepted: 16 november 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i1.39036 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 66 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 65 table of contents ……………………………..…...…………………..….. 66 introduction ………………………………….……………...………………. 66 the law of contract in islamic law ………………………………. 67 the law of contract in indonesian law ………………………... 72 comparasion between the law of contract in islamic law and indonesian law ………………………………………………... 78 conclusion …………………………………………………..………………… 80 references …………………………………………………………………...… 80 introduction in every legal transaction, contract is the crucial things that must be made between all the parties. because the contract is the realization of the agreements between the parties. and that contract are binding the parties inside the agreements. or it is safe to say that the contract can be said as the “rule of the game” between all the parties. in a business, contract is one of the vital importance to a business organization. most of their business performed by the making of contracts, be they with the customers, suppliers, or employees. a contract may be defined as an agreement, enforceable at law, between two or more persons to do or refrain from doing some act or acts; the parties must intend to create legal relations and must have given something or promised to give something of value as consideration in return for any benefit derived from the agreement (lucas, 1998). charles l. knapp and nathan m. crystal defined law of contract as our society’s legal mechanism for protecting the expectations that arise from the making of agreements for the future exchange of various types or performance, such as the competence of property (tangible and untangible), the performance of services, and the payment of money (knapp & crystal, 1993;nachatar, hussin, & omran, 2010; smits 2017; khairandy 2011; ningsih & disemadi, 2019; mahmod, azmi, islamil, daud, & napiah, 2019; sulistyarini, budinono, winarno, & koeswahyono, 2018; muhammad, saoula, issa, & ahmed, 2019; ilmih & zulkarnain, 2019). the definition from charles l. knapp and nathan m. crystal on above is defining the law of contract from the mechanism aspect or the law procedure point of view. the aim from this mechanism is to protects the hopes that arise from the making of an agreement between the parties, such as on the performance of services. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 67 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in a sum, contract can be defined as an act of law, where one or more people are binding himself or binding himself to the other person to do something or to give something (hernoko, 2018). and there are rights and obligation for the parties to be fulfill which are arise from the contract. no matter which law is being applied, contract is still one of the vital importance in legal transaction, even in islamic and indonesian law. because without contract, every legal transaction can be considered as an illegal act. so, in this paper i will writes about how islamic and indonesian law regulating the contract, what are the comparison between the islamic law and indonesian law in terms of the law of contracts and also reviewing one case about the dispute in contract which happens in one of the syariah bank in indonesia. the law of contract in islamic law i. definition of contract in islamic law at least there are 2 terms on al-qur’an which are related to agreement, the first one is al-‘aqdu (akad) and the other one is al-‘ahdu (promise). from the terminology point of view, akad means bond, or binding. it was said bond (al-rabth) because it was means to gather two of the end of the ropes and binding one end to another end so both of them can be united and becomes like a complete rope (mas’adi, 2002). the word al‘aqdu is being mentioned in surah al-maidah: verse (1) which said: …الَّذيَن آَمنوا أَوفوا بِالعُقودِ يا أَيَُّها that means “o you who have faith! keep your agreements…” from the translation we can get explanation that human (especially for those who have faith) are being asked to fulfill their akad.” meanwhile for the word al-‘ahdu it was being stated on surah ali imran verse (76) which have said: َ يُِحبُّ الُمتَّقينَ بَلٰى َمن أَوفٰى بِعَهِدِه َواتَّقٰى فَإِنَّ َّللاَّ that means “yes, whoever fulfills his commitments and is wary of allah —allah indeed loves the godwary.” from the translation, we can get the explanation from that verse is allah is like people who are keeping their promise and being devoted. http://creativecommons.org/licenses/by-nc-sa/4.0/ 68 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia all of the jumhur ulama or the islamic law scholar defined akad as: “connection between ijab and qabul which can be accepted by syara’ and it caused legal consequences to the object” (mas’adi, 2002). abdoerraoef (1970) said that contract is happens through three stages, which are: 1. al‘ahdu (promise), which are statement from someone to do or not to do something and have no connection with someone else’s will. this promise is binding someone who are stated that he or she will fulfill their promise. 2. consent, which is the statement from the second party to do or not to do something as a reaction to the promise that was being stated by the first party. those consent must be according to the promise from the first party 3. if there are two promises already runs by both parties, then something that called ‘akdu’ from surah al-maidah is being happens. ii. elements of the contract from the definition of akad which are described previously, we can get that there are 3 elements in akad as emphasized by mas’adi (2002), which are: 1. binding between ijab and qabul ijab is the statement of will from one party (mujib) to do or not to do something. qabul is the statement from the second party (qaabil) to accept or approve mujib’s will. 2. can be accepted by syara’ the akad which are being conducted can’t be against the things that are being arranged by allah swt in al-qur’an and also can’t be against the things that are being arranged by prophet muhammad saw in hadits. the implementation, goals even the object of the akad can’t be against the syara’. if the akad is against the syara’, then that akad is invalid. 3. having legal consequences to the object akad is one of the legal action or it was called tasharruf in islamic law terms. the existence of an akad causing legal consequences to the legal objects which are being promised by the parties and also giving some rights and obligations which are binding all the parties. iii. the source of the law of contract in islamic law as a part of islamic law, so the source of the law of contract in islamic law is same as the sources of the islamic law. islamic law is originated from 3 law sources as emphasized by dewi, et.al (2013), which are consist of: 1. holy quran http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 69 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as one of the main sources of islamic law, most of the law inside the holy quran only regulating about the general rules, for examples: surah al-baqarah verse 275: با … َم الر ِ ُ البَيَع َوَحرَّ … َوأََحلَّ َّللاَّ which means: “…while allah has allowed trade and forbidden usury…” surah al-maidah verse 1: يا أَيَُّها الَّذيَن آَمنوا أَوفوا بِالعُقودِ which means: ““o you who have faith! keep your agreements…” 2. hadith as the second main sources of the islamic law, hadith can be defined as one of various reports describing the words, actions, or habits of the islamic prophet muhammad. in a hadith, the law of muamalat is being more detail if we compare with the law in the holy quran, but still regulating the general rules. for example: hadith of ahmad ibn hanbal that said: “it is not just for a man to sell his merchandise without disclosing its defects. it is proper for the vendor to tell the buyer of any defects of which he is aware. “ 3. ijtihad in english, the word ijtihad can be translated as an attempt to drive the legal ruling from koran/holy quran. ijtihad must be done using ar-ra’yu or human minds. mohammad daud ali defined ijtihad as truly effort or ikhtiar which being done by using all of someone’s (usually a legal scholar) capabilities which passing all of the requirements to regulating rules which are not being regulated clearly or not being regulated yet in holy quran or in hadith (hasan, 2003). for example of ijtihad is in indonesia, since april 2000 there are new body emerge that called dewan syariah nasional (dsn) as a part of majelis ulama indonesia (mui). this body has the responsibilities to making a fatwa1 which are related to the activities of the islamic financial institution in indonesia. so, all the fatwa that are made by the dsn in indonesia can be called as the results from ijtihad. iv. the principle of the contract in islamic law fathurrahman djamil said that there are at least 5 principle that are known for contract in islamic law, as explained by harso (2007), which consist of: 1. al-huriyyah (freedom) 1 according to the definition from https://en.oxforddictionaries.com/definition/fatwa, the word fatwa means a ruling on a point of islamic law given by a recognized authority. http://creativecommons.org/licenses/by-nc-sa/4.0/ 70 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this is the basic principle for contract in islamic law, which means that everyone has the freedom to make a contract or akad. there cannot be element of force, mistakes and scam in a contract. this principle is according to the fiqh that said: دَِلْيٌل َعلَى تَْحِرْيِمَها األَْصُل فِي الُمعَاَملَِة اإِلبَاَحةُ االَّ أَْن يَدُ لَّ which means that all of transaction is permitted, except there are law that makes the transaction becomes haram. 2. al-musawah (equality) this principle means that all the parties have the same position in order to determine the terms and condition of an akad. 3. al-‘adalah (justice) implementation of this principal in a contract is demanding all the parties to do the right thing in order to implementing the contract and also all of the parties must fulfilling their obligation in the contract. this principle is according to surah al-maidah verse 8, which said: …َوال يَجِرَمنَُّكم َشنَآُن قَوٍم َعلٰى أاَل تَعِدلُوا ۚ … which means “…and ill feeling for a people should never lead you to be unfair. be fair…” 4. al-ridha (willingness) this principle stated that all the transaction that being made must be based on the willingness from all the parties. 5. as-sidq (honesty) this principle means that a contract or an akad must be made based on the honesty from all the parties and must avoids what the islamic law call as a gharar or scam. v. legal requirements of a contract in islamic law there are 3 legal requirements of a contract in islamic law, which consist of: 1. two or more parties who are conducting the contract or akad (subject of the contract) two or more parties in here are two people or more who are directly involving in the contract. both parties must be passing all the requirements so that they can be considered having the capacity in order to make their contract becomes legitimate in the eye of islamic law. some of the requirements to be considered having the capacity to make a contract are: i. the ability to differentiate which one is bad and which one is a good thing. it means that the person already having their minds works and also already akil baligh (or passing the puberty). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 71 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ii. free to choose. contract will not be legitimate if that contract are being made under force, if that force can be proven iii. contract can be considered happens if there are no khiyar. like khiyar syarath or khiyar ar-ru’yah. 2. the object of the contract it means that the things that are made as an object inside the contract, it can be the things that are being sell in the selling-and-buying contract or it can be the things that are being rented in a rent contract. there are some requirements for the object of the contract, which are consist of: i. the object of the contract must be in a holy condition, or if the object are in a profane condition, that things must can be cleaned. so, we can make an proven object, such as a dead body, as the object of our contract. ii. the object of the contract must be useful and according to syariah. because the legal function of that object will be the based to measuring the value of that object. iii. the object of the contract must be available to handed over. the contract will not being legitimate if the object of the contract can’t be handed over to the other party because that can categorized as gharar2. iv. the party in the contract must have the (legitimate) ownership of the object of the contract. v. all the parties must know the form of the object of the contract 3. the statement of the akad or contract (shighat) it can be defined as the statement from the parties in the contract to shows ther willingness to the contract. it was known as ijab and qabul. ijab is the statement of will from one party (mujib) to do or not to do something. qabul is the statement from the second party (qaabil) to accept or approve mujib’s will. the requirements of ijab and qabul are: i. at least ijab and qabul must be stated by someone who are reaching tamyiz who are realizing and knowing what they said so they can really declare their willing. or in other words, it should be done by someone who are having the capacity to make a legal action. ii. ijab and qabul must be fixed to the object that becomes the object of the contract iii. ijab and qabul must be done in one place where all the parties are attending. iv. shighat al-aqad is the way that the statement or agreement are being made. for example it can be written or orally. 2 based on the article from https://en.wikipedia.org/wiki/gharar, gharar literally means uncertainty, hazard, chance or risk. http://creativecommons.org/licenses/by-nc-sa/4.0/ 72 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia v. al-ma’qud alaih / mahal al’aqad or the object of the contract. object of the contract will be so much depending on the contract that will be made. for example, in a contract of selling-and-buying the object are usually goods and services. vi. al-muta’aqidain/al’-awidain or the parties who are involved in the contract. all the parties must be having the capacity to make a legal action or in in other word the parties must be old enough (mature enough) and have healthy mental and mind to make a contract. vii. maudhu’ al’aqd or the aim or goal of the contract must be according to the syaria’ or otherwise that contract can’t be legitimate. the law of contract in indonesian law i. definition of contract in indonesian law in indonesian law, the law of contract is regulated under the kitab undang-undang hukum perdata (kuhper or indonesian civil code, hereinafter as kuhper). kuhper is the adaptation from dutch’s old civil code or called burgerlijk wetboek (bw). kuhper or bw is divided in four categories, which are: 1. buku i: perihal orang (book i: about individual) 2. buku ii: perihal benda (book ii: about property) 3. buku iii: perihal perikatan (book iii: about obligation) 4. buku iv: perihal pembuktian dan daluarsa (book iv: concerning evidence and prescription) from the categories mentioned above, the law of contract is being regulated on book iii. according to the article 1313 bw or kuhper (mas’adi, 2002) defined contract or engagement as an act pursuant to which one or more individuals bind themselves to one another. meanwhile, subekti, one of the law scholars from indonesia defined contract or engagement as an event where someone is promise to another person where both of them are promising to do something (subekti, 1996). another law scholar, krmt tirtodiningrat defined that contract and engagement as an act of law which based on n agreement between two or more people to cause legal consequences which can be enforced by law (meliala, 1985). a lot of legal scholars in indonesia thinks that the definition of contract on the article 1313 bw is not complete or can’t describe what is contract in detail. one of the scholars that agree to this is suryodiningrat, (1985), he thinks that article 1313 bw is not enough to describe contract because: 1. law is have nothing to do with every engagement 2. the word “acts” can be interpreted in so many way, so it can cause a legal consequences without even being mentioned. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 73 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. the definition from article 1313 is only about the unilateral agreement, only one party that have the obligation to do or give something 4. article 1313 bw is only about obligatoir agreement and cannot be use for other type of agreements. setiawan (1987) thinks that article 1313 bw not only not complete but also too wide to be interpreted. not enough because it only mentioning about unilateral agreement. and too wide to be interpreted because by using the word “acts” it also containing the acts against the law and voluntary representation. according to that he recommends: 1. the word of “acts” must be defined as an act of law, which is an act that was aim to causing a law consequences 2. adding the words “or to binding each of themselves” to the article 1313 bw 3. so, the article should be written as “engagement is an act of law, where one or more individuals bind or binding themselves to one individual or more. nowadays in netherland they already made a change in their old bw in form on nieuw burgerlijk wetboek (or nbw). so, article 1313 bw also have some changes, which are regulated in book 6, chapter 5, article 6:213 that said “a contract in the sense of this title is a multilateral juridical act whereby one or more parties assume an obligation towards one or more parties” (haanapel & mackaay, 1990). based on that nbw perspective, hartkamp & tillema (1995) assumed that contract is one of the species from act of law genus. generally, they are defined contract as “a juridical act, established – in compliance with possible formalities, required by the law – by the corresponding and mutually interdependent expressions of intent of two or more parties, directed at the creation of juridical effects for the benefit of one of the parties and to the account of the other party, or for benefit and to the account of both parties.” even though in the netherlands, the origin of the bw already had some changes in the old bw, but in indonesia, they are still no changes to the old bw. that means indonesia still using the old civil code with all of its shortcomings, especially the shortcomings in the law of contracts. ii. the origin of the law hadisoeprato (1984) explained concerning to the origin of the law—indonesian contract law— that can be reviewed from many subjects, such as historically, material or formally. the origin in this topic is meaning where are the rule of law is coming from. from the historically subject, law can be found from the old rules that being applied in the past, but that law still included in deciding the formation of the law that being applied in a specific place and at a specific time. or it can be found from the old documents which contains the law that being applied in the past. http://creativecommons.org/licenses/by-nc-sa/4.0/ 74 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia material subject is the factors that deciding the contents of law, which actually being determined by idiil factor and maatschappelijk factor. idiil factor is the base of the law which never change, which being followed by the body that responsible to making constitution. meanwhile maatschappelijk factor is the reality in the society which is really happens. formally, law can be found inside the constitution, jurisprudence, treaty and custom. constitution can be defined as the law that are made by government and the legislation (in a narrow sense). or constitution can be defined as a regulation that binding the public (in a broad sense). jurisprudence or caselaw is the decision of the judge which already being a law. treaty is an agreement between the countries who are making engagement so the results from that treaty is being applied by the law of the country which made that treaty. custom that mentioned in here is means all of the regulation which are not being made by the government, but still being obey by the public because they are believe that regulation can becomes a law that protecting the public interests. from the explanation above, we can see that both historically and formally the law of contract in indonesian law is based on dutch law which are expressed in the form of bw. because historically, we are being colonized by the dutch for 350 years and all of our law is being adopted from the dutch law. and formally speaking, for the law of the contract is still being regulated under the old dutch bw or called kuhper in indonesia. iii. the principle of the contract in indonesian law there are a lot of arguments between the law scholarship in indonesia about the principle of the law of contract, but main principle of the law of contract in indonesian law are: 1. consensualism consensulism are often defined as that consent (between the parties) is needed to make an agreement/contract. it means that if there is an agreement that reach between the parties, so contract is born, even though that contract is not yet started at that time (miru, 2007). in bw, this principle is mentioned in the article 1320 paragraph (1) that said:3 “there must be consent of the individuals who are bound thereby” 2. freedom of contract in bw, this principle is mentioned in the article 1338 paragraph (1) that said: “all valid agreements apply to the individuals who have concluded them as law.” this principal is a principle that are giving the freedom for the parties to: 1. whether the parties are making or not making the contract 3 the translation of burgerlijk wetboek or indonesian civil code in 3 languages, according to the translation from http://www.kuhper.com/trilingual%20indonesian%20civil%20code.pdf, article 1320. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 75 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. making contract with anyone 3. deciding the content, the execution and the terms of the contract 4. deciding the form of the contract, whether in form of written or orally. 3. pacta sunt servanda (the binding power of the contract) the binding power of the contract is appeared along with the freedom of contract principle which are the manifestation of the patterns of human’s relationship which are showing the value of trust inside. substantially, turns out the binding power of the contract not only binding the parties for the things that are expressly stated inside the contract, but also for everything that are being required by the custom, norms or the law (hernoko, 2018). in bw, this principle is mentioned in the article 1315 and article 1340. article 1315 said: “in general, an individual may only commit to or agree to something for and on behalf of himself.” article 1340 said: “an agreement applies only to the parties thereto.” both of article 1315 and article 1340 above are showing that the binding power of the contract is only reaching to the parties who are made the agreement. so, this principle is focusing on “who are being bind by the contract” not “what is the content of the contract”. 4. good faith in bw this principle is mentioned on article 1338 paragraph (3) that said: “they must be executed in good faith.” black’s law dictionary defined good faith as: “good faith is an intangible and abstract quality with no technical meaning or statutory definition, and it compasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage, and individual’s personal good faith is concept of his own mind and inner spirit and, therefore, may not conclusively be determined by his protestations alone. … in common usage this term is ordinarily used to describe that state of mind denoting honesty of purpose, freedom from intention to defraud, and generally means being faithful to one’s duty or obligation” (garner, 2009). iv. legal requirement of contract in indonesian law the legal requirement of the contract in indonesian law are regulated based on article 1320 bw, which are said: in order to be valid, an agreement must satisfy the following four conditions: 1. there must be consent of the individuals who are bound thereby 2. there must be capacity to enter into an obligation 3. there must be a specific subject matter 4. there must be a permitted cause http://creativecommons.org/licenses/by-nc-sa/4.0/ 76 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the first and second requirements can be said as the subjective requirements or the requirements which regulating about the parties in the contract. and for the third and fourth requirements can be said as the objective requirements or the requirements which are regulating about the object of the contract. if the parties in the contract can’t fulfill the first and second requirements, so the contract can be cancelled or one of the parties can ask for the contract to be cancel. but the contract that already being made still binds the parties as long as judge didn’t cancel the contract (wicaksono, 2008; nachatar, hussin, & omran, 2010; smits 2017; khairandy 2011; ningsih & disemadi, 2019; mahmod, azmi, islamil, daud, & napiah, 2019; sulistyarini, budinono, winarno, & koeswahyono, 2018; muhammad, saoula, issa, & ahmed, 2019; ilmih & zulkarnain, 2019).. meanwhile, if the parties in the contract cannot fulfill the third and fourth requirements, so the contract becomes void ab initio. it means that the contract is never be made and there is no engagement between the parties since the beginning. so, the parties didn’t have the legal standing to make a sue in front of the court (wicaksono, 2008). 1. consent wicaksno (2008) explained that consent in a contract is a feeling of willingness between the parties who makes the contract about the things that are mentioned in the contract. consent can never be acclaimed if the contract was being made based on scam, mistake, force, and misuse of the condition. 2. capacity capacity means the parties in the contract must be approved by law as a subject of law. basically, everyone has the capacity to make a contract. people who did not have the capacity to make a contract is people who are appointed by law which are: i. those who aren’t mature in indonesian law, there are difference in terms of “mature”, which are in a condition where someone already passed all the requirement to be called “mature” by law and those who are “maturity” which basically they are not mature yet, but by the law they can be announced as mature. based on indonesian bw, someone is not mature when they are not yet reach 21 years old and yet to be married. for those who are yet to reach 21 years old, but they already married and then already divorced, they cannot go back to the condition where they are called not mature. based on indonesian criminal code, someone can be called mature if they are already reach the age of 21 years old or they are already married before they are reach the age of 21 years old. indonesian customary law (hukum adat indonesia) did not recognize any age for someone to be called mature. indonesian customary law only can recognize someone’s maturity based on case by case. capacity in http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 77 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia indonesian customary law means that someone can calculate and protecting their own interests (wicaksono, 2008). ii. those who are under guardianship someone who are under the guardianship means that based on law assessment, someone is considered cannot protecting their own interests, so they need someone to be their guardian (wicaksono, 2008). iii. women, under some certain things that are being mentioned on the law, and everyone based on law who are banned to make some certain contracts. a long time a go, women is considered not have the capacity to make a legal action. but, as the time progress and also the improvement of the gender equality movement, that law has being withdrawn and now women have the right and capacity to make a legal action (wicaksono, 2008). 3. specific subject matter specific subject matter means that the objects that are being ruled in the contract must be clear or at least it can be determined. this is very important to do for giving a guarantee (or certainty) to all the parties and to do perform the contract. besides that, it also important to prevent the emergence of fake contracts (wicaksono, 2008). this requirement is mentioned on article 1333 bw which said: “an agreement must at least have as a subject a matter property whose nature is determined. the quantity of the matter needs not be ascertained, insofar such quantity can be determined or calculated at a later date.” 4. permitted cause permitted cause means that the agreement which are stated inside the contracts can’t be against the law, public order and decency (wicaksono, 2008). this requirement is being mentioned on article 1336 bw which said: “in the event that no cause is specified but that there is an existing permissible cause, or if there is a permissible cause other than one specified, the agreement shall be valid.” v. legal consequences of the contract a birth of a contract is emerging a legal relationship between the parties in form of rights and obligations of the parties. fulfillment of those rights and obligations is the legal consequences of the contract. those rights and obligations are the reciprocal relationships between the parties of the contract. the obligations of first party is the rights of the second party, vice versa the obligations of second part is the rights of the first party. in other word, the legal consequences of the contract is the fulfillment of that contract itself by the parties (wicaksono, 2008). http://creativecommons.org/licenses/by-nc-sa/4.0/ 78 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia comparasion between the law of contract in islamic law and indonesian law i. comparison on the process of making the contract according to dewi, et.al (2013), the differences between contract in islamic law and in indonesian law is happens in the engagement process. on islamic law, the promise from the first party is separated from the promise from the second party (it is a two different stages of engagement), and then after that the engagement between the parties was made. meanwhile, in indonesian law, according to the burgerlijk wetboek, the promise between the first and second party is happens at the same stage, which later the engagement between those party was being made based on that promise. the most critical point that differentiate contract in islamic law with contract in other law is the importance of ijab and qabul in every transaction or every contract. when the promise from the parties are being agreed and continue with ijab and qabul, then the ‘aqdu (or engagement) was made. ii. comparison between the legal requirements of the contract in islamic law and in indonesian law a. the subject of the contract there are differences between the requirements of the subject of the contract if we see from islamic law and from indonesian law. the differences is how islamic law and indonesian law define the ‘capacity’ of the subject of the contract. in islamic law, the age restriction for someone to be recognized having the ‘capacity’ is based on ‘urf. but in indonesian law, someone is recognized having the capacity if they are reaching the age of 21 years old, or they already married before 21 years old. besides those differences, both islamic law and indonesian law are obligating for all the parties in the contract must having the ‘capacity’ in order to make the contract. b. the statement of will both of islamic law and indonesian law are obligating mutual consent between all the parties to make a contract. and based on that mutual consent, there must be http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 79 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia statement of will from both of the parties. in islamic law this term is called ijab and qabul. generally, both of islamic law and indonesian law have the same criteria if we are talking about the statement of will from both of the parties in the contract, but in islamic law there are some extra requirements to make the statement of will becomes perferct. those extra requirements are: i. both of ijab and qabul must stated the aim of both parties clearly ii. both of ijab and qabul must be aligned to each other iii. both of ijab and qabul must be muttashil (must be continuous), which must be done in the same place (or in one majlis ‘aqd). c. object of the contract basically, both of islamic law and indonesian law have the same substance in order to regulating the object of the contract. but in islamic law, the object of the contract cannot be against the syaria. for example, in indonesia law we are allowed to make a selling-buying contract which the object of the contract is an alcoholic drink. but in islamic law we are not allowed to make the same contract, because alcohol is being prohibited under islamic law. other than that, there are some requirements in islamic law that regulating about the object of the contract, which are i. can be handed over ii. can be determined iii. can be transacted meanwhile in indonesian law, object of the contract can be determined as the rights and obligations between the parties, which are consist of: i. to give something ii. to make something iii. to not to do something d. the aim of the contract about the aim of the contract, in indonesian law it was recognized as the permitted cause. permitted cause in here is meaning that the aim of the contract can’t be against the law, public order and decency. meanwhile in islamic law the aim of the contract are recognized as maudhu’ al-‘aqd. it is one of the most important things that must be there in every contract. according to islamic law, the aim for the contract is al-musyarri’. or in other word, every legal consequences which are made from the contract must be known by syara’ and can’t be against the syara’, or it must be followed all the rules in holy quran and hadith. table 1. the differences between the legal requirements of contract in islamic law and in indonesian law no variable islamic law indonesian law http://creativecommons.org/licenses/by-nc-sa/4.0/ 80 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1 subject the capacity of the parties is based on ‘urf the capacity of the parties is decided based on maturity or aged. in buergelijk wetboek, someone is mature and have the capacity when they are reach the age of 21 years old or they already been married before that age 2 statement of will according to ijab and qabul mutual consent or statement of agreement 3 object a. can be handed over b. can be determined c. can be transacted a. to give something b. to make something c. to not do something 4 the aim of the contract every legal consequences which are made from the contract must be known by syara’ and can’t be against the syara’, or it must be followed all the rules in holy quran and hadith. the aim of the contract can’t be against the law, public order and decency. furthermore, the main difference on the principle of contract between islamic law and indonesian law is the origin of the law. in islamic law, the law of contract is come from holy quran and hadith. meanwhile the law of contract in indonesian law is come from the indonesian civil code which are the same exact with the dutch’s burgerlijk wetboek (the old bw) (nachatar, hussin, & omran, 2010; smits 2017; khairandy 2011; ningsih & disemadi, 2019; mahmod, azmi, islamil, daud, & napiah, 2019; sulistyarini, budinono, winarno, & koeswahyono, 2018; muhammad, saoula, issa, & ahmed, 2019; ilmih & zulkarnain, 2019). references abdoerraoef, a. (1970). al-qur’an dan ilmu hukum: a comparative study. jakarta: bulan bintang. arso, h. (2007). kumpulan makalah ekonomi syari’ah. jakarta: direktorat jenderal badan peradilan agama mahkamah agung republik indonesia. dewi, g., et. al. (2013). hukum perikatan islam di indonesia. jakarta: prenada media group. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 81 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia garner, b. a. (2009). black’s law dictionary. usa: west publishing co. haanapel, p. p. c. & mackaay, e. (1990). nieuw nederlands burgerlijk wetboek (het vermorgensrecht). netherlands: kluwer law and taxation publisher. hadisoeprapto, h. (1984). seri hukum perdata: pokok-pokok hukum perikatan dan hukum jaminan. yogyakarta: penerbit liberty. hartkamp, a. s., & tillema, m. m. m. (1995). contract law in the netherlands. netherlands: kluwer law international. hasan, m. a. (2003). berbagai macam transaksi dalam islam (fiqh muamalat). jakarta: rajagrafindo persada. ilmih, a. a., & zulkarnain, a. (2019). ideal electronic contract model as a form of ecommerce disputes settlement. jurnal pembaharuan hukum, 6(1), 77-89. indonesian civil code, kitab undang-undang hukum perdata, retrieved from http://www.kuhper.com/trilingual%20indonesian%20civil%20code.pdf. indonesian criminal code, kitab undang-undang hukum pidana hernoko, a. y. (2010). hukum perjanjian: asas proporsionalitas dalam kontrak komersial. jakarta: penerbit kencana. khairandy, r. (2011). landasan filosofis kekuatan mengikatnya kontrak. jurnal hukum ius quia iustum, 18(1), 36-55. knapp, c. l., & crystal, n. m. (1993). problems in contract law case and materials. new york: aspen legal and business publisher. lucas, n. (1998). llb learning texts: law of contract. great britain: blackstone press limited, second edition. mahmod, n. a. k. n., azmi, i. m. a. g., ali, e. r. a. e., ismail, w. a. f. w., daud, m., & napiah, m. d. m. (2017). an analysis of consensus ad idem: the malaysian contract law and shari’ah perspective. pertanika journal of social science and humanities, 25(1), 73-84. mas’adi, g. a. (2002). fiqih muamalah kontekstual. jakarta: rajagrafindo persada. meliala, a. q. (1985). pokok-pokok hukum perikatan beserta perkembangannya. yogyakarta: liberty. miru, a. (2007). hukum kontrak & perancangan kontrak. jakarta: pt rajagrafindo. muhammad, k., saoula, o., issa, m., & ahmed, u. (2019). contract management and performance characteristics: an empirical and managerial implication for indonesia. management science letters, 9(8), 1289-1298. nachatar, j. s., hussin, a. a., & omran, a. (2010). variations in government contract in malaysia. manager journal, 12(1), 40-53. ningsih, a. s., & disemadi, h. s. (2019). breach of contract: an indonesian experience in akad credit of sharia banking. ijtihad: jurnal wacana hukum islam dan kemanusiaan, 19(1), 89-102. salim, h. s. (2009). hukum kontrak: teori & teknik penyusunan kontrak. jakarta: sinar grafika. setiawan, s. (1987). pokok-pokok hukum perikatan. jakarta: bina cipta. http://creativecommons.org/licenses/by-nc-sa/4.0/ 82 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia smits, j. m. (ed.). (2017). contract law: a comparative introduction. edward elgar publishing. subekti, s. (1996). hukum perjanjian. jakarta: intermasa. sulistyarini, r., budiono, a. r., winarno, b., & koeswahyono, i. (2018). the benchmark of freedom of contract under indonesia treaty law (customary law perspective). journal of law, policy, and globalization, 8(2), 20-33. suryodiningrat, r. m. (1985). asas-asas hukum perikatan. bandung: tarsito. wicaksono, f. s. (2008). panduan lengkap membeuat surat-surat kontrak. jakarta: visimedia. […] https://en.oxforddictionaries.com/definition/fatwa […] https://en.wikipedia.org/wiki/gharar […] https://en.wikipedia.org/wiki/hadith […] https://www.collinsdictionary.com/dictionary/english/ijtihad […] holy quran. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 421 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article legal protection for bankruptcy curators in the resolution of bankruptcy cases maya tryandari1 1 justitia legal aid institute, kebumen, indonesia  mtyandari@gmail.com cited as tryandari, m. (2021). legal protection for bankruptcy curators in the resolution of bankruptcy cases. journal of law and legal reform, 2(3), 421-438. https://doi.org/10.15294/jllr.v2i2.46621 submitted: december 11, 2020 revised: february 11, 2021 accepted: may 2, 2021 abstract bankruptcy is a general confiscation of the assets of a bankrupt debtor who is no longer able to pay his debts and is deemed unfit to run his business, then the management and settlement of his assets are carried out by the bankruptcy curator under the supervision of the court supervisory judge. the research method used is using sociological juridical method by analyzing various legal regulations and examines behaviors and direct relationships based on an understanding of the law in terms of social phenomena. the focus of this research is limited to the responsibility of the curator in resolving bankruptcy cases and the protection of the bankruptcy curator in resolving bankruptcy cases. the rights and obligations regulated in law no. 37 of 2004 are very good and detailed, but the facts in the field of curators are very lacking in supervision. regarding the supervision carried out by the supervisory judge but the supervisory judge does not supervise the performance of the curator in the field but only supervises based on work reports and complaints by one of the parties concerned in bankruptcy cases. more supervision and consists of 3 elements related to bankruptcy, namely the courts, associations and curator education. legal protection for bankruptcy curators is very much needed because protection journal of law and legal reform (2021), 2(3), pp. 421-438 doi: https://doi.org/10.15294/jllr.v2i2.46621 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46621 https://doi.org/10.15294/jllr.v2i2.46621 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 422 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia is very much needed in a profession, especially the curator profession which leads to the court's extension in resolving bankruptcy. this profession is required to have an attitude of independence but how can independence be realized if the curator feels troubled by one of the parties in carrying out his duties and obligations. law no. 37 of 2004 does not regulate the supervision and protection of curators. so far, the curator has taken refuge in himself and has also been assisted by the association. keywords: curator; bankruptcy; legal protection introduction the growth of the business world in indonesia, which is increasingly competitive, makes entrepreneurs want to develop their businesses so they don't lose out in business competition with other companies. many companies want to expand or expand their business through borrowing capital from banks or other creditors in order to develop their company. competition in the business world as mentioned earlier which has very tight competition which causes the company to be unable to return the loan money to several creditors, so that the company experiences a period of bankruptcy and then the company is actually declared bankrupt according to the applicable commercial law in indonesia. the monetary crisis that hit asia including indonesia since mid-1997 has caused great difficulties for the national economy and trade. the ability of the business world to develop its business is severely disrupted, even to maintain the continuity of the business world is also not easy, this greatly affects the ability to meet its debt payment obligations. debt is an obligation that is stated in the amount of money both in indonesian currency and foreign currency, either directly or that will arise in the future or contingent, which arises because of an agreement or law and which must be fulfilled if it is not fulfilled gives creditors rights. bankruptcy is a condition where the debtor has difficulty in paying his debts to the creditor, and the debtor is declared bankrupt by the court because he has financial difficulties to pay the debt (suci & poesoko, 2011). law number 37 of 2004 concerning bankruptcy and suspension of debt payment obligations in article 1 paragraph (1) bankruptcy is a general confiscation of all assets of a bankrupt debtor whose management and settlement is carried out by a curator under the supervision of a supervisory judge. the bankrupt loses the right to control and manage his assets that are included in the bankruptcy estate, from the date the bankruptcy decision is pronounced, then the management and settlement of the bankruptcy estate becomes the duty and authority of the curator (article 1 paragraph 1 of law number 37 of 2004). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 423 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia according to poerwadarminta, "bankrupt" means "bankrupt" which means suffering a big loss until it falls (companies, shops, and so on) (poerwadarminta, 1999). according to john m.echlos and hasan shadily, bankrupt means bankrupt, and bankruptcy means bankruptcy, bankruptcy. according to prof. mr. dr. sudargo gautama bankruptcy is a complete confiscation of all property of the bankrupt. as a consequence of course, the bankruptcy is prohibited from continuing his business and taking legal actions, except with the approval of the supervisor or executor. it can be concluded that bankruptcy or bankruptcy is the inability to pay from a debtor for his debts that are past due. a company that is unable to pay its debts is finally reported by creditors or reports itself that it is no longer able to run the company and pay its debts to the commercial court. the court will appoint a curator to check whether the company is in a state of inability to pay its debts. this curator checks and sees all lists of financial books, settlements and responsibilities in distributing rights to debtor assets to creditors (jono, 2008). in relation to the issuance of a bankruptcy decision, the "curator" acts as the guardian of the bankrupt and its main task is to administer or extort the assets of a bankrupt debtor and the loss of authority of the bankrupt debtor to control and manage his bankruptcy assets. as for creditors, there will be uncertainty about the existing legal relationship between the bankrupt creditor and the bankrupt debtor. for this purpose, the bankruptcy law has determined the party who will take care of the issue of the bankrupt debtor and the bankrupt creditor through the curator. in the decision to declare bankruptcy, a curator and a supervisory judge appointed from the court judge must be appointed and in the event that a debtor, creditor or other authorized party submits an application for a declaration of bankruptcy, if the curator does not submit a proposal to the court, then the inheritance hall is appointed as a curator or private curator, the appointed curator must be independent, have no conflict with debtors or creditors, and are not currently handling bankruptcy cases and delays in paying debt obligations for more than 3 cases involving ongoing. according to article 1 point 5 of the bankruptcy law, a curator is a treasure trove or an individual who is appointed by the court to manage and settle the assets of the bankrupt debtor under the supervision of a supervisory judge in accordance with the applicable law. and not currently handling bankruptcy cases and delays in paying debt obligations for more than 3 ongoing cases. according to article 1 point 5 of the bankruptcy law, a curator is a treasure trove or an individual who is appointed by the court to manage and settle the assets of the bankrupt debtor under the supervision of a supervisory judge in accordance with the applicable law. and not currently handling bankruptcy cases and delays in paying debt obligations for more than 3 ongoing cases. according to article 1 point 5 of the bankruptcy law, a curator is a treasure trove or an individual who is appointed by the court to manage and settle the assets of the bankrupt debtor under the supervision of a supervisory judge in accordance with the applicable law. http://creativecommons.org/licenses/by-nc-sa/4.0/ 424 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia bankruptcy curator according to law number 37 of 2004 is a person who is a professional in the legal field who is then appointed by the commercial court to manage and settle assets or bankrupt boedel. based on article 70 paragraph (1) of the bankruptcy law, it is stated that the curator is the inheritance hall or other curator. the requirements to become a curator as stipulated in article 70 paragraph 1 letter b are; 1. individuals domiciled in indonesia who have special skills needed in order to manage and settle bankrupt assets; 2. registered with the ministry whose scope of duties and responsibilities are in the field and laws and regulations. based on article 15 paragraph (2) of the bankruptcy law, it provides an opportunity for bankrupt debtors or bankrupt creditors to submit a proposal for the appointment of a private curator, so that currently the practice of bankruptcy cases being submitted to the commercial court, the debtor or creditor has the right to also submit the name of the candidate curator to the commercial court. based on the names of the candidates, the commercial court will then determine the curator. here there is often a dispute in terms of determining the candidate for curator proposed by the creditor or debtor to be selected. management and settlement are: recording, finding, maintaining value, securing, and tidying up property by selling it through auction. so, the curator has the task of ensuring that the confiscated goods can be identified, maintained, and even developed in value for sale and distribution of the proceeds to creditors and other duties of the curator. for this reason, the curator must be able to read the company's financial statements in order to obtain information regarding the assets under his authority. in their duties, the curator can use the services of an auditor. even the curator can invite an appraiser or tax consultant if necessary. there is a problem what if in a bankruptcy case the curator violates the code of ethics within the authority and responsibility of a curator. the obligations of the curator are already regulated in law number 37 of 2004 concerning bankruptcy or pkpu. starting from the appointment of authority given by the commercial court and other duties of a curator. in fact, the curator's obligations are all integrated with the bankruptcy regulations and the pkpu does not have the concentration and independence of its own legal regulations regarding the rights and responsibilities of the curator, the protection of the curator, and even the punishment for the curator. responsible for himself if he is negligent in his duties and authorities” which is stated in article 72 of the bankruptcy law. the curator profession is indeed very rewarding, but i see many curators being sued by bankrupt debtors or bankrupt creditors with various problems, this profession is also widely accused of being a mafia conspiracy practice, how can this happen, is there really a lot of curators who work or not? in accordance with what it should be even though i feel that the curator profession is a profession that helps and mediates in the company's debt and debt problems which indirectly almost have similarities in the profession of advocate and notary. according to an article i http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 425 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia read on a site ( hukumonline.com ) : " chairman of the indonesian association of curators and administrators (akpi) jamaslin james purba said that curators who violated the code of ethics could not be categorized as bankruptcy mafia , because they were not carried out in an organized manner . james also said that the curator had a low probability of a bankruptcy mafia movement, because the curator must be able to work after the court's decision. james believes that the curator must be independent, there should be no conflict of interest either with the creditor or with the debtor. the curator is intermediary and indeed must be independent in carrying out his duties and responsibilities. many curators complained about the obstacles in carrying out their duties, and there were even curators who were reported by debtors to the police for embezzlement because they had sold bankruptcy assets without their consent. another lawmaker who seeks profit from the report, it can be said that law enforcers think that the curator is a person who has a lot of wealth and wealth. based on the background based on the background the author conveys two things that are the main problems of this research, namely how is the responsibility of a bankruptcy curator in a bankruptcy case and how is the legal protection of a bankruptcy curator in his profession as a curator in a bankruptcy case. to obtain these data, several methods are needed as guidelines, because this research method is an important element in research. this research is a qualitative research. according to bogdan and taylor, what is meant by "qualitative research is a research procedure that uses descriptive data in the form of written or spoken words from people and observed behavior (moeleong, 2009). this type of qualitative research was chosen because this research is typical of applied legal research by identifying the law and its effectiveness holistically. the research method used is the socio-juridical method (socio-legal approach). according to soerjono soekanto, the juridical approach is: "includes research on legal principles, legal systematics, level of legal synchronization, legal history, and legal comparisons" (soekanto, 1986), by analyzing various legal regulations and examining behaviors and direct relationships based on an understanding of the law in terms of social phenomena. the focus of this research is limited to the responsibility of the curator in resolving bankruptcy cases and the protection of the bankruptcy curator in resolving bankruptcy cases. bankruptcy and the legal protection the curator is an institution established by law to settle the bankruptcy estate. in every bankruptcy decision by the court, it includes the appointment of a curator who is appointed to manage and transfer the bankruptcy estate under the supervision of the supervisory judge (novitasari, 2016). after the debtor is declared bankrupt by the court, the debtor by law does not have the authority to manage and/or transfer his assets that have become bankrupt assets. the curator does not have a conflict of interest in it, the curator must be independent. the http://creativecommons.org/licenses/by-nc-sa/4.0/ 426 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia curator may not side with either the creditors or the bankrupt debtor itself. in practice, the determination of the name of the curator is appointed by the creditor who submits an application for bankruptcy against the debtor. however, even though it is proposed by the creditor, the curator must remain independent because he will be responsible for what he does. the law does not comprehensively explain the meaning of independent and conflict of interest. in the explanation of article 15 paragraph 3 of the bankruptcy law, it is only said that what is meant by "independent and has no conflict of interest" is that the continuity of the existence of the curator does not depend on the debtor or creditor, and the curator does not have the same economic interest as the economic interest of the debtor or creditor. the indonesian association of curators and administrators (akpi) in the provisions of its professional code of ethics places the principle of independence and conflict of interest as the first principle of the principle of professional ethics. furthermore, akpi describes the principle of independence that in every appointment received, members of the indonesian curator association and management must be independent and free from anyone's influence. in the 1998 and 2004 amendments to the bankruptcy laws, there was a progressive change in the regulation regarding curators, namely the possibility of curators other than balai harta peninggalan. in article 1 number 5 of the 2004 uuk it is stated that the curator is an inheritance center or an individual who is appointed by the court to manage and settle the assets of a bankrupt debtor under the supervision of a supervisory judge in accordance with this law. article 70 paragraph (1) of the uuk states that the curator as referred to in article 69 is the heritage hall or other curator. what is meant by other curators are those who meet the requirements as curators, namely, an individual who has the special skills needed in order to manage and/or settle the bankruptcy estate and has been registered with the ministry of justice as a curator. thus ,the bankruptcy curator since the changes in the law caused by the 1998 monetary crisis resulted in the balai harta peninggalan not being overwhelmed in handling bankruptcy cases. a. duties, authorities, rights and supervision of the curator in a bankruptcy case there are two stages of work carried out by the curator, namely the management and settlement of these stages carried out by all curators, both bhp and private curators. these stages consist of various work breakdowns: 1. management since there is a decision or determination that a company is declared bankrupt by a judge or court, the curator's work begins because by law the company is no longer able to run and the head of the company is no longer able to http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 427 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia run the company and there are no rights along with the details of the management stage; a) newspaper announcement, where the curator is obliged to announce that the company has been declared bankrupt, at least two newspapers and within a period of no later than 5 days; b) creditors meeting where this is the deadline for collecting claims by creditors to debtors; c) verification meeting or debt matching/invoicing all data from creditors will be matched with data from debtors by the bankruptcy curator; d) the offer of peace addressed to the creditors committee whether to stay clean and have a unanimous commitment to this company going bankrupt; e) if indeed there is no agreement between the debtor and the creditor, then enter the determination or isolation stage. 2. settlement this stage will be carried out if there is no conciliation between the debtor and the creditor committee, then this stage will be carried out. the curator will carry out detailed work regarding the debtor's assets, namely; a) the first thing the curator will do in the settlement stage is confiscation of assets where the head of the company or company director has no right to the operations of the company or there is no right, all of which will be confiscated by the state; b) all debtor assets will be assessed individually and as a whole and then calculated in detail how much the selling price of the assets will be; c) auction of assets conducted by the curator through newspapers and in collaboration with the kpknl state auction center or private auction hall; d) if the assets can be sold and the amount of the assets collected, the next step is to determine the distribution of assets to the creditor committee and announce it in newspapers or newspapers; e) the next stage of receiving payments or curator fees at this stage is usually carried out simultaneously with the stage of distributing assets to creditors because the curator here is a concurrent creditor. ' f) newspaper announcements intended to inform that the extortion of assets has reached the termination process and that the distribution of assets has been completed; g) work report to the supervisory judge; h) if bhp is the curator of bhp, it must also provide a report to the director general. the task of the curator is not only to collect the bankruptcy estate and then distribute it to creditors, but the curator is also expected to be able to increase the selling value of the bankruptcy estate as much as possible (sutedi, 2009). based on uukpkpu which are the duties, authorities and responsibilities of the most primary curator, among others are as follows: http://creativecommons.org/licenses/by-nc-sa/4.0/ 428 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia a) the curator has the authority to act on his own to the extent of his duties (article 73 paragraph 3); b) the main task of the curator is to manage and settle the bankruptcy estate (article 69 paragraph 1); c) it is permissible to borrow from a third party with the terms and objectives to increase the value of the bankruptcy estate (article 69 paragraph 2); d) with the approval of the supervisory judge, the curator has the authority to encumber the bankruptcy estate with mortgage, pledge and other collateral rights (article 69 paragraph 3); e) the authority referred to in article 36 is a reciprocal agreement unless there is an agreement that gives the debtor the right to carry out his own actions; f) the authority to sell collateral from separatist creditors after 2 (two) months of insolvency (article 59 paragraph 1) or the curator to sell movable goods in a state of stay (article 56 paragraph 3); g) the curator has the authority to continue the business of the debtor who is declared bankrupt (with the approval of the supervisory judge or creditor committee) even though an appeal or judicial review is filed against the decision on the bankruptcy statement (article 104); h) the curator has the obligation to make a description or record of the bankruptcy estate (article 100); i) authority to transfer bankrupt assets prior to verification (with the approval of the supervisory judge) (article 107 paragraph 1); j) the curator is obligated to make and verify the list of receivables (article 116 in conjunction with article 117); k) the curator is obligated to make payments according to the creditors' receivables in the settlement process (article 201); l) can make demands based on legal institutions action paulina (article 41 in conjunction with article 47 paragraph 1); m) the curator may release the object that becomes the collateral by paying the creditor concerned the smallest amount of the market price of the collateralized goods with the amount of money that is guaranteed by the collateral goods (article 59 paragraph 3); n) the curator is entitled to service fees/fees in performing his duties after the bankruptcy ends and the provisions regarding the amount of compensation obtained are through a determination based on the guidelines of the minister of law and human rights regulation number 2 of 2017 concerning amendments to the regulation of the minister of law and human rightsa number 11 of 2016 concerning guidelines for service fees for curators and management. (article 75 in conjunction with article 76); o) in the event of negligence and errors in carrying out the duties of management and settlement of the bankruptcy estate, the curator is responsible for this (article 72); http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 429 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia p) the curator must uphold the attitude of independence and be free from the intervention of creditors and debtors (article 15 paragraph 3); q) the curator may conduct an auction of the burden of the bankruptcy estate based on the power of the supervisory judge according to the auction day that has been determined (article 33); r) dismissal of workers who work for debtors can be done by the curator or the will of the worker (article 39); s) the authority of the curator to break the lease ties of the bankrupt debtor (the debtor as the party that rents) (article 38); t) if in the management of the bankruptcy estate there is an inheritance that falls to the bankrupt debtor, the curator can receive the inheritance if its existence benefits the bankruptcy estate (article 40 paragraph 1) then on the contrary the curator has the right to refuse the inheritance based on the permission of the supervisory judge (article 40 paragraph 2); u) the curator's obligation to sell assets in terms of settlement tasks; and v) the curator must submit a report every 3 (three) months to the supervisory judge regarding the condition of the bankruptcy estate and the implementation of duties as a form of accountability (article 74 paragraph 1). the tasks listed above are the tasks regulated in law no. 37 of 2004, all of which have been well regulated and detailed regarding the tasks of the bankruptcy curator. broadly speaking, the duties and authorities of the curator as emphasized by kukus (2015), are: 1) carry out the management and settlement of bankrupt assets even though the decision is filed for cassation or review 2) carry out tasks without prior notification to the debtor 3) make a loan to increase the value of the bankrupt property 4) file a claim for bankruptcy assets 5) carry out security or sealing of bankrupt assets 6) transferring bankruptcy assets 7) make a record of bankruptcy assets 8) make a list of bankrupt assets 9) refuse inheritance, unless it benefits the bankruptcy estate 10) make a final bankruptcy report in article 73 paragraph (1) of the bankruptcy law, it is stipulated that if more than one curator is appointed, then in order to take legal and binding action, the curators need the approval of more than of the number of creditors, except for the curator who is appointed for special tasks based on the decision of the statement. bankruptcy is authorized to act on its own to the extent of its duties (article 73 paragraph (3) of the bankruptcy law. in his book dr. m hadi subhan, sh, mh, cn is of the opinion that the curator is authorized to terminate the employment relationship, if the bankrupt is a limited liability company, without ignoring the labor regulations and that with the shortest notice of 45 (forty-five) days in advance. the curator can also accept http://creativecommons.org/licenses/by-nc-sa/4.0/ 430 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia or reject an inheritance that fell during bankruptcy if he receives an inheritance, then the inheritance will benefit the bankruptcy estate, while if it is rejected, there must be permission from the supervisory judge. the curator may submit a request to the court to make detention (forced body) against the debtor if the debtor is deemed to be less cooperative in the settlement of bankrupt assets. the above powers mentioned in the bankruptcy law as well as the experts who of course refer to the bankruptcy law are very detailed and good. everything about the duties and authorities regulated in the bankruptcy law leads to the curator's responsibility to uphold justice and independence. bankruptcy curator is an extension of the court where he must be fair and work to assist the court, the independence of which is repeatedly stated in the bankruptcy act. the bankruptcy law does not formulate supervision in which supervision is held by the supervisory judge and may be assisted by the director general in the decision to declare bankruptcy, a curator and a supervisory judge must be appointed from the court judge. the appointment of the bankruptcy curator by the judge is usually through an offer submitted by the supervisory judge to the debtor or creditor who will choose whom to appoint or use his services to expedite the bankruptcy case. there is also one applicant who has brought his own curator which will then be assessed by the judge whether this curator will be independent and have good performance. whereas the difference in wages obtained from a bankruptcy case is also a problem in bankruptcy cases, law no. 37 does not regulate the wages of bankruptcy curators, for example, the wage for inheritance in bankruptcy cases is 8%. this is regulated in a government regulation, law no. 10 of 2015 while the wages of individual curators are 10% plus sales wages, this difference really shows the lack of the bankruptcy law regulating the profession of curator even though it is very good at regulating the duties and authorities of the bankruptcy curator (novitasari & wijayanta, 2016). the regulation of law no. 37 of 2004 article 76 which regulates the wages of bankruptcy curators does not regulate in detail, only refers to the government's decision to regulate the wages of the curator profession. the amount of the service fee that must be paid to the curator as referred to in article 75 is determined based on the guidelines established by a ministerial decree whose scope of duties and responsibilities is in the field of law and legislation.” (article 76 of law no. 37 of 2004). the lack of clarity on the amount of wages that is not regulated in law no. 37 of 2004 and the differences in the arguments that can be obtained based on the research that the author does are very vulnerable to the curator profession. the amount of this wage is very controversial and can also be a gap in a bankruptcy case. this difference can be a boomerang for the curator in getting his rights from a job he does in bankruptcy cases. it is possible that one of the parties authorized to pay the wages of the curator does not receive the amount of the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 431 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia curator's wages based on the bankrupt account. this requires reaffirmation of the amount of wages received by the curator in a bankruptcy case, the curator is indeed lacking in supervision, only supervision is based on the work report of the supervisory judge and also if there is a report of dissatisfaction from one of the parties in the bankruptcy case. the bankruptcy law does not regulate this supervision, it is necessary to carry out supervision from the three institutions to supervise the curator in handling bankruptcy cases, for example the curator's association or bhp according to where the curator is under, from the government such as the court and also the director general of taxes, and also from education or coaching of the curator profession. next, we will discuss the rights of the bankruptcy curator in handling a bankruptcy case which is one of the elements of protection based on their rights. in accordance with article 75 of the bankruptcy act states that the amount of curator service fee is determined after the bankruptcy ends. the number of wages that are not clear and different is a polemic in a bankruptcy case and the curator in carrying out certain actions must also pay attention to the proper way from a legal, social and customary point of view in the community. for example, the sale of certain assets through the courts, auctions or privately (fuady, 2005). the procedure for appointing a bankruptcy curator is the existence of a bankruptcy application submitted by a bankruptcy applicant that meets the simple elements of more than 2 creditors, not paying off at least one debt that has matured and can be collected (article 2 paragraph 1 of law no. 37 of 2004 ), the petition for bankruptcy also mentions the candidate for the curator being requested (attach a statement that there is no conflict of interest on both sides, namely the creditor and debtor, willing to handle the case, not handling more than 3 bankruptcy cases and pkpu simultaneously), after going through the trial process , then if the application is granted then legally the company or individual is bankrupt along with the legal consequences. furthermore, the new curator can carry out his duties and responsibilities in accordance with the legislation that governs it. regarding the procedure for appointing a curator in a bankruptcy case, there is a bankruptcy decision from a judge in a bankruptcy case, then the judge gives advice to both parties regarding the services of a state curator or individual curator which will be used if both parties have not submitted a curator to be used, if there is one. if the proposed curator is submitted by one of the parties, the judge will review and consider how the proposed curator has the right to handle this bankruptcy case and also ensure the independence of the curator. the curator is responsible for his negligence that harms hartapailit, according to article 72 of law no. 37 of 2004, but all must be proven legally, and even if he is suspected of being a criminal, must reach the stage of inkrach van gewijde. implementation of law no. 37 of 2004 concerning bankruptcy and pkpu as long as the curator carries out his duties and responsibilities in accordance http://creativecommons.org/licenses/by-nc-sa/4.0/ 432 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia with the laws and regulations and complies with and is in line with the code of ethics of the curator profession. and the work carried out by the curator must also be in harmony with the supervisory judge appointed by the commercial court to supervise the tasks that have been carried out by the curator. supervision should be carried out by three fields, namely the courts, associations or bhp as state curator, and education or the professional field, so that indeed from various parties who are indirectly related to the curator profession, these three fields also provide protection if they really the curator stumbles upon a case or lawsuit in handling the case and the three fields can judge fairly whether the bankruptcy curator really deserves to be protected or not. the work of a curator whose notes are very sensitive to debtor's assets and creditor's rights really needs more supervision (muryati, septiandani, & yulistyowati, 2017). b. responsibilities of the bankruptcy curator in a bankruptcy case in the big indonesian dictionary, responsibility is defined as: 1) the state of being obliged to bear everything (if anything happens, it can be sued, blamed, sued); 2) the function of receiving the burden, as a result of the attitude of one's own or other party's actions in the black's law dictionary, is explained by the term liability (responsibility). in relation to responsibility, there are several principles of responsibility that can be stated as follows: 1. liability based on fault (principle of responsibility for mistakes) this principle has been in effect for quite a long time, both in criminal law and civil law. responsibilities like this are then expanded to vicarious liability, namely the responsibility of employers, company leaders to their employees or parents to their children, as regulated in article 1367 of the civil code. 2. presumption of liability principle (principle of presumption of responsibility) a person or defendant is considered responsible until he can prove that he is not guilty. thus, the burden of proof is on him. this principle is also called reverse proof (omkerin van bewijslast). 3. presumption of non-liability principle (the principle of presumption is not always responsible) this principal outlines that the defendant is not always responsible. this principle is the opposite of the presumption of responsibility. 4. strict liability (the principle of absolute responsibility) this principle is the opposite of the first principle, namely liability based on fault. with this principle, the defendant must be responsible for the losses suffered by the consumer without having to prove whether or not there was a mistake on him. 5. limitation of liability (limited liability principle) this principle benefits business actors because it includes an exoneration clause in the standard agreement they make. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 433 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia every act of the curator that is detrimental to the bankrupt property or in the sense of harming the interests of the curator, whether intentionally or unintentionally by the curator, the curator must be able to account for his actions. this is expressly stated in article 72 of the bankruptcy law, among others: "the curator is responsible for his/her mistakes/omissions in carrying out management and/or settlement tasks that cause losses to the bankruptcy estate.." as a form of accountability, every 3 months, the curator must submit a report to the supervisory judge regarding the state of the bankruptcy estate in the implementation of his duties (article 74 paragraph (2) of the bankruptcy law). this report is open to the public and can be viewed by everyone free of charge (article 74 paragraph (2) of the bankruptcy law). the curator appointed either the bhp curator or the individual curator must be independent and not currently handling bankruptcy cases or debt repayment obligations of more than 3 cases. article 72 of the bankruptcy law expressly states that the curator is responsible for his errors or omissions in carrying out management and/or settlement tasks that cause losses to the bankruptcy estate (shubhan, 2008, p. 108). in carrying out their duties, the curator makes a working paper for the sake of accountability for his duties. the curator's professional standard explains that working papers are a collection of any and all documentation held by the curator or administrator along with a compilation of all data or information related to assignments in a bankruptcy. working papers are confidential, except for documents in them which are declared by law as public documents. working papers serve to assist the curator to work in a structured and efficient manner, as well as to facilitate the curator's accountability or responsibility for the implementation of his assignments (shubhan, 2008, p. 111). furthermore, the professional standards of curators and administrators explain that a curator's working paper should at least contain data/information along with notes on: 1. administrative documentation on which the assignment is based; 2. the work plan prepared by the curator at the beginning of the assignment; 3. correspondence with parties involved in the bankruptcy process 4. documentation (including supporting documentation) relating to bankruptcy assets or bankruptcy assets obligations, including but not limited to notes or descriptions of bankruptcy assets or their descriptions 5. note things that are considered important by the curator in carrying out their duties 6. meetings held in connection with assignments, including but not limited to creditor meetings and curator consultations with supervisory judges. http://creativecommons.org/licenses/by-nc-sa/4.0/ 434 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 7. conclusions, analyses, memorandums and representations made by the curator during his assignment 8. curator reports as referred to in the bankruptcy law. (shubhan, 2008, p. 111). legal protection for curators in handling a bankruptcy case legal protection is to provide protection for human rights that have been harmed by others and this protection is given to the community so that they can enjoy all the rights granted by law or in other words legal protection is various legal remedies that must be provided by law enforcement officials. law to provide a sense of security, both physically and mentally from interference and various threats from any party (rahardjo, 2003). legal protection for a bankruptcy curator is often reviewed in legal articles because the bankruptcy curator profession works as an extension of the court and must be independent in dealing with a problem. the question that arises is how a curator can be independent if one of the parties in a bankruptcy case sues or sues the curator or at least makes it difficult for the curator to work. indeed, the word legal protection is often associated with the right to immunity, which is immunity. it is too dangerous to interpret legal protection as being related to the right to immunity, because no law enforcer is immune to the law (raissa, yuniar, & nurhayati, 2020). the emergence of the problem of legal protection for a bankruptcy curator is because many curators have been sued and even criminalized, especially individual curators. in the course of the bankruptcy management and settlement process, the curator is very vulnerable to being sued or even criminalized (criminal). this is due to the lack of information or not too much socialization about bankruptcy and pkpu, and there is not a single article written in law no. 37 of 2004 concerning bankruptcy and pkpu regarding immunity rights. this is different from other professional professions that have immunity, in comparison with the advocate profession, where there is an article that clearly regulates immunity and there is an mou between the dpn peradi and the police regarding the procedure for summoning an advocate by the police (we attach it). so the participation of professional organizations, the ministry of law and human rights (government) and the dpr to immediately revise law no. 37 of 2004 concerning bankruptcy and pkpu and includes articles concerning immunity, and that professional organizations in this case are akpi (indonesian association of curators and administrators), ikapi (indonesian association of curators and administrators) and hkpi (association of indonesian curators and administrators) to make an mou with the indonesian national police (kartoningrat & andayani, 2018). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 435 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that the curator profession is very vulnerable to being sued and criminalized, for example, the case of mr. jandri onasis siadari sh.llm which based on the decision that mr. jandri's brother was sued for committing, ordering to do or co-operating with drs. joko prabowo, sh, mh made a forged letter or falsified a letter that could give rise to a right, engagement or release of debt, or which gave rise to a right, an engagement or which was intended as evidence of something with the intention of using or ordering another person to use the letter with the intention of to curse or order others to use the letter as if its contents were true and not falsified. with this lawsuit, mr. jandri was further processed and entered into court and was not proven guilty or did not deviate from his duties. this can be a point of view that the bankruptcy curator profession is very vulnerable to lawsuits and criminalization. individual curators who are under the auspices of the association will be accompanied by the association because the association cannot move much because there is no agreement with the police like advocates. unlike the state curator or bhp, the state curator does not seem to have many problems regarding performance in handling bankruptcy cases. bhp does not have any significant problems regarding lawsuits or demands because we act as the government and have a clear body and are under the auspices of the government, it's just that we need more physical protection or strong legal protection if we are difficult in our performance as curators by one of the parties in the bankruptcy case. the right of the curator is to get wages from the bankruptcy case he is working on. article 75 of the bankruptcy law states that the amount of the curator fee is determined after the bankruptcy ends. the number of wages that are not clear and different is a polemic in a bankruptcy case. the right of the curator is also included in one of the curator's legal protections because if we look at the bankruptcy law, it does not regulate much about curator wages. that the difference in wages obtained from a bankruptcy case is also a problem in bankruptcy cases, law no. 37 does not regulate the wages of bankruptcy curators, for example, the wage for inheritance in bankruptcy cases is 8%. this is regulated in government regulation law no. 10 of 2015. the right of the curator is to receive his wages in accordance with the regulation of the minister of law and human rights of the republic of indonesia no. 11 of 2016 (to be attached) which regulates the fees for the services of the curator and management. the bankruptcy law only regulates when the curator gets his wages, regarding the amount of the ministerial regulation that will be used. conclusion that the curator's responsibilities which include his duties, powers and rights have been sufficiently regulated in law no. 37 of 2004, all of which have been http://creativecommons.org/licenses/by-nc-sa/4.0/ 436 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia very well regulated and the curator there is required to be independent. it's just that the lack of regulations that supervise curators in performing in the field makes this law a lot of gaps for irresponsible persons. supervision that has been carried out so far is very lacking because the curator is only supervised based on the work report he has made and also the objection report from one party if he finds the performance of the curator that is not related to his duties and authorities. the law also does not regulate the rights of the curator with wages because the law only explains when the curator gets his rights, not the number of wages the curator gets from his performance in handling a bankruptcy case. the difference in the number of wages received by bhp and the individual curator with the same responsibility makes one of the parties to a bankruptcy case feel disapproved and will add to the complicated problem in a bankruptcy case. that the legal protection for this curator, which is also an outline of what the author wants to raise is that protection has not yet been regulated in law no. 37 of 2004. there is no single regulation that regulates legal protection for this profession where this profession acts as an extension of the court and its objectives are fair in managing the bankruptcy estate and also do not burden one of the parties where independence is needed, how independence can be realized if the curator feels that it is difficult, or his performance is being sued by one of the parties. this must be interpreted at the same time that legal protection is very much needed for curators but not only curators, but debtors and creditors also need legal protection. the necessary supervision from the curator profession is supervision from the government or courts, supervision from shelters such as bhp and akpi, as well as supervision from the education sector and professional development of the curator. this must apply equally to bhp and individual curators, there are no distinctions, and these three supervisory elements can also act as the same shelter so that there is no distinction between state curators or bhp and individual curators under the aegis, for example akpi. references fuady, m. (2005). hukum pailit dalam teori dan praktek. bandung: pt. aditya citra. jono, j. (2008). hukum kepailitan. jakarta: sinar grafika. kartoningrat, r. b., & andayani, i. (2018). mediasi sebagai alternatif dalam pengurusan dan pemberesan harta pailit oleh kurator kepailitan. halu oleo law review, 2(1), 291-305. kukus, f. m. (2015). perlindungan hukum terhadap profesi kurator dalam perkara kepailitan. lex privatum, 3(2). moeleong, l. j. (2009). metode penelitian kualitatif. jakarta: gramedia. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 437 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia muryati, d. t., septiandani, d., & yulistyowati, e. (2017). pengaturan tanggung jawab kurator terhadap pengurusan dan pemberesan harta pailit dalam kaitannya dengan hak kreditor separatis. jurnal dinamika sosial budaya, 19(1), 11-21. novitasari, n., & wijayanta, t. (2016). perlindungan hukum terhadap independensi kurator dalam mengurus dan membereskan harta pailit. lambung mangkurat law journal, 1(2). poerwadarminta, w. j. s. (1999). kamus umum bahasa indonesia. jakarta: balai pustaka. rahardjo, s. (2003). sisi lain dari hukum di indonesia. jakarta: pt. kompas media nusantara. raissa, a., yuniar, a. r., & nurhayati, a. g. a. (2020). kelemahan kurator dalam pemberesan harta pailit. jurnal hukum magnum opus, 3(2), 213-222. shubhan, h. (2008). hukum kepailitan. jakarta: kharisma putra utama. soekanto, s. (1986). pengantar penelitian hukum. jakarta: ui press. suci, i. d. a., & poesoko, h. (2011). hak kreditor separatis dalam mengeksekusi benda jaminan debitor pailit. yogyakarta: laksbang pressindo. sutedi, a. (2009). hukum kepailitan. bogor: graha indonesia. http://creativecommons.org/licenses/by-nc-sa/4.0/ 438 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia “capitalism without bankruptcy is like catholicism without hell.” ziad k. abdelnour economic warfare: secrets of wealth creation in the age of welfare politics http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.goodreads.com/work/quotes/18183912 https://www.goodreads.com/work/quotes/18183912 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: 7fbf23c93d8120cd • 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: 7fbf23c9eab02055 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(2) 2020 353 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article children as victims of sexual violence committed by parents: a criminological perspective joko susanto1, indah sri utari2 1 community movement against corruption (gmpk), semarang, indonesia 2 faculty of law, universitas negeri semarang, indonesia  bungjoko69@gmail.com cited as susanto, j., & utari, i.s. (2020). children as victims of sexual violence committed by parents: a criminological perspective. journal of law and legal reform, 1(2), 353-368. doi: https://doi.org/10.15294/jllr.v1i1.35451 abstract as the technology progress and human civilization, crime which is happened not only involve a crime towards life and property, but also a crime towards morality that is increasing. as a social problem criminal act of sexual violence in nowadays has been done by adult or elderly, even from a father to his children, and most of the victim are women and children. sexual violence is a violence which is happened because of sexuality issues. the subject of this journal is to know how the protection law for the young victim of sexual violence which is done by their parents. discussion method which is used is act approach (the statute approach). sexual violence usually is done toward their partner. this violence includes all of sexual violence types which are done by anyone to his sexual partner. including sexual violence which is done by a husband to his wife, just because he wants to satisfy his biological lust. criminal act of rape is worried, moreover when the victim are children which are still underage, because it will affect the developing of children’s psychology, inflict lifelong trauma, and the more pitiful is the children of sexual violence victim can be a prostitution worker. so that it ruins their future. keywords: protection law, young victim sexual violence, victimology submitted: 8 december 2019, revised: 23 january 2020, accepted: 27 january 2020 journal of law and legal reform (2020), 1(2), pp. 353-368. doi: https://doi.org/10.15294/jllr.v1i2.35406. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 354 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 353 table of contents ………………………………………………………….. 354 introduction …………………………………………………………………. 354 criminal act of rape and rape characteristic ………...……. 358 law protection for children as victims of sexual violence …………………………………………………………………………. 362 the factor of sexual violence towards child in victimology perspective ………………………………………………… 364 conclusion …………………………………………………………………….. 366 references ……………………………………………………………………... 367 introduction child is the next generation of nation and a father is a protector for his child if the child is still under his parent’s responsibility. as is arranged in convention of rights of the child which has ratified by government through presidential decree number 36 in 1990 and act of child protection number 23 in 2002, declare that children are those under 18 years old (art 1 paragraph 1, law no. 23 of 2002). the term “children” is referred to those underage, which means have not rational maturity, emotional, social and moral as adult yet. wide-spread sexual violence toward children needs serious attention considering the consequences of violence toward children will cause the children experience prolonged trauma. the more pitiful when the sexual violence is done by a parent toward their children. there are penalties for sexual violence or sexual abuse and morality in the criminal code that has taken hold since indonesia’s independent, sexual abuse and other criminal act of morality still develop from time to time and it tends to increase. indicator of the increase is seen from how much publication via both print and electronic media about pornography, porno action, sexual abuse, and other morality crime. also in the middle of bill for elimination of sexual violence which is never authorized by house of representatives, shows that the protection law for sexual abuse is still lack in indonesia. according the data from legal resources for gender justice and human rights noted i central java by 2018 there are 9 (nine) morality cases which are done by a father to his own daughter, this amount consists of 10 (ten) victims and 9 (nine) perpetrators. while until september 2019 there are 9 (nine) cases consist of 8 (eight) and 9 (nine) perpetrators. sexual violence which is done by father to his daughter not only can strike down a poor family or uneducated parents, but also can strike down wealth and educated family. whereas, a father supposed to be the keeper and protector of his family. yet, he gives bad effect for his children future, because they are forced to satisfy their father’s lust. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 355 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table 1 sexual violence cases which are done by father to his children (art. 1(1) indonesian child protection law). no perpetrator initial/father incident/residence the motives 1 ml denizen of blora district sexual immorality over three years toward his own child. 2 al denizen of kaliboto village, bener subdistrict, purworejo, raping his own child from third grade of elementary school for 6 years. 3 pro denizen of soka sidorejo lor village, sidorejo sub-district, salatiga raping his own child since the victim was 10 years old in 2014. until the victim was 15 years old. 4 rso denizen of pingit village, pringsurat, temanggung district raping his own child until pregnant. 5 as denizen of tahunan village, sale subdistrict, rembang district raping his own child who was still 14 years old. 6 bjr denizen of south kaliwungu subdistrict, kendal district, raping his own child who was 16 years old. he did it 8 times in 8 months. 7 yap denizen of leyangan village, east ungaran sub-district, semarang district raping his two own children who were 14 and 16 years old since 2008 until 2014. 8 wp denizen of karangkepoh, gondoriyo village, jambu sub-district, semarang district, is a teacher of islamic elementary school raping his stepchild, tq, until she was 15 years old. 9 psh warga kecamatan srumbung kabupaten magelang for a year and a half , the victim was raped by her biological father six times in total .the victim was 16 years old. incidents in semarang city 10 ps north semarang raping his own child who was still in the junior high school until four and a half months pregnant, http://creativecommons.org/licenses/by-nc-sa/4.0/ 356 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and she was still 15 years old. 11 hgw denizen of graha candi golf, semarang city raping his own child when she was in elementary school for a year since 2014 until 2015. 12 ap denizen of siwalan village, gayamsari sub-district raping his stepchild in the house when there was no people. 13 ag denizen of jomblang, candisari raping his two own children in turn, they were forced to serve their father’s lust for two years. 14 iar denizen of graha estetika pedalangan, banyumanik, semarang city he did sexual intercourse to his stepchild from junior high school through college. sexual violence is a violence which is happened because of sexuality issues. sexual violence usually is done toward their partner. this violence includes all of sexual violence types which are done by anyone to his sexual partner. including sexual violence which is done by a husband to his wife, just because he wants to satisfy his biological lust. sexual abuse is the type of persecution which is usually categorized based on the perpetrator’s identity, it consists of: 1. familial abuse familial abuse is incest sexual violence. someone which become surrogate parents, such as step-father or boyfriend are included in the definition of incest. 2. extrafamilial abuse extrafamilial abuse is a violence which is done by another people outside the family. sexual abuse which is done by adult is called as pedophile, which the main victims are children. the national commission for anti-violence for women noted that there are 15 (fifteen) types of sexual abuse, such as : 1. raping; 2. sexual intimidation includes threats or rape attempts; 3. sexual harassment; 4. sexual exploitation; 5. women trafficking for sexual purposes; 6. forced prostitution; 7. sexual slavery; 8. forced marriage; 9. forced pregnancy; 10. forced abortion; 11. forced contraception and sterilization; 12. sexual prosecution; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 357 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 13. inhuman and sexually punishment; 14. sexually tradition practices which endanger or discriminate women; and 15. sexual control, includes through discriminative rule which is reasoned morality and religion many kind of sexual violence lead to criminal case which reveals so far, commonly, it is done by people who still have a close relation or have known well with the victim, even in both family relation and neighbors, or the relation between the perpetrators with the victims who have known each other before. according to arif gosita (1985), victim is: “they who are suffered both physical and spiritual as a result of others act which are looking for self-interest fulfillment or other people, which is contradicted with that suffering’s interest and rights. they can be individual, or group of people of pvt. or government.” care and protection towards the victim of sexual violence is one of the important needs in every country to provide compensation, restitution and service for the victim of sexual violence, but actually, it is still difficult to contend the rights and interest of victim in the criminal justice system. victimology as a field of science which is studying all of the aspect related to the victim in every part of life and livelihood. protection towards the victim of sexual violence is an activity of developing human rights and obligation of human rights. care and protection towards the victim of sexual violence must be noticed because they are very sensitive with the various threats of mental disorder, physical, and social. moreover, they often do not have ability to take care, defend, and guard themselves. from the perspective of victimology, about the victim of sexual violence according to the author, includes in the types of victims: 1. non-participation victims, they who do not care with the effort of criminal surmount. 2. latent victims, they who have specific character so that tend to be victims. 3. proactive victims, they who caused stimulation of the crime. 4. participating victims, they who become a victim because of their attitude which makes them easy to be a victim. 5. false victims, they who become a victim because of their own deed they made themselves. then, according to arif gosita’s opinion, the types of rape victim are: 1. pure victim, consists of: a) rape victim who is never in touch with the perpetrator before rape. b) rape victim who had in touch with the perpetrator before rape. 2. multiply victim the rape victim not only experiences suffering when raped, but also experiences various suffering such as mental, physical, social. for instance, she experiences threats which disturb her soul, gets bad service during the court http://creativecommons.org/licenses/by-nc-sa/4.0/ 358 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia examination, does not get compensation, spends medical treatment money, is being isolated from sociality because of particular flaw, etc. 3. pseudo victim, who are actually both perpetrator and victim. she acts like she’s being raped. she did that with the aim to gain something from the perpetrator. a) there is a possibility if she did that based on her own desire. b) there is a possibility if she has been commanded, forced to do that for the commander’s interest. in other word, the perpetrator becomes the victim of another criminal deed. many victims of sexual violence are children and women. those, violence are not only happened in play circle, but also have happened in domain of education which should protect children from threat of sexual violence. therefore, it is needed regulation or act which can protect children and women from being the victim of sexual violence. law protection is the most important elements in a legal state, because law protection is the right of all citizens and the obligation from the country as the protection giver. the country provides protection by regulating it in various laws, one of which is in section 76 d of the law number 35 in 2014 about amendment of law number 23 in 2002 about child protection which declares: “everyone is forbidden to do violence or violence threat to force children to do sexual intercourse with him or others.” based on the above description, there are some problems that can be identified from that problem, it is about the factor of rape towards children from aspect of victimology and the effort which can be done to give law protection towards the child victim of criminal rape. this research refers to normative judicial research which is also called library research or document study because it does more towards secondary data inside the library. in normative research, secondary data as an information source can be primary law and secondary law source. normative research is also supported with empirical data, so the research gets adequate result as scientific content. data of this research is from secondary data which includes: 1. primary law material, binding material which consists of regulation of law. 2. secondary law material, which gives explanation about primary law material, like results of research, treatise from circle of criminal law and other secondary law material which related to another objects. criminal act of rape and rape characteristic criminal act of rape, as it regulated in criminal code section 285 is: “any person who by using force or threat of force forces a woman to have sexual intercourse with him out of marriage, shall, being guilty http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 359 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of rape, shall be punished with a maximum imprisonment of twelve years.” elements inside the criminal code section 285 are: 1) any person is the subject in the criminal act, which is in the criminal code there is no explanation about that but can be concluded that what “any person” or the subject in the criminal act means is person or human. the reason is to show that the subject of criminal act is first person is, for criminal offenses requires a mistake or responsible ability in criminal punishment as required by the principle of geen straf schuld. secondly, criminal type as required in criminal code section 10 just only means when applied to person or human. 2) violence is a physical power or physical action which caused other person physically helpless and cannot do against or defense. manifestation of violence in the rape crimes are, can be in the form of leaning, binding, drugging, squeezing, holding, injuring, and other physical action which objectively and physically caused someone helpless. in the rape crimes, this violence is done by the perpetrator as an effort to embody his purpose or his intent to rape. 3) violence threat is physical attack which caused someone becomes afraid so that he/she cannot do against or defense which not be done yet but caused other people are oppressed and have no choice except following the person who threats them with violence. 4) forcing elements in rape show that there is a contradiction of will between the perpetrator and the victim. there is no rape if there is no enforcement in the meaning of relationship is done with liking each other. there is no violence or violence threats if there is none who forces. 5) that who is forced to for sexual intercourse with woman out of marriage or there is not bound by marriage with the perpetrator. 6) had to happen sexual intercourse between the perpetrator and the victim. in a sense of no rape crime if there is no intercourse. this case is an intentional case implied, which is with violence or violence threat. acts which are forbidden in this section is the act which force woman out of marriage to have sexual intercourse with the perpetrator violently. criminal code section 285 regulated about criminal act of rape generally. the section emphasizes that any person who by using force or threat of force forces a woman to have sexual intercourse with him out of marriage, shall, being guilty of rape, shall be punished with a maximum imprisonment of twelve years. thus, it is known that rape according to judicial construction of constitution law in indonesia (criminal code) is act to force a woman who is not his wife to have sexual intercourse with him violently or violence threat. words “force” and “violently and “violence threat” have showed how horrible the rape is. http://creativecommons.org/licenses/by-nc-sa/4.0/ 360 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia wirdjono prodjodikoro revealed that rape is a man who forces a women who is not his wife to have sexual intercourse with him, so that the victim cannot against, so the victim wants to do sexual intercourse unwillingly. soetandyo wignjosoebroto, defines rape is an effort to vent sexual lust of a man toward a woman by breaking the prevailing moral and or legal laws. black’s law dictionary, formulated rape as follows: “…unlawful sexual intercourse with a female without her consent. the unlawful carnal knowledge of a woman by a man forcibly and against her will. the act of sexual intercourse committed by a man with a woman not his wife and without her consent, committed when the woman’s resistance is overcome by force of fear, or under prohibitive conditions…” in view of the perpetrator’s motives to do a rape, criminology mulyani w. kusuma divided them into some types, which are: 1) seductive rape a rape which happened because the perpetrator feels horny, and it is very subjective. usually, the types of rape like this is happened between those who have known each other, for example rape towards girlfriend, friend, or closest people. factor of intercommunication or social interaction really influence in the rape. 2) sadistic rape a rape which is done sadistically. in this case, the perpetrator gets sexual satisfaction not because of have sexual intercourse, but because a violence activity which is done towards the woman’s body, especially in her genital organ. 3) anger rape a rape which is done as the expression of the perpetrator’s anger. this type of rape usually comes with brutal activity physically. sexual satisfaction is not the main goal of the perpetrator’s, but it is to vent his anger. 4) domination rape in this case, the perpetrator wants to show his domination towards the victim. physical violence is not the main goal of the perpetrator’s, because he just wants to control the victim sexually. thus, the perpetrator can prove to himself that he has power of controlling some people, for instance the rape victim of a boss to his maid. 5) exploitation rape this type of rape can happen because of an addiction from the victim towards the perpetrator, both economically or socially. in this case, without using physical violence, the perpetrator can enforce his will to the victim. for instance, a rape from the boss to his worker. even though there is a deal, it is not because there is a sexual will from the victim, but there is a fear of being fired from her job. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 361 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the types of rape victim can be seen from these things: 1. pure victim a. rape victim who is never in touch with the perpetrator before rape. b. rape victim who had in touch with the perpetrator before rape. 2. multiply victim the rape victim not only experiences suffering when raped, but also experiences various suffering such as mental, physical, social. for instance, she experiences threats which disturb her soul, gets bad service during the court examination, does not get compensation, spends medical treatment money, is being isolated from sociality because of particular flaw, etc. 3. pseudo victim who are actually both perpetrator and victim. she acts like she’s being raped. she did that with the aim to gain something from the perpetrator. a. there is a possibility if she did that based on her own desire. b. there is a possibility if she has been commanded, forced to do that for the commander’s interest. in other word, the perpetrator becomes the victim of another criminal deed 4. invisible victim is the victim which actually feels violence, persecution, but because of certain things, it is not considered as suffer violence based on certain groups of people. for instance, in giving a corporal punishment, forcing sexual satisfaction by a husband towards his wife, etc. main characteristic (specific) of the criminal act of rape according to kadish is not the expression of the aggressive expression of sexuality, but sexual expression of aggression. it means, manifestation of sexual will which is done aggressively, offensive or coercive the opposite sex which can consider able to fulfill his lust-interest (atmasasmita, 1995). general characteristic of the criminal act of rape: 1. aggression, is an inherent trait in every criminal act of rape. 2. violence motivation stands out more than just sexual motivation. 3. psychologically, criminal act of rape contains more emotion control and anger than lust. 4. the criminal of rape can be charged into three forms, which are: anger rape, power rape, and sadistic rape, and it is reduced from anger and violation , control and domination, erotic. 5. the characteristic of the rape perpetrator: misperception of the perpetrator towards the victim, experienced bad experience especially in personal relationship (love), emotional. 6. the victim is the participant, according to meier and miethe, about 4-19% criminal acts of rape are happened because of the victim’s negligence (participation). 7. the criminal act of rape legitimately is difficult to prove. violence which happened not only give bad effect on physical endurance, but also her psychological endurance, the victim will be afraid to report the case that had happened to her because she worries of her physical flaw or her psychological which will be known by the public, law enforcement authorities also will experience http://creativecommons.org/licenses/by-nc-sa/4.0/ 362 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia difficulty while looking for the evidences to reveal criminal act of rape which is not supported by the victim parties. law protection for children as victims of sexual violence law number 23 in 2002 about child protection jo. law number 35 in 2014 about amendment on law number 23 in 2002 about child protection not only regulated sexual violence which is a sexual exploitation. sexual exploitation is explained in law number 35 in 2014 number 43 section 66: “any form of sexual organ use or other organ from child to gain benefit, is included but not limited on every activity of prostitution and rape.” besides sexual exploitation, the same section also explains about economic exploitation which is “the action which is with or without the child’s agreement who becomes the victim which includes prostitution, work or forced service, slavery or practice like slavery, or similar practice of slavery, bullying, extortion, physical exploitation, sexual, organ reproduction, or against the law transplant or move organs and/or body tissue or harnessing a child’s energy or ability by others to achieve material advantages”. although the type of sexual violence is a sexual exploitation as noted in the law of child protection, this regulation can only be used to give protection to the victim of sexual exploitation if the victim is still a child. the law of child protection uses words “sexual intercourse” and “obscene acts” to show sexual violence toward children. besides, law number 35 in 2014 also declares a phrase which is sexual violence, but does not give the definition of what sexual violence means. but in criminalization, this law just regulated about criminal threat toward anyone who forces child to do sexual intercourse with him and children exploitation. therefore, this law cannot be used to ensnare the perpetrator who does sexual violence outside of activities as sexual intercourse or sexual exploitation. this law is also not regulated prevention in order to prevent the child from sexual violence activity. though, formulated the norm of parents’ obligation to prevent underage marriage, this regulation is not accompanied with the form of criminalization if the parents do not prevent underage marriage. according to soerjono soekanto which is quoted by mulyana w. kusuma, the cause of criminal with violence are: a. there is an orientation toward thing that caused a desire to achieve material easily. b. there is no distribution of desire and there is a mental pressure towards someone. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 363 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia c. a courage of taking a risk. d. the lack of guilty and there is a bad exemplary (kusuma, 1982). violence towards women obstructs or vanishes the possibility of women to enjoy her freedom and rights (sadli, 2001). in the criminal acts of rape, the most suffered is the victim. declaration of basic principles of justice for victims of crime and abuses of power defines victim as below: “victims” means persons who, individually, or collectively, have suffered harm, including physical or mental injury, emotional suffering, economic loss or substantial impairment of their fundamental rights, through acts or omissions that are in violation of criminal laws operative within member states, including those laws proscribing criminal abuse of power. related to the protection of criminal victim, it needs to make an institution which especially handles it. but, it needs to be delivered first an adequate information about what rights which is owned by the victim and her family, if someday they experienced lost or suffer as the result of the criminal which is happened to her. what can be done to give law protection toward child victim violence are (zuleha, 2015): a. rehabilitation effort, both inside the institution or outside of the institution; b. protection effort from identity suffer through mass media and to prevent labelling; c. provides assurance of safety for witness victim and witness expert, both physical, mental, or social; and d. provides accessibility to get information about the developing of the case. law protection towards child victim of sexual violence stated that a child who becomes the victim of the criminal act of rape has a right to get rehabilitation from the government both physically, mentally, spiritually, and socially. moreover, her privacy and her good name must be protected and must be cared, her safety as the witness victim becomes the responsibility of the government, and she has a right to know the developing of her case and entitled to be notified if the perpetrator has been released or taken out of prison (if the perpetrator is convicted). if the perpetrator is not convicted, for instance, because the proof is not strong enough, the victim should be given an access to get protection, so a revenge from the perpetrator will not happen. coordination with police must be done, so that the police will look for help when the police got violence towards woman report. this institution need to be supported as least with the social worker, psychologist, jurist, and doctor. in the condition of areas which are not allowed, it must be strived for placing the people with the same qualify as the professional above, in the order to make this institution reach its goal which is well needed. funding for this institution must be started from the government itself, both central and regional, and certainly, it can involve the community, both individual or as a group. http://creativecommons.org/licenses/by-nc-sa/4.0/ 364 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the factor of sexual violence towards child in victimology perspective sudarto thinks that to overcome violence needs an effort which is rational from the community, it is criminal politic way. regulation or effort to overcome violence actually is the part of integral from the effort of social defense. in other words, the main goal of criminal politic is social defense to reach social welfare (arief, 2002). some results which are happened are the victim feels embarrassed and does not want her lack which is happened to her is known by everyone, or the victim feels afraid because has threatened by the perpetrator that she will be murdered if she reports the incident to the police. this case, certainly, will affect the developing of the victims’ mental and also will affect to the process of law enforcement itself to embody the sense of justice for the victim’s family and the community. the victim’s factor is important to overcome or finish this rape case, it needs courage from the victim to report the incident which is happened to her to the police, because, commonly the victim is experienced threats which the rape will happen again, and in this case, the perpetrator makes the victim feels afraid and trauma. from this report, we expected that the case will be opened and the assessment process can be done, so that the victim will get justice from what has happened to her. according to positive laws, the victim parties can prosecute for the lack or compensation towards the convict parties. criminal act of rape is one forms of violence towards women, which is as the example female vulnerabilities position, especially for men’s sexual interest. sexual image of women which has put as a sexual object for men, evidently is affected towards the women’s life, so they are forced to always face violence, force, and persecution both physical and psychological. care and protection for the victim of rape’s importance through criminal justice process or way of social concern is the absolute part which needs to be considered in the criminal law policy and social policies, both by executive institutions, legislative, and judicial or by the social institutions which exist. the national commission for anti-violence for women said that the status of “urgency of sexual violence” is resulted from the weakness of the conducting effort from the country, including law enforcement against perpetrators. the national commission for anti-violence for women noted that there are 15 (fifteen) types of sexual abuse based on the observation result, such as: 1. raping. rape can be called as an assault in the form of coercion of sexual intercourse. in that sexual assault there are forced effort, violence, psychological pressure, self-abuse, or take a chance from the environment which is full of coercion. rape often identified with another rape in indonesia law. 2. sexual intimidation includes threats or rape attempts. there acts of sexual assault to create fear and psychological distress of the victim which can be delivered directly or by short text. threats or attempted rape are including to this category. 3. sexual harassment. this is a physical or non-physical sexual acts with the target is victim’s sexual organs. the national commission for anti-violence for women http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 365 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia put whistling, flirt, sexual innuendo, and show pornography content in this category. 4. sexual exploitation. it is misuse of undeveloped power, or misuse of trust, for sexual satisfaction, or to gain benefit. the most often type which is happen is using the poverty of the woman’s family to put her in the prostitution or pornography business. 5. women trafficking for sexual purposes, covering recruiting action, transporting, retrieving, forwarding, moving, or accepting someone with force or persuasion for the purpose of prostitution and other sexual exploitation. 6. forced prostitution, is a condition where the victims are manipulated, threatened, violent, to became sex workers. 7. sexual slavery, is a condition where the perpetrator feels become the ”owner” on the victim body, so that he has right to do anything include gets sexual satisfaction through rape or other ways. 8. forced marriage. this early marriage or forced marriage toward someone underage because inside of that will be sexual force. suspended divorced also includes this category. 9. forced pregnancy. a condition where the woman is forced to continue her pregnancy which is not wanted. for instance, it happens to woman rape victim. 10. forced abortion, is the abortion which is done because there are pressure, threat, or force from another parties. 11. forced contraception and sterilization. it is called a forcing when there is an installation of contraceptives or sterilization without full agreement from the partner, maybe because of the minimum information or because legally incompetent to give agreement. it can happen to woman who has hiv/aids. 12. sexual prosecution, is an act who assault the victim’s organs or her sexuality, which is done purposeful so it evokes pain or worst suffering. 13. inhuman and sexually punishment this falls in category of sexual violence because the way of punishment which affect suffering, pain, fear, or huge embarrassment. include caning law or another humiliating punishment. 14. sexually tradition practices which endanger or discriminate women. community habits, on occasion religious and tradition grounds which are sexually, and can create physical, psychological or sexual injury on the victim is put by the national commission for anti-violence for women as one of sexual violence. 15. sexual control, includes through discriminative rule which is reasoned morality and religion. perspective which accuses woman as the reason of sexual violence becomes the base to control women’s sexuality. if we talk about the criminal victim, so, our perspective cannot miss from victimology. through victimology can be known various aspects which are related with the victim, such as: factors causing crime, how someone can be a victim, effort to decrease the victim of criminality, the victim’s rights and obligation. if we see it from victimology perspective, the victim of sexual violence include these types: 1. non-participation victims, they who do not care with the effort of criminal surmount. http://creativecommons.org/licenses/by-nc-sa/4.0/ 366 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. latent victims, they who have specific character so that tend to be victims. 3. proactive victims, they who caused stimulation of the crime. 4. participating victims, they who become a victim because of their attitude which makes them easy to be a victim. 5. false victims, they who become a victim because of their own deed they made themselves. then, taking the from ezzat abdul fathah’s opinion, he differentiate the victim of sexual violence category as follows: 1. non-participation victims, they who have refusal character or anti-criminal towards crime and criminal, also they who do not participate in the cause of crime which is directed against them. 2. latent victims, they who have specific character which put them as the victim from a criminal act. 3. unrelated victim, they who do not relate with the perpetrator at all. the perpetrator usually does his deed just based on his own decision, and it is unrelated with the victim’s condition. 4. provocative victim, consists of the victims who have done something towards the perpetrator, so that the perpetrator is pushed to make them as the victim. therefore, in this category, the victim does something so the perpetrator is pu shed to do a crime. 5. precipitation victim, they who be a victim although they do not do something towards the perpetrator. someone who is careless and reckless creates temptation for the perpetrator to do a bad thing to her. 6. a victim of physical weakness, consist of group of people who have specific physical or psychological characteristic so that with these characteristics can encourage someone to do a crime. they who includes to this category is women and underage children who become the victim of crime. 7. victim of themselves, is the category of people who become both victim and perpetrator. for instance, drug addict, alcoholic, gambling, etc. basically, the term of sexual violence like rape has regulated in section 289 to 296 criminal code. then, rape has regulated in section 285, 286, 287, 289 and 290 criminal code. besides, there are many legislations that regulate about sexual violence crime outside the criminal code, such as act number 11 in 2012 about the child criminal justice system, act number 23 in 2004 about abolition of domestic violence, and act number 35 in 2014 about amendment act number 22 in 2002 about child protection. conclusion the abolition of sexual violence law is needed to regulate some things which are not regulated yet in the law of child protection and other legislations, so that all the rights of victim of sexual violence both children or adult can be fulfilled, on the truth, justice, recovery, sense of justice, and unrepeated guarantee. reminding from the principal of lex posteriori derogat legi priori, so, the act of abolition of sexual violence http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 367 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia will fill the legal vacuum of act of child protection and also updating the form of punishment in act of child protection, also recovery and protection for child who become the victim of sexual violence which is not regulated yet specifically in act of child protection. factors of sexual violence toward children from victimology perspective, they are, the victim feels embarrassed and does not want her lack which his happened to her is known by other people, or the victim feels afraid because has threaten by the perpetrator that she will be killed if she reports that incident to the police. of course, this is affected on the psychological development of the victim and also affected on the process of law enforcement itself to actualize sense of justice for the victim and community. the amendment of act number 23 in 2002 through act number 35 in 2014 has declared special protection directed to children who are exploited sexually or economically, which include rehabilitation and recovery effort. include regulating rules that the victim has right to propound right on the restitution to the court where the restitution is the perpetrator obligation. this law also explains what the effort are done to actualize the fulfilled of special protection for child the victim of sexual crime. this rule is accompanied by notes of unsustainable analysis about how the child’s right of recovery technically and continuously ensured and enjoy by the victim. the efforts than can be done to give law protection towards victim of criminal act of rape are: rehabilitation effort, both in the institution and outside it, protection effort from identity publication through mass media and to avoid labelling, give save guarantee for the victim witness and expert witness, both psychological or social and give accessibility to get information about the case progress. references arif gosita, 1985,masalah perlindungan anak, jakarta: presindo akademika. arsip berita wartawan hukum jawa pos radar semarang, susanto wawancara pada 12 oktober 2019. arif gosita, 1987, relevansi viktimologi dengan pelayanan terhadap para korban perkosaan (beberapa catatan), jakarta: ind.hill-co. abdul wahid, muhammad irfan, 2011, perlindungan terhadap korban kekerasan seksual, advokasi atas hak asasi perempuan, bandung: pt refika aditama. barda nawawi arief, 2002, bunga rampai kebijakan hukum pidana, bandung: citra aditya bakti. dikdik m. arief mansur-elisatris gultom,2007, urgensi perlindungan korban kejahatanantara norma dan realita, jakarta: radjagrafindo persada. http://repository.usu.ac.id/ pada tanggal 10 oktober 2019. http://www.hukumonline.com/ pada tanggal 10 oktober 2019 mulyana w. kusuma, 1982, analisa kriminologi tentang kejahatan-kejahatan kekerasan, jakarta: ghalia indonesia. ni nyoman sukerti, 2007, kekerasan seksual dalam rumah tangga, semarang: syair media. http://creativecommons.org/licenses/by-nc-sa/4.0/ 368 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia oloan sitorus dan darwisnyah minin, 2006, cara penyelesaian karya ilmiah di bidang hukum :dasar panduan menuntaskan skripsi, tesis, dan disertasi, cetakan kedua, edisi revisi, yogyakarta: mitra kebijakan tanah. romli atmasasmita,1995, kapita selekta hukum pidana dan kriminologi, bandung: mandar maju. suparman marzuki, 1997, pelecehan seksual, yogyakarta: fakultas hukum universitas islam indonesia. saparinah sadli, 2001, beberapa catatan tentang kekerasan terhadap perempuan di indonesia, jakarta: program studi kajian wanita pps-ui. selin dan wolfgang dalam siti suhartati astoto, 1990, tinjauan viktimologis terhadap korban-korban tindak pidana lalu lintas dalam kaitannya dengan pasal 359 dan pasal 360 kuhp, jakarta: fakultas pasca sarjana ui. topo santoso, 1997,seksualitas dan hukum pidana, jakarta:ind.hill-co. wirdjono prodjodikoro, 1986, tindak-tindak pidana tertentu di indonesia, bandung: eresco. zuleha, 2015, jurnal hukum samudera keadilan, perlindungan hukum terhadap anak korban pemerkosaan dalam perspektif viktimologi, aceh: fakultas hukum universitas samudra (unsam). draft bill of abolition of sexual violence act number1 in 1946 about the enforcement of criminal code act number 8 in 1981 number 76 in 1981, about criminal code procedure statute book, tln number 3209. act number 7 in 1984 about legalization of convention about every kind of discrimination toward women. law number 35 in 2014 about amendment of law number 23 in 2002 about child protection. law number 23 in 2002 about child protection jo. law number 35 in 2014 about amendment of law number 23 in 2002 about child protection. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 295 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article indonesian penal reform: concept and direction of thought gita nuzula ‘allamah1, ali masyhar2 1 h. sriyanto sh mh mm and partners law office and advocates perum pejagoan indah blok b no. 12-13 k, pejagoan, kebumen, 54361, indonesia 2 faculty of law, universitas negeri semarang, indonesia  gitanuzula7@gmail.com cited as allamah, g. n., & masyhar, a. (2021). indonesian penal reform: concept and direction of thought. journal of law and legal reform, 2(2), 295-310. https://doi.org/10.15294/jllr.v2i2.46628 submitted: november 27, 2020 revised: march 25, 2021 accepted: april 30, 2021 abstract criminal law reform is essentially an effort to review and reform (reorientation and reform) criminal law in accordance with the development of the sociopolitical and socio-cultural values of indonesian society that underlie social policies, criminal policies and law enforcement policies in indonesia. criminal law reforms in the context of improving the penal system are still being carried out. the reform of indonesian law is currently directed at efforts to reorient the substance of criminal law rules which are considered no longer relevant to the life of the indonesian people because many evil acts in the optics of society are not considered evil and are prohibited in the optics of positive law. all happened because indonesian criminal law in general is a legacy from the dutch, which is culturally different from the culture of indonesian society which is eastern style. if you place the law as a reflection of society, then the current indonesian criminal law does not reflect this, then the reform of indonesian criminal law currently leads to a reorientation of the substance of indonesian criminal law according to the will of the community. keywords: penal reform; renewal of criminal law; concept journal of law and legal reform (2021), 2(2), pp. 295-310. doi: https://doi.org/10.15294/jllr.v2i2.46628 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46628 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 296 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction law is a description or reflection of the society in which the law applies. the law that applies in indonesia will be effective if the law comes from the spirit of the people who created the law itself, namely the indonesian legal community. as has been described above, that the laws that apply in our country today are no longer able to answer the challenges of the times, so a revolutionary change is needed in the sense that there is a need for a fundamental change from the existing law and legal system. pancasila as the root of the legal ideals of the indonesian nation has a consequence that in the dynamics of the life of the nation and state, as a view of life adopted, it will provide coherence and direction (direction) in thoughts and actions. the idea of law is the idea, intention, creativity and thought regarding the law or the perception of the meaning of law, which in essence consists of three elements, namely justice, usability, and legal certainty. the ideals of law are formed in the minds and hearts of humans as a product of the unified view of life, religious beliefs, and social realities. in line with that, indonesian law and law should rely on and refer to these ideals of law (sidharta, 2010: 84-85). many of the laws in force in indonesia come from the legacy of the dutch colonial rule, for example the criminal code (kuhp) which was written in the early 19th century and often contradicts the social conditions of the indonesian people in contemporary times today. this of course requires an effort to adjust to the level of progress of society, so that criminal law in indonesia requires reform efforts. thus, the idea of reforming and developing national criminal law is essentially inseparable from political, philosophical, sociological, and other practical considerations as reasons for reforming the national criminal law. the consequence of the law that continues to undergo changes, changes, reforms and legal reforms will lead to progressive laws in the future, which aim to strengthen the virtues of law so that they are supposed to last a long period of time. in a repressive type of legal order, law is seen as a servant of repressive power and an order from a sovereign (bearer of political power) who has unlimited discretionary authority. in this type, law and the state and politics are not separate, so that the instrumental aspects of the law are more prominent (dominant is more prominent to the surface) than the expressive aspects. in the autonomous type of legal order, law is seen as an independent institution capable of controlling repression and protecting its own integrity. the legal order is based on the rule of law. subordination of official decisions to law, legal integrity, and within that framework legal institutions and ways of thinking have clear boundaries. in this type is procedural justice that highly emphasized. in the responsive legal type, the law is seen as a facilitator of responses or suggestions for responses to social needs and aspirations. this view implies two things. first, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 297 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the law must be functional, pragmatic, purposeful and rational. second, goals set the standard for criticism of what is working. in this type, the expressive aspect of law is more prominent than the other two types and substantive justice is also concerned with procedural justice. through this responsive type of law, satjipto rahardjo considers it an ideal type of law (rahardjo, 1982: 139). in the same context, barda nawawi arief, the development of general regulations on the criminal code since the enactment of law no. 1 of 1946 regarding the criminal law regulations to date, has not undergone any fundamental changes, because basically the general principles of criminal law and punishment in the criminal code are still like those of the dutch east indies wvs (arief, 2009: 4). legal reform cannot be separated from the concept of legal reform, which has a very broad scope, because legal reform does not only mean reforming laws and regulations. legal reform includes the legal system as a whole, namely reform of the legal substance, legal structure, and legal culture. in essence, criminal law reform is an effort to review and reform (reorientation and reform) criminal law in accordance with the development of socio-political and socio-cultural values of indonesian society. therefore, the exploration of community values in the effort to reform indonesian criminal law must be carried out so that the indonesian criminal law in the future is in accordance with the current conditions of the socio-political and socio-cultural indonesian society. in its implementation, the exploration of this value is based on positive criminal law, customary law, religious law, criminal law in other countries, as well as international agreements regarding the material of criminal law. religious law, especially that which is adhered to by the majority, namely islam, needs to be a source for modern and contemporary legal reform because the interpretation of religious law also follows the development of society (maula, 2010: 10). the reform of indonesian criminal law aimed at accommodating the laws that live in society into the content of criminal law regulations is a form of criminal politics through efforts to criminalize acts. such an effort is an effort to suppress crimes that occur in society, at the same time being linear with efforts to create welfare because conduciveness in the social life of the community is one of the supporting factors for the creation of community welfare. legal pluralism is an advantage but also a problem because legal pluralism if it is not accommodated in statutory regulations can trigger the ineffectiveness of the law, because the law is not in line with the culture of society, or it means that the community does not want laws that are incompatible with society (prasetyo, 2015: 20). as a public law, criminal law finds its importance in legal discourse in indonesia. in the criminal law, there are rules that determine the actions that may not be carried out accompanied by threats in the form of punishment and determine the conditions for which the penalties can be imposed. the public nature of criminal law has a consequence that the criminal law is national in nature. http://creativecommons.org/licenses/by-nc-sa/4.0/ 298 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia thus, indonesian criminal law is enforced throughout the territory of the indonesian state. in addition, considering that the material of criminal law is full of humanitarian values, criminal law is often described as a double-edged sword. on the one hand, criminal law aims at upholding human values, but on the other hand, criminal law enforcement actually imposes sanctions on misery for humans who violate it. therefore, discussion of the material of criminal law is carried out with extra caution, namely by paying attention to the context of the community in which criminal law is enforced and still upholding civilized human values. the issue of suitability between criminal law and the community in which the criminal law is enforced is one of the prerequisites for whether or not criminal law is good. this means that criminal law is considered good if it meets and conforms to the values held by society. conversely, criminal law is considered bad if it is outdated and not in accordance with the values in society (pradityo, 2017: 137). this paper seeks to examine the concept of reforming indonesian criminal law as part of legal reform efforts in welcoming the reform of indonesian criminal law. in addition, this paper also examines the direction of criminal law reform in the main points of thought or basic ideas or socio-philosophical, socio-political and socio-cultural values that underlie criminal policies and criminal law enforcement policies so far. method this study uses a normative juridical research method, namely research with a focus on the study of norms in positive law. the approach used in this research is a conceptual approach, namely the concept/direction of reform of indonesian criminal law. legal materials in this study use literature legal materials from number of literatures that are relevant to the focus of this study (ibrahim, 2006: 57). the concept of indonesian criminal law reform indonesian criminal law is a legacy of colonial law when the dutch colonized indonesia. if indonesia declares itself as an independent nation since august 17, 1945, then it is appropriate that indonesian criminal law is a product of the indonesian nation itself. however, this idealism did not match the reality. indonesian criminal law is still using the criminal law inherited from the netherlands. politically and sociologically, the enforcement of this colonial criminal law clearly created problems for the indonesian nation. in essence, criminal law reform is an effort to review and reform (reorientation and reform) criminal law in accordance with the development of socio-political and socio-cultural values of indonesian society. therefore, the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 299 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia exploration of community values in the effort to reform indonesian criminal law must be carried out so that the indonesian criminal law in the future is in accordance with the current conditions of the socio-political and socio-cultural indonesian society. in its implementation, the exploration of this value is based on customary law, positive criminal law, religious law, criminal law in other countries, as well as international agreements on the material of criminal law (muladi, 2005: 4). criminal law is part of the legal system or norm system. as a system, criminal law has the general nature of a system, namely wholism, has several elements, all elements are interrelated (relations) and then forms a structure. lawrence w. friedman divides it into three elements, namely structural elements, substance elements, and legal culture elements (friedman, 2015: 1218). from the description above, there is the determination of the indonesian nation to realize a criminal law reform which can be interpreted as an attempt to reorient and reform criminal law in accordance with the central values of sociopolitical, socio-philosophical and socio-cultural which underlie and giving sides to the aspired normative content and substance of criminal law (arief, 2010: 30). legal reform in a legal system includes four main aspects of the legal system, namely: a. philosophical aspects, namely the existence of values that underlie the legal system. b. legal principles aspects. c. normative aspects, namely the existence of norms or laws/regulations. d. sociological aspects, namely the legal community as supporters of the legal system. these four basic aspects are arranged in a series one by one which forms a substantive system of law (national) (ariyanti, 2019: 183). the essence of legal reform is how to renew the law in a legal system so that the four main aspects above are in one unity or have a unifying fabric. the definition of unity here is intended so that these four aspects become one for the whole or the whole (wholism), are interrelated (relations) and form a structure (ariyanti, 2019: 184). the meaning of criminal law reform for the benefit of indonesian society refers to two functions in criminal law, the first is the primary or main function of criminal law, is to tackle crimes. meanwhile, the secondary function is to ensure that the authorities (government) in overcoming crimes actually carry out their duties in accordance with what has been outlined by the criminal law. in its function of overcoming crime, criminal law is part of criminal politics, in addition to non-penal efforts in such countermeasures. given this function, the formation of criminal law will not be separated from a review of the effectiveness of law enforcement. the need for criminal law reform is also related to the substance of the kuhp which is dogmatic in nature (teguh & aria, 2011: 8). efforts to reform criminal law in the formation of a national criminal code are a basic necessity for society in order to create fair law enforcement. criminal http://creativecommons.org/licenses/by-nc-sa/4.0/ 300 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law is an effort to tackle crime through the criminal law, so that the fear of crime can be avoided through criminal law enforcement with criminal sanctions. criminal law with the threat of criminal sanctions cannot be a legal guarantee or the main threat to human freedom in social and state life. the criminal sanctions referred to here, to restore the original situation as a result of a violation of the law committed by a person or by a group of people, require certainty and law enforcement. such criminal sanctions will be obtained by the formation of the national criminal code that reflects the values, society of indonesia (teguh & aria, 2011: 10). the reform of indonesian criminal law is based on the following reasons: a. the criminal code is seen as no longer in accordance with the dynamics of the development of indonesia's national criminal law. b. the development of criminal law outside the criminal code, both in the form of special criminal law and administrative criminal law, has shifted the existence of the criminal law system in the criminal code. this situation has resulted in the formation of more than one criminal law system that is applicable in the national criminal law system. c. in several cases there have also been duplication of criminal law norms between the criminal law norms in the criminal code and the criminal law norms in laws outside the criminal code (arief, 2010: 9). the current criminal code does not regulate the concepts adopted in relation to the meaning of criminal acts and criminal liability. this situation often creates debate as well as differences in the enforcement of criminal law in indonesia. although basically most of the teachers of dutch criminal law are influenced by a monistic view, which basically sees the issue of accountability as part of a criminal act. this means that in a criminal act itself includes the ability to be responsible. it has been a long time since indonesia has developed dualistic thinking, one of which is specifically influenced by prof. moelyatno as conveyed in his inaugural speech as a professor at gajah mada university, which basically assumes that the concept that separates "criminal acts" from the issue of "criminal liability" is considered more in line with the way of thinking of the indonesian people. this concept seems to have been used as one of the bases in updating the criminal code, as seen in the title of chapter ii (book i), namely "criminal actions and criminal accountability" (pohan, 2010). the three pillars of criminal law reform are influenced by the use of the dualistic concept referred to above, the pillars of reforming indonesian criminal law include: a. criminal act. b. criminal responsibility. c. criminal and criminal (punishment and treatment system) (anwar & adang, 2008: 50). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 301 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the meaning and essence of criminal law reform can be pursued in two ways as follows: a. viewed from a policy approach point of view. 1) as part of social policy, criminal law reform is essentially part of an effort to overcome social problems in order to achieve / support national goals (community welfare). 2) as part of the criminal policy, criminal law reform is essentially a part of public protection efforts (particularly efforts to combat crime). 3) as part of law enforcement policies, criminal law reform is essentially part of an effort to renew the substance of the law in order to make law enforcement more effective. b. seen from the point of view of the value approach that the reform of criminal law is essentially part of an effort to review and reassess the socio-political, socio-philosophical and socio-cultural values that underlie and provide content to the aspired normative & substantive content of criminal law (arief, 2010: 29-30). reforming criminal law has become an urgent need for fundamental changes in order to achieve the goals of a better and more humane crime. this need is in line with the strong desire to be able to realize a law enforcement that is more just for every form of criminal law violation in this reform era. an era that urgently needs openness, democracy, protection of human rights, law enforcement and justice/truth in all aspects of the life of society, nation and state. in this reform era, there are 3 factors of criminal law order that are very urgent and must be renewed immediately. first, positive criminal law to regulate aspects of community life is no longer in accordance with the times. some of the positive criminal law arrangements are legacy products of colonial law such as the criminal code, where the provisions in the criminal code lack social relevance to the conditions it regulates. second, some of the provisions of positive criminal law are no longer in line with the spirit of reform which upholds the values of freedom, justice, independence, human rights and democracy. third, the application of positive criminal law provisions creates injustice to the people, especially political activists, human rights and democratic life in this country (arief, 2010: 8-9). in reforming criminal law in indonesia, it must first be known about the main problems in criminal law. this is so important, because the criminal law that applies nationally, as sudarto said, is also a reflection of a society that reflects the values that are the basis of that society. if these values change, then the criminal law must also change (abidin, 1993: 3). the main thought of criminal law renewal efforts to reform criminal law, in essence, include the field of criminal law policy which is part of and closely related to law enforcement policies, criminal policies http://creativecommons.org/licenses/by-nc-sa/4.0/ 302 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and social policies. therefore, the reform of criminal law is in principle part of a policy (rational effort) to renew the substance of the law in order to make law enforcement more effective, tackle crimes in the framework of protecting society, and overcome social problems and humanitarian problems in order to achieve national goals, namely social protection and social welfare (arief, 2011: 3). in addition, criminal law reform is also part of an effort to review and reassess basic thoughts or ideas or socio-philosophical, socio-political and sociocultural values that underlie criminal policies and criminal law enforcement policies so far. it is not a criminal law reform if the idealized value orientation of the criminal law is the same as the value orientation of the old criminal law inherited from the colonizers (kuhp wvs). thus, criminal law reform must be formulated with a policy-oriented approach, as well as a value-oriented approach. therefore, criminal law reform should be based on the basic ideas of pancasila, which is the basis for the values of national life that are aspired to and explored for the indonesian nation. the basic ideas of pancasila contain a balance of values/ideas in it. the following is the balance of ideas/values in question: 1. religious. 2. humanistic. 3. nationalism. 4. democracy. 5. social justice (arief, 2011: 4). if the balance of the five ideas is difficult to explore and implement, then it can be compressed into three balances, namely: 1. religious. 2. socio-democracy (unification of the ideas of democracy and social justice). 3. socio-nationalism (union between humanistic ideas and nationalism). and if the three condensed ideas are still deemed difficult to explore and implement, one idea is sufficient, namely gotong royong (gotong royong), which includes all the previously formulated ideas. if it is related to the concept of criminal law reform (the material criminal law system and its principles) which is currently being fought for, it must be based on the main ideas mentioned above. in principle, the idea is simply called the idea of balance. this balance idea includes several things, namely: 1. monodualistic balance between public interest and individual interest. 2. balance between protection/interests of criminal offenders (the idea of criminal individualization) and victims of criminal acts. 3. the balance between the objective (action/outer) and subjective (person/mental attitude) factors is commonly called the daad-dader strafrecht idea. 4. balance between formal and material criteria. 5. balance between legal certainty, flexibility and justice. 6. balance of national values and universal values (arief, 2011: 7). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 303 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia then, this idea of balance is also manifested in three main problems of criminal law, namely in matters of criminal acts, problems of criminal error/liability, as well as problems of crime and conviction. briefly and take only one example each, the following is a brief description of the implementation of the idea of balance into the three main problems of criminal law. 1. crime issue (legal source / legal basis) legal sources or legality bases to declare an act as a criminal act, are not only based on the principle of formal legality (based on law), but also based on the principle of material legality, namely by giving place to living law or unwritten law in society. therefore, it is necessary to expand the legality principle based on: a. the basis of national legislative policy after independence. b. the foundation of scientific agreement, through national seminars, for example. c. sociological foundation. d. universal and comparative basis (comparison). 2. error issue (criminal liability). the principle of no punishment without error (the principle of culpability) which is the principle of humanity, is explicitly formulated in the concept as a pair of the legality principle which is the principle of society. the concept of renewal also does not view the two principles as rigid and absolute conditions. in certain cases, the concept provides the possibility to apply the principle of strict liability, the principle of vicarious liability and the principle of forgiveness or forgiveness by judges (rechterlijk pardon or judicial pardon). in the principle of forgiveness or forgiveness by judges, there are several points of thought, including to avoid the rigidity or absolutism of punishment, as well as a form of judicial correction of the legality principle. this is solely so that judges in enforcing the law are not only for the law itself (soedarto, 2010: 100). 3. criminal and criminal matters. the idea of balance implemented in criminal and criminal matters is as follows: a. purpose of criminalization. starting from the idea that the criminal law system is a unitary system that aim and the criminal is only a means to achieve the goal, the concept of formulating the objectives of punishment is based on the balance of two main objectives, namely protection of the community and protection / fostering of individuals. in another sense, the way criminal law works must face social realities. b. terms of criminalization. starting from these two main objectives, the terms of punishment according to the concept also depart from a mono-dualistic balance, http://creativecommons.org/licenses/by-nc-sa/4.0/ 304 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia between the interests of society and the interests of individuals. therefore, the conditions for punishment are based on two very fundamental principles, namely the principle of legality (the principle of society) and the principle of fault/culpability (the principle of humanity/individual). c. problem criminal. another aspect of community protection is the protection of victims and restoration of the balance of values that have been disturbed in society. to fulfill this aspect, the concept of providing additional sanctions in the form of compensation payments and fulfillment of customary obligations. so, in addition to the perpetrator of a criminal act receiving criminal sanctions, the victim or the community also gets attention and compensation in the criminal system. d. criminal guidelines / rules issues. the idea of a balance between certainty (rigidity) and flexibility (flexibility) is also implemented in the guidelines and rules of punishment, one of which is that, even though there is a conviction that has permanent strength, it is still possible to change or review (the principle of modification of sanction) to the decision. this happens when there is a change in the laws and regulations, as well as a change in the improvement of the convicted person. however, in certain cases if there is a conflict between legal certainty and justice, the concept provides guidance so that in considering the law to be applied, the judge should prioritize justice over legal certainty as far as possible (saleh, 1983: 22). direction of criminal law reform in indonesia development in the field of law, especially the development or reform of criminal law, not only building legal institutions, but also must include the development of legal products that are the result of a legal system in the form of criminal law regulation and which are cultural in nature, namely attitudes. and values that influence the enforcement of the legal system (rahardjo, 1980: 84-86). reform and development of criminal law cannot be carried out ad-hoc (partial) but must be fundamental, comprehensive and systemic in the form of recodification which includes 3 (three) main problems of criminal law, namely the formulation of criminal acts, criminal liability (criminal responsibility) both from actors in the form of natural people (natural person) and corporations (corporate criminal responsibility) and crimes and actions that can be applied (muladi & sulistyani, 2013: 89). in the criminal code, criminal acts are divided into two, namely crimes and violations. however, in general, criminal acts can be divided as follows: 1. crime and offense. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 305 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. formal offenses and material offenses. 3. delik dolus and delik culpa. 4. offense commissionis, offense ommossionis and offense commissionis perommissinis commissa. 5. single offense and multiple offense. 6. aflopenda delicten and voortdurende delicten. 7. complaint offense and regular offense. 8. simple offense and offense with justification (lamintang, 1990: 213). initially legal experts divide the types of criminal acts into what is called rechtdelicten and wetsdelicten. rechtdelicten are offenses that are contrary to unwritten law, while wetsdelicten are offenses which are deemed appropriate to be punished, because they are stated in that way which deserves to be punished (soedarto, 1990: 28). responding to the condition of indonesian law which still has a western culture due to the application of the dutch state co-conditions principle to its colonies, legal reform is needed in relation to the original indonesian law. according to sudarto, legal reform, especially criminal law, is felt to have a high level of urgency because it involves the first three things, political reasons, namely that an independent country must have its own national law, for the sake of national pride. second, sociological reasons are reasons that require laws to reflect the culture of a nation. third, the practical reason for wanting the applicable law in a country is the law in the country's native language, not a translation of the law from which it originates (muladi, 1985: 85). criminal law reform is part of a broad legal reform. according to barda nawawi arief, criminal law reform is essentially part of a rational effort to make law enforcement effective through improving legal substance, rational efforts to tackle crime (evil deeds both by law and by society), national efforts to overcome social problems that can be resolved through law. . criminal law reform according to the author can be interpreted as legal politics in the sense of post factum or legal politics implemented when concrete situations have occurred in society (arief, 1999: 89). sudarto gave an opinion regarding the criminal law policy in relation to criminalization, the following points must be considered: 1. must pay attention to the national development goals, which data make a just and prosperous society based on pancasila. 2. actions that would be prohibited by the criminal law must be actions that are not desired by the community (soedarto, 1990: 39). starting from the national goal of soedarto and barda nawawi arief argues that criminal law reform must be shown to: 1. protection of the community from harmful and harmful asocial actions / actions. 2. improvement of perpetrators of asocial acts / actions as a form of community protection from dangerous traits. http://creativecommons.org/licenses/by-nc-sa/4.0/ 306 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. law enforcement that resolves conflicts by restoring the balance lost due to criminal acts (hiariej, 2016: 108). the reform of the criminal law as mentioned above relates to criminalization which is related to acts that are against the law. an act against the law in the realm of criminal law should be final, namely an act that is contrary to written law as a consequence of the application of the lex certa principle, this can be interpreted as an unlawful nature. however, the doctrine is known to be against material law, namely actions that are contrary to the appropriateness or values of justice in society. violating formal and material laws sometimes contradicts the result of the incompleteness of the law. for example, the overspelling of a young couple who are not in a marriage bond is not considered a formal act of violating the law, the direction of reforming indonesian criminal law is in a position of how to accommodate laws that live in society into positive law within the framework of national goals oriented to pancasila as well as alternatives that can be used to address pluralism of law in indonesia in order to avoid conflicts between one law and the law. other. accommodating laws that live in society is an effort to review a number of prohibitions that are immoral in nature but are not regulated in positive law. according to devlin, the policy of increasing immoral acts as a criminal act, morality is a reflection of the existence of society. control of immoral acts by law can be justified, so that criminalization based on acts deemed immoral can be justified. in line with devlin's opinion, according to sudarto, the reform of indonesian criminal law is currently directed at the reorientation of main ideas, basic ideas, or socio-philosophical, socio-cultural and socio-political values of indonesian criminal law in accordance with national objectives that reside in ideology of nation (soedarto, 1990: 39). paying attention to the direction of reforming indonesian criminal law, is how to align it with national goals through accommodating laws that live in society into positive law. reforming criminal law, especially material criminal law, is directly related to the criminalization of acts. according to soerjono soekanto, criminalization is an act or determination by the authorities regarding certain actions which the community or community groups consider as actions that can be convicted of being a criminal act or make an act a criminal act and therefore can be punished by the government by working on his name (soekanto, liklikuwata & kusumah, 1981: 74-76). the act of criminalization by the state is a form of legislation which has limitations aimed at protecting the community (citizens) as subjects which it regulates so that their freedom is not limited. criminalization has a relationship with changes that occur in society. social change does not only mean changes in the structure and function of society, but also includes changes in the values, attitudes and behavior patterns of the community. if you pay attention to criminalization, it is closely related to the condition of the social structure, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 307 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia meaning that the social structure affects an act that is categorized as a criminal act when the act is against the law in a material sense (mala in perse). criminalization of actions that are considered contrary to the values that live in society cannot be separated from eugent erlich's opinion regarding living law. according to the author, criminalization of bandage is obligatory for the will in the social structure through agreed principles as the main door for criminalization. paying attention to this in the context of criminalization is an elaboration of bringing up positive law with laws that live in a society that is often in conflict. the living law view of law shows another side of law that is not just a law in its formal (formal legalistic) sense. law is born in the realm of everyday experience, formed through habits that eventually become an effective order in society. an order that prohibits an act is usually considered to be contrary to appropriateness in social life. according to suteki, in relation to living law, it states that the law does not fall from the sky but processes in the dynamics of society and creates certain constellations. one of the standards for criminalizing acts that are against the law in society is customary law. the nature of customary law in viewing violations is restoration, meaning that there are customary actions that must be taken. the concrete recovery measures include the payment of customary fines. hilman hadikusuma further stated that the characteristics of customary criminal law are the interconnectedness between the real and the unreal, the human power and the unseen power which results in disruption of the harmony that is built in the intended link. these characteristics lead to the consequence of resolving conflicts that occur in the realm of customary crimes in the form of the implementation of a number of rituals to restore the damaged harmony caused by customary offenses. the current issue of criminalization is emphasizing acts that are prohibited but not followed by sanctions in a customary style whose goal is to restore which is reflected through traditional rituals. the types of sanctions in the current criminalization process are more inclined to apply criminal sanctions as referred to in article 10 of the criminal code (pradityo, 2017: 139). the draft of the criminal code as an ius contituendum has a futuristic direction where the types of sanctions are more varied than the current criminal code which is a dutch heritage with a different cultural pattern. the current criminal code with its western style is oriented towards justice, certainty, and benefit. meanwhile, indonesia as an eastern country is oriented towards peace as a legal goal. the philosophy (goal) of the indonesian nation is a philosophy extracted from the culture and life of the indonesian nation that has existed for hundreds of years. according to soediman kartohadiprojo, the philosophy of the indonesian nation is not a free individual but an individual who is bound in the sense of kinship. amendments to the draft criminal code are in the form of additional penalties for the fulfillment of local customary obligations or legal http://creativecommons.org/licenses/by-nc-sa/4.0/ 308 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia obligations that live in the community. this formulation shows the easternoriented goal of law in the form of peace. the author's argument is based on the fact in indigenous peoples that violations (criminal acts) are seen as disturbances of balance (evenwichtstoring), harmony, and harmony in community life which results in individual and community damage. criminalization is a public reaction that aims to restore the damaged balance, harmony and harmony as a result of an offense (a criminal act). damage to balance, harmony, and harmony as a disorder (not peaceful) is countered by implementing customary provisions aimed at restoring the damaged balance, harmony, and harmony so that they become peaceful again is the goal of eastern-oriented law. the development of the draft criminal code which has begun to lead to eastern-style legal objectives is seen as accommodating the values that live in society as well as efforts to elaborate the existing legal system in indonesia, is how to reconcile modern law through legal formalism with values that live in society as a source. the value. however, it would be more comprehensive if the provisions on customary payments were placed as the main crime not as an additional punishment, so that it became the main (primary) crime, but the criminal act crystallized from the customary provisions or customary crimes which were then regulated in positive law which was automatically followed by a system of sanctions so as not to eliminate the characteristics of customary law as well as the embodiment of the oriental style, namely the presence of peace (pradityo, 2017: 140-141). conclusion criminal law reform is essentially an effort to review and reform (reorientation and reform) criminal law in accordance with the development of socio-political and socio-cultural values of indonesian society that underlie social policies, criminal policies and law enforcement policies in indonesia. criminal law reforms in the context of improving the penal system are still being carried out. the reform of indonesian law is currently directed at efforts to reorient the substance of criminal law rules which are considered no longer relevant to the life of the indonesian people because many evil acts in the people's optics are not considered evil and are prohibited in the optics of positive law. all happened because indonesian criminal law in general is a legacy from the dutch, which is culturally different from the culture of indonesian society which is eastern style. if you place the law as a reflection of society, then the current indonesian criminal law does not reflect this, then the reform of indonesian criminal law currently leads to a reorientation of the substance of indonesian criminal law in accordance with the will of the community. therefore, it is suggested that the law must reflect on society, thus indonesia's current criminal law does not reflect this, so the current reform of indonesian criminal law leads to a reorientation of the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 309 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia substance of indonesian criminal law in accordance with the will of the community. in addition, criminal law must be carried out extra cautiously, namely by taking into account the context of society because criminal law is a basic need for society in order to create fair law enforcement. references abidin. a. z. 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(1980). hukum dan masyarakat. bandung: angkasa. http://creativecommons.org/licenses/by-nc-sa/4.0/ 310 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia rahardjo, s. (1982). ilmu hukum. bandung: alumni. saleh, r. (1983). suatu reorientasi dalam hukum pidana. jakarta: aksara baru. sidharta, a. b. (2010). ilmu hukum indonesia. bandung: fh unika parahyangan. soedarto, s. (1990). hukum pidana 1 a dan 1 b. purwokerto: fakultas hukum universitas jenderal soedirman. soedarto, s. (2010). kapita selekta hukum pidana. bandung: pt. alumni. soekanto, s., liklikuwata, h., & kusumah, m. w. (1981). kriminologi: suatu pengantar. bandung: ghalia indonesia. teguh, t., & aria, a. (2011). hukum pidana horizon baru pasca reformasi. jakarta: raja grafindo persada. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 439 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article environmental impact analysis in indonesia post-job creation law: a sociological jurisprudence approach kartika nur cahyani1 1 postgraduate program master of laws univeristas negeri semarang  kartikanurcahyani1994@students.unnes.ac.id cited as cahyani, k. n. (2021). environmental impact analysis in indonesia post-job creation law: a sociological jurisprudence approach. journal of law and legal reform, 2(3), 439-448. https://doi.org/10.15294/jllr.v2i2.46616 submitted: december 11, 2020 revised: february 11, 2021 accepted: may 2, 2021 abstract law is a rule or means in the administration of the state, in order to achieve an orderly, safe and guaranteed life of people's rights, law is needed. according to positivism, law is an order from those who hold the highest power or hold sovereignty. law is considered as a logical, fixed, and closed logical system. sociological jurisprudence theory argues that a good law must be a law that is in accordance with the law that lives in society. sociological jurisprudence shows that there is a compromise between written law as the need of the legal community for the creation of legal certainty (legal positivism) and living law as a form of appreciation for the importance of society's role in the development of law formation and legal orientation. keywords: sociological jurisprudence; amdal; environmental protection; post-job creation law; uu cipta kerja journal of law and legal reform (2021), 2(3), pp. 439-448 doi: https://doi.org/10.15294/jllr.v2i2.46616 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46616 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 440 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction law and society are two inseparable aspects. where there is society there is law. aristotle stated that humans arezoo politicon, meaning that humans basically always want to hang out and gather with each other. so, humans are creatures who like to socialize. to achieve an orderly life, safe and guaranteed the rights of the community, law is needed (kansil, 1979). according to positivism, law is an order from those who hold the highest power or hold sovereignty. law is considered as a logical, fixed, and closed logical system (saifullah, 2007). the flow of legal positivism, namely the pure law theory, views that the concept of applying the law must be clean from non-juridical elements such as sociological, political, historical and ethical. the rule of law is always positive (written) law (nasution, 2000). from the sociological element, it means that hans kelsen's teachings do not provide a place for customary law that lives and develops in society. meanwhile, from the ethical element, hans kelsen’s conception of law does not provide a place for the application of natural law. ethics provides an assessment of the good or bad of an action (rasjidi, et. al., 2001). the enactment of the law in the community is no longer aimed at achieving justice but legal certainty. if the law is clean from non-juridical factors, then the law is nothing but static and does not see the legal reality in society. whereas in society there may be differences between law in book and law in practice. this is certainly a problem in the application of law in society. this is in accordance with the view of thomas hobbes which states that if the law is imaged as an order, then the ruler can be imaged as a robber/rogue who forces his victims to obey his orders. law is a product of history, so that when times change, it can cause the values championed by law to be no longer in accordance with the times. sociological jurisprudence theory directing his views on reality rather than the position and function of law in society. legal reality is basically the will of the public, so it is not just law in terms of law in the book. sociological jurisprudence theory argues that a good law must be a law that is in accordance with the law that lives in society. this theory clearly separates positive law from living law. famous figures of this school include eugen ehrlich (1862-1922) an austrian legal expert and sociologist, who argues that issues of law, at this time, are no longer a question of formal legality, of the interpretation of articles of legislation. the invitation properly, but rather moving towards using the law as a means to help shape the new or appropriate life order with the conditions at that time. in other words, the new positive law will apply effectively if it contains or is in harmony with the laws that live in society (salman, 1993). today, indonesia is a developing country that is building economic strength and infrastructure, this is of course accompanied by the development of human resources. one of the ways to build a strong economy is easy investment. increase http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 441 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the country's productivity, create jobs and increase gross domestic product and exports. the current government is very ambitious to increase the investment of foreign companies to invest in indonesia. in this case, the government took the initiative to form a law that supports the investment climate where it aims to develop the country and realize the nawacita program. one of the laws that is currently being discussed is the work copyright law. the job creation law regulates employment, employee leave rights, business permits, environmental permits and so on. it contains 1187 pages. environmental permits are one aspect that is quite highlighted in the job creation act. an environmental permit which is then called amdal (analysis of environmental impacts) or ukl/upl is a mandatory requirement that is required before setting up a business or factory. in the job creation law, it is very clear that the government wants to improve the investment climate, one of which is by making it easier to obtain environmental permits. in this case the opinion of prof. mahfud md which states that: "politics is the determinant of law because law is actually a political product that is full of interests and political configurations" is very true. the preparation of the job creation law requires the government's political interests in favor of large investors, in this case investors. however, several studies have even confirmed that the omnibus law provides a new direction in the environmental sector that has the potential to accelerate environmental damage, starting from simplification of permits, licensing authority in the forestry sector, to corporate criminal liability for environmental destroyers (amania, 2020; siregar, 2020; fatanen, 2021; bangsawan, budiono, & damayanti, 2021; saputra, 2021; lubis, 2021; rianda, 2021; halomoan, 2021). even further, according to prakasa (2021) and sembiring, fatimah, & widyaningsih (2020), this law poses a great potential for future ecological and environmental damage, which in the end, according to tejomurti & sukarmi (2020), the law contradicts the principle of legal justice that was initiated by john rawls. therefore, the problems raised in this sociological jurisprudence paper are: (1) what are the views of sociological jurisprudence figures regarding the good law that applies in society? and (2) is the job creation law in accordance with good legal rules that apply in society? method this type of research is a qualitative legal research using a juridical-empirical approach (non-doctrinal), namely research on how to implement the law and problems in implementing the law. http://creativecommons.org/licenses/by-nc-sa/4.0/ 442 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia understanding sociological jurisprudence theory the views of sociological jurisprudence figures regarding the good law that applies in society. the foundations of the sociological jurisprudence theory are roscoe pound, eugen erlich, benjamin cardozo and others (rasjidi, et. al., 2001). one of the figures of sociological jurisprudential theory is erlich who states that law arises from a mere naturalization process. all phenomena of the world including laws are approached like natural objects and the relationship between these phenomena is considered natural as well. so, the law is a reality because it comes from reality in society. so according to erlich, a good law is a law whose formation is in accordance with legal reality (rasjidi, et. al., 2001, p. 66). legal reality is basically the will of the public, so it is not just law in the sense of law in books. sociological jurisprudence shows that there is a compromise between written law as a necessity for the legal community for the creation of legal certainty (legal positivism) and living law as a form of appreciation for the importance of society's role in the development of law formation and legal orientation (nasution, 2000). eerlich's theory takes society as the basic law-forming idea which states that all positive law is rooted in a fundamental law of society. fundamental law means what governs all life together. so social solidarity is a fundamental law of society. the theory of sociological jurisprudence holds to the opinion of the importance of both reason and experience. this view comes from roscoe poud. only the law bears the test of reason from living on. law is an experience that is governed and developed by reason, which is announced with authority by the bodies that make laws in society which are politically organized and assisted by the power of society (rasjidi, et. al., 2001, p. 67). good law is a law that lives in accordance with the law that lives in society (rasjidi, et. al., 2001, p. 66). parson is a member of the modern sociological jurisprudence school by developing a multi-disciplinary approach in the broad sense of legal studies. this multinational approach is to avoid getting biased results in using social science theory in looking at legal aspects both in the process of making it and its application. this is done to answer the question of how the law can be obeyed by the community, by looking for a basis to accommodate on the one hand the will of the community and on the other hand to maintain legal certainty. the law that is accepted by the community is the law that is felt to be fair by the community concerned. therefore, the law must be the result of a certain community consensus. according to roscoe pound, the main task of law is social engineering by formulating and classifying the interests of society. according to the pound striking a balance between these interests will result in legal progress. the interests protected by law referred to by roscoe pound are: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 443 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. public interest the public interest consists of the interest of the state as a legal entity in carrying out its duties to maintain the personality and nature of the state. 2. individual interest the interests of this interest are divided into two, namely interests in household relations and interests regarding property 3. interests of personality these interests are divided into several types, namely, the interests of protecting bodily integrity 4. free will 5. reputation 6. individual personal circumstances 7. freedom to choose and express opinions. on the other hand, eugen ehrlich states that the law that is made must be in accordance with the law that lives in society. that was a statement eugen ehrlich said. short sentences with deep meaning. judges as one of the law enforcements officers, in making decisions must consider the laws that live in society, as stated in article 5 of law no. 48 of 2009 amendments to law no. 4 of 2004 concerning judicial power, namely: judges and constitutional judges are obliged to explore, follow, and understand the legal values and sense of justice that live in society (hujibers 2001). according to ehrlich in his book entitled “grendlegung der sociological rechts (1913)”¸ said that society is a general idea that can be used to denote all social relations, namely family, village, social institutions, state, nation, economic system and legal system and so on. ehrlich views all law as social law, but in the sense that all legal relations are characterized by socio-economic factors. the economic system used in production, distribution, and consumption is decisive for legal purposes (hujibers, 2001, p. 20). ehrlich's theory which takes society as the basic idea of law formation says that all positive law is rooted in a fundamental law of society. the fundamental law is what governs the whole of life together. living together in modern society is dominated by social solidarity. social solidarity is a fundamental law of today's society. the discovery of the law uses the view of the historical school that was pioneered by carl von sevigny, namely that judges need to also pay attention to the habits that live in society, because each nation has its own national spirit (volkgeist) which is different for each place. precedence law in anglo saxon countries is the result of an autonomous legal discovery as long as the formation of regulations and the application of regulations are carried out by judges based on their conscience but are also heteronomous because judges are bound to previous decisions (factors outside of the judge). meanwhile, continental law as in indonesia recognizes heteronomous legal findings as long as judges are bound to the law. http://creativecommons.org/licenses/by-nc-sa/4.0/ 444 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia job creation act in sociological jurisprudence and the impact to enviromental protection the government is in a hurry to boost the law. demos, public demonstrations did not make the government afraid to pass the law. in relation to eia and ukl/upl, lecturers as well as students and environmental activists have protested a lot against these policies. the ratification of the job creation act seems to have a lot of political content because the government's alignment with investors who want to invest in indonesia is too visible. environmental experts criticize that the government should review environmental policies more, not only boosting the economy but eventually natural resources will be damaged or polluted. in accordance with the contents of the job creation bill on amdal, the 10 points highlighted according to professor of the faculty of forestry ipb hariadi kartodihardjo are changes from the previous regulation, namely government regulation number 27 of 2012 namely: 1. environmental management efforts (ukl) and environmental monitoring efforts (upl) are no longer required as part of the decision-making process for business operation permits, as stated in article 1 point 22. 2. article 1 number 35 concerning industrial obligations to obtain environmental permits is removed and changed to environmental approvals. 3. nine business criteria with significant impact were removed (article 1 point 35). 4. in the amendment to article 24, in addition to appointing certified institutions and/or experts, the government can conduct its own environmental feasibility test, which is based on an environmental impact analysis document (amdal), to determine environmental feasibility in issuing business permits. 5. in the preparation of the amdal, only those who are affected are allowed to be involved in the preparation of the amdal. there are no longer environmentalists and/or people who are affected, as stated in article 26 before it was amended. 6. removing articles 29, 30, 31 regarding the eia assessment commission. for activities that are required to meet ukl-upl standards, the central government immediately issues a business license when there is a statement of the corporation's ability to manage the environment. 7. there is no longer any affirmation that environmental feasibility must be easily accessed by the public as stated in article 39 of the uupplh. 8. supervision and administrative sanctions are entirely carried out by the central government, such as changes to chapter xii articles 72 to 75. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 445 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 9. types of administrative sanctions are abolished by amending article 76. delegation to government regulations will only contain procedures for imposing such sanctions. 10. there is no gap or entrance for citizens to sue other institutions that damage the environment as stated in article 93 of the uupplh, as a consequence of the abolition of environmental permits (forest digest, 2020). the job creation law does not regulate incentives at all like in australia. moreover, the obligation to disclose information regarding the company's compliance history, criteria for environmental carrying capacity in industrial locations, as well as disclosure of the results of the assessment of industrial compliance in carrying out environmental protection. because empirically, the response of a business and risk to the environment is highly dependent on these factors. the main characteristic of the job creation law is the lack of explanations, norms, or forms of direction for the contents of its derivative regulations. in other words, the law gives the central government very broad discretion to regulate it further. there are at least four implications that need to be considered if the job creation law is to apply risk-based permits for investment: first, the availability of data to measure the impact of industrial activities on health, safety, environment, and natural resources. second, data on the classification of the carrying capacity of the region in indonesia which is a determining factor for environmental risk. social and cultural aspects should be considered when making this classification. third, make the impact of industrial activities on the environment a public matter. therefore, publishing the evaluation of industrial activities is the government's obligation. fourth, prudence in the application of risk-based business licenses, considering that this approach constructs the entire contents of the job creation law (forest digest, 2020). positive law that is good and therefore effective, is positive law that is in accordance with living law which as the inner order of society reflects the values that live in it. in the job creation act, it seems that the government does not protect the environment and natural resources. the environment and spatial planning should be given a strong legal umbrella so that later there will be no pollution that harms the people and the state. the laws that are made should be made by exploring, following and understanding the legal values that live in society. conclusion theory sociological jurisprudence argues that a good law must be a law that is in accordance with the law that lives in society. positive law that is good and therefore effective is positive law that is in accordance with living law which as http://creativecommons.org/licenses/by-nc-sa/4.0/ 446 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the inner order of society reflects the values that live in it, positive law that applies in indonesia should remain effective in dealing with changes and developments in the dynamics of society. live in society by exploring, following and understanding the legal values that live in society. in the aim of increasing the economy, the government should not sacrifice environmental aspects. amdal is a form of environmental protection. industry is a source of waste and pollution which should be studied carefully. the environment and spatial planning should be given a strong legal umbrella so that later there will be no pollution that harms the people and the state. references amania, n. (2020). problematika undang-undang cipta kerja sektor lingkungan hidup. syariati: jurnal studi al-qur'an dan hukum, 6(02), 209-220. bangsawan, m. i., budiono, a., & damayanti, f. n. (2021). penyuluhan dan sosialisasi uji materi undang-undang cipta kerja bidang lingkungan. jurnal altifani penelitian dan pengabdian kepada masyarakat, 1(2), 143-148. fatanen, a. (2021). eksistensi kewenangan daerah dalam perlindungan dan pengelolaan lingkungan hidup pasca diterbitkannya undang-undang cipta kerja. khazanah hukum, 3(1), 1-7. halomoan, k. p. (2021). tantangan pengaturan perlindungan dan pengelolaan lingkungan hidup pasca undang-undang no. 11 tahun 2020 dan pasca pandemi covid 2019. bina hukum lingkungan, 5(3), 523-567. huijbers, t. (2001). filsafat hukum dalam lintasan sejarah. yogyakarta: penerbit kanisius. kansil, c. s. t. (1979). pengantar ilmu hukum dan tata hukum indonesia. jakarta: balai pustaka. lubis a. l. (2021). kebijakan penghapusan sanksi pidana terhadap tindak pidana lingkungan hidup dalam undang-undang nomor 11 tahun 2020 tentang cipta kerja. eksekusi, 3(1), 1-17. prakasa, s. u. w. (2021). ecocide crimes & omnibus law: review of international law and its implications on indonesia law. dinamika hak asasi manusia, 12(2), 14-20. rasjidi, l. et. al. (2001). dasar-dasar filsafat dan teori hukum. bandung: pt citra aditya bakti. republic of indonesia. (2009). undang-undang nomor 48 tahun 2009 perubahan atas undang-undang nomor 4 tahun 2004 tentang kekuasaan kehakiman. republic of indonesia. (2020). undang-undang nomor 11 tahun 2020 tentang cipta kerja. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 447 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia rianda, h. g. (2021). problematika konsepsi strict liability dalam perlindungan lingkungan hidup pasca disahkannya undang-undang nomor 11 tahun 2020 tentang cipta kerja. muhammadiyah law review, 5(2), 100-109. saifullah, s. (2007). refleksi sosiologi hukum. bandung: pt refika aditama. salman, r. o. (1993). beberapa aspek sosiologi hukum. bandung: alumni. saputra, r. (2021). konstruksi peraturan pemerintah pasca pengesahan undangundang cipta kerja terhadap pembangunan berkelanjutan. bina hukum lingkungan, 5(3), 399-415. sembiring, r., fatimah, i., & widyaningsih, g. a. (2020). indonesia’s omnibus bill on job creation: a setback for environmental law?. chinese journal of environmental law, 4(1), 97-109. siregar, f. y. d. (2020). aspek hukum penyederhanaan perizinan badan usaha di bidang lingkungan hidup dalam undang-undang cipta kerja. jurnal ilmiah penegakan hukum, 7(2), 184-192. tejomurti, k., & sukarmi, s. (2020). the critical study of the omnibus bill on job creation based on john rawls view on justice. unnes law journal: jurnal hukum universitas negeri semarang, 6(2), 187-204. http://creativecommons.org/licenses/by-nc-sa/4.0/ 448 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia “the global industrial economy is the engine for massive environmental degradation and massive human (and nonhuman) impoverishment.” derrick jensen endgame, vol. 1: the problem of civilization http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.goodreads.com/work/quotes/59299 https://www.goodreads.com/work/quotes/59299 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: 7fbf23ca88982007 • 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: 7fbf23ca8f60206d • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(3) 2020 539 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article press roles in democracy society lailasari ekaningsih faculty of law, universitas darul ulum islamic centre sudirman, indonesia  lailasarien@gmail.com cited as ekaningsih, l. (2020). press roles in democracy society. journal of law and legal reform, 1(3), 539-548. doi: https://doi.org/10.15294/jllr.v1i3.36702 abstract citizens can express their opinions through printed and electronic masses, one of them through mass media press. the free and responsible press is indispensable to support the formation of democracy society. here the press role is crucial in the democracy community. the research method used in this research is normative. the data source used is a secondary data source, i.e. data obtained from literature material. the data collection techniques in this legal study use documenter studies. the results of these studies and discussions are of the numerous press roles, which explicitly relate to the democratic community is the role of enforcing the fundamental values of democracy. the press is required to open up to the wishes of the community in participating or supervising the public agenda. advice from the results of the discussion, the press should provide opportunities for citizens to criticize, submit claims, commit rejection of government policies that do not apply and fight for justice and truth through the independent press. keywords: roles; press; community; democracy journal of law and legal reform (2020), 1(3), pp. 539-548. doi: https://doi.org/10.15294/jllr.v1i3.36702. issn (print) 2715-0941, issn (online) 2715-0968 submitted: 20 march 2020, revised: 27 april 2020, accepted: 30 april 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i3.36702 https://doi.org/10.15294/jllr.v1i3.36702 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 540 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 539 table of contents ………………………………………………………….. 540 introduction …………………………………………………………………. 540 literature review ………………………………………………………….. 541 i. meaning and function of pers ………………………………….. 541 ii. press rights and obligations …………………………………….. 543 method …………………………………………………………………………… 544 analysis of press roles in democracy society ………………. 544 conclusion …………………………………………………………………….. 547 references ……………………………………………………………………... 547 introduction article 28 of the constitution 1945 mentions that freedom of union and assembly, out of mind with oral and written and so stipulated by law. this section 28 guarantees to citizens to: (1) form an association or organization in both political and non-political, (2) free expressed opinion. the freedom to convey an opinion must be guaranteed by the government in accordance with the direction of the constitution as a form of state obligation to protect citizens who feel harmed by government action or to ensure the human rights of citizens in particular the right to communicate and obtain information. citizens can express their opinions through the media-the mass of both print and electronic media. these masses in other words are called the press. the press is a term in dutch. the term in english is press. literally, the press means print and outward means broadcasting on a printed or printed publication (effendy, 2006:245). the department of national education language center (2002: 863) gives the press meaning in 5 things: (1) printing and publishing business, (2) the collection effort of adm news broadcasting, (3) news broadcasting through newspapers, magazines and radio, (4) people engaged in news broadcasting, (5) medium of news broadcasting such as newspapers, magazines, radio, television and film. the press or media-the masses referred to in this paper are all activities and forms of collection, printing, publishing and broadcasting of the news. the free and responsible press is indispensable to support the formation of the democracy community. the existence of the press is primarily a freedom of press believed to be http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 541 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia one of the criteria that must be fulfilled by a state that wants to be called democracy (suseno 1995: 60; rosyada, et al. 2003:117). this free and responsible press is a pillar of democratic enforcer other than the law nation, civil society and political infrastructures. the values developed in democratic societies such as freedom of speech, other group freedoms, equality, cooperation, competition and belief will not be realized properly if the community or the state does not permit press or media-mass, because only a few of them produce the news or opinions of citizens and even a control window for the community to supervise or conduct an assessment of the performance of a state government. based on the writing above, in this article the problem to be obtained is how the press role in the democracy community. literature review i. meaning and function of press according to article 1 of law number 40 year 1999, the press is a social institution and a mass communication vehicle that conducts journalistic activities, including: seeking, obtaining, owning, storing, processing, and conveying information both in writing, voice, picture, sound and image as well as data and graphics and other forms using printed media, electronic media and all types of channels. in its development, the press has two understandings, namely the press in the broad meaning and in the narrow sense. the press in a broad sense includes all publications, even including electronic mass media, broadcast radio and television broadcasts; while the press in the narrow sense is limited only to the media-the printing of newspapers, magazines and bulletin (effendi, 2006:145). if it is reviewed, the press is limited to print media only; but in the reality radio and television is also included in the press environment because when held press conference, which includes news in the press meeting is not only newspaper journalists, magazines and news agencies, but also radio journalists and television. electronic and print mass media become part of mass communication has the main characteristics, namely: the process is in one direction, the communicator is institution, its message is general, the media raises the solidarity and communication heterogeneous. although mass media and electronics have the same traits, they have a significant difference. messages broadcast by electronic mass media are accepted by the audience at a glance and audiences must always be located or adjacent to the aircraft: whereas messages delivered by print masses can be re-examined, learned and http://creativecommons.org/licenses/by-nc-sa/4.0/ 542 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia saved to be read on each occasion. messages broadcast by electronic mass media must be packaged in such a way as to be easily digestible by listeners and viewers while the messages presented by the print mass media tend to be sophisticated and scientific. judging from its ideological, press are categorized into four namely: (1) authoritarian press, (2) libertarian press, (3) social responsibility press, and (4) soviet communist press (effendy, 2006:146). based on the four types of press, the most appropriate for the development of a country's democracy is libertarian press and social responsibility press. according to the act no. 40 year 1999, the national press function is as: (1) information media, (2) educational media, (3) entertainment media, and (4) social media. the press has the independence to find out and convey information as an important effort to ensure the realization of human rights or which is often referred to by human rights. the constitution of the year 1945, as certify human rights, especially in article 28 e paragraph (3) and article 28 f, article 28 e paragraph (3) states: "every person is entitled to freedom of association, gathering and issuing opinions." article 28 f reads: "everyone has the right to communicate and obtain information, to develop his/her personal and social environment, and to seek, acquire, own, store, process and convey information using all available channels." press as an education, hopefully can serve as a source of knowledge for audiences. when people or groups are in the audience or involved in the press, new insights intellectual acuity and critical awareness are significantly increased. then from the political aspect, the mass media that provides the choice of news becomes an important part of the political education process that helps create conditions for the community to learn to find other alternatives (ibn. chamim, et.al 2003: 153). both print and electronic mass media provide entertainment facilities that can be enjoyed by the audience of readers, listeners or spectators. for newspapers and magazines, news or entertainment information such as short stories, serialized stories, rhymes, caricatures, funny stories, celebrity drawings and interesting advertisements provide services to readers, while also serving to compensate for heavy news and weighted articles. the entertaining function of the press is primarily television giving a compelling choice to viewers who are working or studying. in front of television, smiling as viewers, laughing at the group of joker who were performing or drifting sad when watching soap operas. from the radio, listeners can request their favorite songs, enjoy the songs that are heard and hear the humor and the will of his investigator. the press also conducts social control, the responsibility of the community to be able to live according to the agreed norms. similarly, through news, opinions or http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 543 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia other information offerings, the press can be used to prevent misuse of corruption, collusion, and nepotism or misappropriation and other irregularities. ii. press rights and obligations the press has independence, namely as one manifestation of the sovereignty of the people based on the principles of democracy, justice and rule of law, the sound of article 2 act number 40 of 1999. the independence of the press is secured as a human right of the state, meaning that the press is free from the precautionary, prohibition and or emphasis of the community's right to obtain guaranteed information. such rights are secured by constitution 1945 i.e. 28, 28 e paragraph (3) and 28 f. law number 39 of 1999 about human rights also provide similar assurance. article 23 paragraph (2) of the law states: "every person is free to have, issue, and disseminate the opinion according to his or her conscience, orally and or in writing through print or electronic media with regard to values, religion, morality, order, public interest, and the integrity of the nation." unlike the previous provisions, against the national press shall not be subjected to censorship, limit or violations of broadcasting (article 4 paragraph 2, law no. 40 year 1999). this is a step forward rather than the press conditions during the new order. the new order as a fear regime caused the occurrence of silent society or silence-society. similarly, the mass media fear not dare to voice a different view or opinion for fear of being bullied. in order to ensure the freedom of the press, the national press has the right to seek, acquire, and convey ideas and information. journalists as a human press have a right to reject the news in front of the law. the rights owned by the press and members of the public, especially those who have been practiced during the reformation are able to apply democratic values such as freedom, equality, appreciation of differences or diversity, equality, cooperation, competition, openness and trust. in addition to having the above rights, the national press is obliged to preach events and opinions by respecting religious norms and the sense of public morality as well as the presumption of innocent principles. similarly, the press must serve the right of responsibility and correction rights. so the press at any time is under the control of society. control can be done by individuals as well as public agencies such as media monitors and the press council. activities undertaken by the public to ensure the implementation of this control function are: (1) monitor and report analysis on the breach of laws, ethics, and technical errors of the press, (2) submit http://creativecommons.org/licenses/by-nc-sa/4.0/ 544 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia proposals and suggestions to the press board in order to safeguard and improve the national press quality. method this research uses the normative juridical research approach. normative legal research, also known as literature law research, is: "legal research conducted by researching a library material or secondary data. (soekanto & mamuji, 2010: 12). this research is a research in the form of analyzing of positive law that is focused on collecting data on the prevailing law that is the law of the press regulations. the data source used in this study is a secondary data source. data obtained from libraries or literature materials that have a relationship with the research object. then the primary legal material which is a legal material that has binding power. so, the primary legal material in this study covers legislation, namely act no. 40 year 1999 about the press. the legislation approach is one of normative legal research approaches according to johnny ibrahim (2008). the statue approach is an approach used to analysis and examine something that will be examined. so, this research is using a regulatory approach, by reviewing the press role in the democracy community based on the legislation governing the press. as for the data collection techniques in this legal research, namely using documenter study. the documentary study is a study that examines the sharing of documents, both related to statutory regulations and documents (salim & nurbani, 2014: 19). the documentary study is certainly related to the press role in the democracy society. analysis of press roles in democracy society democracy is a society in which the principles of freedom, equality and pluralism are developed. democracy according to dahl (2001:53) provides various opportunities for: (1) effective participation, (2) the equality in voting, (3) gaining a clear understanding (bright), (4) conducting final supervision on the agenda, (5) adult conversation. dahl (2001:63) gives a reason why society should be democracy, namely: (1) avoiding tyranny, (2) ensuring human rights, (3) to ensure greater personal freedom, (4) helping people to protect their fundamental interests, (5) giving the most sense of sincerity for people to use the freedom to determine their own fate, (6) to give maximum opportunity to carry out moral responsibility, (7) to help human http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 545 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia development more in total, (8) to help the relatively high level of political equality , (9) help make peace and avoid war, (10) accelerate prosperity. the parallel democracy with liberalism is a system that has a high commitment to equality, freedom, individuality and rationality (bellany in roger eatwell and anthony wright (ed) 2004:32). on the next level, democracy in the realm of liberalism evolved into a liberal democracy, namely the liberal first (aiming to restrict state power over civil society) and later democracy (aiming to create a structure that would secure the people's mandate for the holders of state power). the quality of democracy must increase to the level of democratic autonomy, held. according to held, the autonomy of democracy requires a statement of human rights (the bill of right) beyond the right to elect to provide the same opportunity to participate and to find personal preference and supervision by citizens of the public agenda (sorensen, 2003:15). the growth of democracy requires the three main values that are the principle of the existence of democracy, namely (1) freedom (2) equality, (3) the sovereignty of majority vote (nurtjahjo, 2006: 75). the values of democracy as a primary prerequisite of community formation or democratic rule do not appear on their own. democracy is not dating from the sky. democracy must be cultivated. one community or social institution that is expected to implement democratic values is the press or mass media. almost all authors, such as: dahl, powell, jr, sorensen, lively, mayo, budiardjo, widjaja, rais, and suseno agree that the freedom of the press is one of the important pillars of community or government democracy. the democratic government, according to suseno (1995: 81), took place under the spotlight of society and the main highlighter was the press. the press provides information and facet of judgment that the community needs to form a responsible opinion on the government and political life. in the context of indonesia's democratic state, the press performs the role of: (1) fulfilling the community's right to know (2) establishing the fundamental values of democracy, encouraging the realization of legal supremacy, human rights and respecting diversity, (3) developing public opinion based on precise, accurate and correct information, (4) conducting supervision, criticism, correction, and advice on matters relating to the public interest, (5) championing justice and truth. in saudi arabia, as an absolute royal state, the development of the media and press has enriched the democratic process in political activity (jebril, nael et al, 2013). http://creativecommons.org/licenses/by-nc-sa/4.0/ 546 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this is evidence that the media or press can play an effective role even in countries with absolute systems. of the many press roles, which explicitly relate to democratic society is the role of enforcing the fundamental values of democracy. in relation to this role, the press is required to open up to the wishes of the society in participating or supervising the public agenda. the press should provide opportunities for citizens to criticize, file claims, commit rejections against government policies that do not apply and fight for justice and truth through independent press. through the press independent, open, critical, and objective the expected values of freedom, similarity, plurality, people's sovereignty, cooperation, competition, rationality and other derivative values can grow with fertile strengthening the foundations of democratic society. nevertheless, freedom of the press is not absolute. the freedom of the press is a pattern of relative, contextual, and dynamic patterns (suseno, 1995: 81). violating privacy, corrupting other people's names, defamation, religious insults, insults the head of state, solicitation of undermines of the state or constitution, and commit criminal in almost all democratic states prohibited by law. law number 40 of 1999 gives signs to the press company especially in ad loading. the banned advertisements are: (1) that degrading a religion and/or disturbing the harmony of inter-religious life and contrary to morality, (2) liquor, narcotics, psychotropic, and other addictive substances in accordance with the provisions of the prevailing laws and regulations, (3) demonstration of cigarette and use of cigarettes. relativity and contextual press can also be examined from the contents of law number 32 of 2002 about broadcasting. in accordance with the provisions of the act, the contents of the broadcast must contain information, education, entertainment and benefits for the formation of intellectual, character, moral, advancement, strength of the nation, safeguard unity and unity, and practicing the values of indonesian religion and culture. still according to law number 32 year 2002, the content of the broadcast is prohibited: (1) is defamatory, inciting, misleading and/or lying, (2) highlighting elements of violence, obscene, gambling, narcotic abuse and illegal drugs, (3) to vary ethnic, religious, racial, and intergroup. similarly, the contents of the broadcast are prohibited from plugging, degrading, harassing and/or ignoring religious values, human dignity of indonesia or damaging international relations. press or mass media accountability in addition to the roles, obligations and prohibitions to be avoided by the press, is also shown through the indonesian journalist's journalism ethics code and the code of the independent journalists alliance. article 3 of the indonesian journalist's journalism code of ethics, for http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 547 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia example, "indonesian journalists do not broadcast news, writings or misleading images, distorting facts, defamatory, obscene, sadistic, and exaggerated sensations". in line with the code, indonesian journalist alliance instructed the members not to present the news with obscenity, cruelty, physical and sexual violence. conclusion press or mass media is one of the indicators of the community or democratic government. the press is seen as the most effective public institution in shaping the democracy culture of a society. newspapers, magazines, tabloids, television and internet are believed to be important socialization agents in shaping the community imaginative democracy as it has control over the information to be presented. democratic values such as: freedom, equality, pluralism, the sovereignty of the people (majority-rule), appreciation of diversity, competition, cooperation and rationality can be adjusted throughout the freedom the press is guaranteed. the free press remains based on the principles of democracy, fairness and legal supremacy. the provisions of its functions, rights, obligations and roles as governed by the law shall remain to be complied with. similarly, there are prohibitions to be avoided by the press. the existence of prohibitions and obligations is not intended to restrict press space, but instead directed to build a free and responsible press or a democratic press. without a legal corridor, the press will fall into an anarchist act that substantially does not conform to the principles of democracy. references bellany, r. (2004). liberalisme. on roger eatwell & anthony wright (eds). ideologi politik kontemporer. yogyakarta: jendela. effendi, o.u. (2006). ilmu komunikasi teori dan praktek. bandung: remaja rosda karya. ibn chamim, a., et.al. (2003). pendidikan kewarganegaraan. yogyakarta: majelis dikti litbang pp muhammadiyah. jebril, n., stetka, v., & loveless, m. (2013). media and democratisation: what is known about the role of mass media in transitions to democracy. report. reuters institute for the study of journalism. oxford: university of oxford. nurtjahjo, h. (2006). filsafat demokrasi. jakarta: bumi aksara. republic of indonesia. (1945). undang-undang dasar tahun 1945. http://creativecommons.org/licenses/by-nc-sa/4.0/ 548 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia republic of indonesia. (1999). undang-undang nomor 39 tahun 1999 tentang hak asasi manusia. republic of indonesia. (1999). undang-undang nomor 40 tahun 1999 tentang pers. republic of indonesia. (2002). undang-undang nomor 32 tahun 2002 tentang penyiaran. rosyada, d. et.al. (2003). pendidikan kewarganegaraan demokrasi, hak asasi manusia dan masyarakat madani. jakarta: prenada media. salim, s., & nurbaini, e.s. (2014). penerapan teori hukum pada penelitian tesis dan disertasi. jakarta: pt. rajagrafindo persada. soekanto, s., & mamuji, s. (2010). penelitian hukum normatif suatu tinjauan singkat. jakarta: rajagrafindo persada. sorenson, g. (2003). demokrasi dan demokratisasi. yogyakarta: pustaka pelajar. suseno, f.m. (1995). mencari sosok demokrasi sebuah telaah filosofis. jakarta: pt.gramedia pustaka umum. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 493 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article socio-economic and legal analysis on forest protection andika bangun sanjaya1 1 university of malaya, malaysia  andikabangun@gmail.com cited as sanjaya, a. b. (2021). socio-economic and legal analysis on forest protection. journal of law and legal reform, 2(4), 493-504. https://doi.org/10.15294/jllr.v2i4.48759 submitted: december 7, 2020 revised: march 11, 2021 accepted: july 11, 2021 abstract the protection of forests today is not just a problem is regional (national) but it is a world problem (global). this is related to the function of forests in maintaining ecological balance which also affects the global climate, such as the effect of 'global warming' which can threaten the safety of living things. nevertheless, reality shows that the economic function of the forest, i.e., as a source of the eye livelihood for a group of people, as a means of accumulation capital (capital) for entrepreneurs (capitalist), and as a source of foreign exchange for countries, often defeating forest functions in maintaining equilibrium ecological (including global climate). the continued pressure of population increased is one of the factors that contribute to accelerating forest destruction. this is due to the need for more land and more building materials, both for settlement and land for activities farming, and materials for new buildings. utilization excessive forest economic functions by a human (forest exploitation) without caring about ecological balance can be catastrophic for humans themselves and require farreaching economic and social costs greater than the economic results that have been obtained. keywords: forest protection; environmental law policy; socio-economic analysis journal of law and legal reform (2021), 2(4), pp. 481-493-504 doi: https://doi.org/10.15294/jllr.v2i4.48759 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i4.48759 https://doi.org/10.15294/jllr.v2i4.48759 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 494 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction indonesia is a country rich in minerals, including gold, silver, coal and other statecontrolled for the greatest prosperity of the people (salim, 2003). as we all know that forest is the lungs earth where various living animals, trees, minerals, and various other resources that we can get from the forest are priceless to humans. forest is also a natural resource that provides great benefits for human welfare, both tangible benefits are felt directly, or intangible that is felt indirectly. direct benefits such as a supply of timber, animals, and mining products (erbaugh & nurrochmat, 2019; harbi, erbaugh, sidiq, haasler, & nurrochmat, 2018). while indirect benefits such as recreational benefits, water conservation and regulation, erosion prevention. the existence of forests, in this case, the carrying capacity of forests against all aspects of human life, animals, and plants is determined on the high level of human consciousness of the importance of forests in the utilization and management of forests. forests become a medium of mutual relationships between humans and other living things with natural factors comprising ecological processes and are a cyclic unity that can support life (reksohadiprojo, 2000; shah & baylis, 2015; armitage, 2002). forests are natural resources that have various functions, both ecological, economic, social, and cultural necessary to support human life and other living things (wheeler, hammer, kraft, dasgupta, & blankespoor). it is, therefore, necessary to do so control of forest destruction through forest protection activities. so that in general forest protection is an activity to keep the forest from factors that can cause damage to trees or tree stands in protection, conservation or production achieved optimally and sustainably in accordance with its designation. a factor which can cause damage to trees or tree stands is including land encroachment, illegal logging, fire, pests, diseases, and shepherding (arif, 2001). forest and the protection the definition of forest protection is firmly established in the regulations government number 45 of 2004 article 1 which is the translation of law number 41 year 1999 article 47, forest protection defined as an attempt to prevent and limit forest destruction, forest areas and forest products, caused by human actions, livestock, fires, natural powers, pests and diseases, as well as maintaining http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 495 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and safeguarding the rights of countries, communities and individuals over forests, forests, forest products, investments and management-related tools forest (see also kaskoyo, mohammed, & inoue, 2014). in the definition clearly stated that there are 2 (two) activities major in forest protection in indonesia, namely: 1. prevent and limit damage to forests, forest areas, and forest products which is caused by human actions, livestock, fire, disaster nature, pests, and diseases. 2. maintain and safeguard the rights of the state, society, and individuals on forests, forest areas, forest products, investments and tools related to forest management. the forest is conceptually juridical formulated in article 1 paragraph (1) law no. 41 of 1999 on forestry. according to the law forest is a unity of ecosystem in the form of the expanse of land containing biological resources dominated by trees in the environmental alliance of environment, which one with others cannot be separated. from the definition of the forests mentioned, there are elements that include: a. an ecosystem unity b. in the form of a stretch of land c. contains natural resources and its natural environment that is not d. can be separated from one another. e. able to benefit sustainably. there are two benefits of forests: (1) direct benefits are benefits that can be felt / enjoyed directly by the community, i.e., the community can use and utilize forest products, such as timber which is the main forest product, as well as various forest products such as rattan, sap, fruits, honey and others, (2) indirect benefits are benefits not directly enjoyed by the community, but that can be felt is the existence of the forest itself, such as can regulate the water system, can prevent erosion (salim, 2003; koh & ghazoul, 2010; kaskoyo, mohammaed, & inoue, 2017). the four basic characteristics are owned by a region called forest, is a series of a unity of components that are intact and interdependent to the function of ecosystems on earth. the existence of forests as a global sub-ecosystem identifies important positions as the lungs of the world (zain, 1996). in general, the classification of natural resources is divided into forms (zain, 1997): a. land of rivers b. forest with various results c. natural land for beauty, recreation or for scientific research http://creativecommons.org/licenses/by-nc-sa/4.0/ 496 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia d. terrestrial and marine fisheries e. fuel and non-fuel mineral resources f. non-mineral energy sources such as: geothermal, solar power, wind, a source of hydropower, tidal wave. regulations for forest protections 1. law number 5 of 1990 law number 5 of 1990 is about conserving natural resources consisting of 14 chapters and 45 chapters. constitution this does not specifically set about forest protection but is an effort to realize the preservation of biological natural resources as well as the balance of the ecosystem so as to better support the effort improvement of people's welfare and quality of human life through life protection system protection activities, preservation the diversity of plant and animal species and their ecosystems, the sustainable use of biological natural resources and their ecosystems. while the intended natural resources are the elements biodiversity in nature consisting of vegetable natural resources (plants) and animal natural resources (animals) that together with non-biological elements in its surroundings as a whole form an ecosystem. this law further regulates the determination of a territory accordingly with the designation of the protected area as a protection system a life buffer intended for the maintenance of an ecological process support the survival of life to improve prosperity society and quality of human life; as nature reserve area preservation areas of the diversity of plants and animals together its ecosystem, also serves as a system protection area buffer life; nature conservation areas have functions protection of life buffer systems, preservation of diverse types of plants and animals, and the sustainable use of resources biological nature and its ecosystem. this law is used as the basis/reference for the issuance of law others related to forest protection. 2. act number 12 of 1992 law no. 12 of 1992 is a regulation regulate the system of cultivation of plants where therein specially regulated on the protection of cultivated plants, article 1 concerning general provisions, article 20 until article 27 concerning the implementation of protection cultivated plants, article 60 on legal sanctions for offender’s implementation of cultivation plant protection. protection activities done in an effort to prevent losses on cultivation plants caused by planthttp://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 497 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia disturbing organisms (all organisms that can damage, interfere with life, or causing plant death) through a pest control system integrated (article 20 paragraph 1). integrated pest management activities include (article 21): a. prevention entry of plant pest organisms to in and spreading from one area to another within the territory of the state republic of indonesia in accordance with the laws and regulations apply; b. pendent plant pest organisms; c. addiction plant-disturbing organisms (see also margono, potapov, turubanova, stolle & hansen, 2014). 3. law no. 16 of 1992 law no. 16 of 1992 specifically regulates animal quarantine, fish, and plants to prevent the entry of pests and animal diseases, fish pests and diseases, and pest organisms hazardous or infectious plants that can damage resources biological nature to the territory of the republic of indonesia, preventing its spread from one area to another, and prevent the exit from the territory of the country republic of indonesia due to animal, fish and plant traffic interstate and from another area of territory within the territory of the state republic of indonesia, whether in the framework of trade, exchange, or its spread. in this law is stipulated on general provisions (articles 1-4), quarantine requirements (article 5-8), quarantine measures (articles 9-22), quarantine area (article 23), species of pests and diseases of organism’s bullies, and carrier media (articles 2425), entry points and expenses (articles 26 to 27), coaching (articles 28 to 29), investigations (article 30), criminal sanctions (article 31), transitional provisions (article 32) and cover (articles 33 to 34). 4. law number 41 of 1999 law number 41 of 1999 is a legislation that set about forestry principles. this law constitutes a substitute for the previous forestry law is the law number 5 year 1967 considering it is no longer in accordance with the principal control and management of forests, and the demands of the development of the situation. in general, this law regulates activities in the field of forestry in indonesia including forest protection activities. in this law, the activities of forest protection and nature conservation is part of forest management activities (article 21). activities forest protection and nature conservation are specifically regulated in the article 46 to 51. in connection with forest protection and nature conservation, this law provides for: a. the objective of forest protection, i.e., to protect forests, forest areas and environment, for protection functions, conservation functions, and functions http://creativecommons.org/licenses/by-nc-sa/4.0/ 498 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b. production, achieved optimally and sustainably (article 46). c. the scope of forest protection activities, i.e., prevention and limiting damage to forests, forest areas, and forest products caused by human actions, livestock, fire, power nature, pests, and diseases; maintain and safeguard rights countries, communities and individuals on forests, forest areas, yields forests, investments, and management-related tools forest (article 47). d. forest protection authority and responsibility (articles 48 to 49) e. criminal sanctions (article 50) f. special police authority to ensure the implementation of forest protection (article 51). 5. government regulation number 45 of 2004 government regulation number 45 of 2004 on forest protection is the implementation of articles 46 to 51 and articles 77 and 80 law no. 41 of 1999 on forestry. rules the government consists of 57 chapters and 10 chapters and its explanations and promulgated on october 18, 2004, during the reign of president megawati soekarnoputri. with the enactment of the regulations this government, the government regulation number 28 of 1985 on forest protection is no longer applicable. government regulation number 45 the year 2004 on forest protection is one of the regulations government mandated by law number 41 year 1999 on forestry-related issues of forest management. activities forest management includes: [a] forest governance and forest management planning; [b] forest use and use of forest areas; [c] forest rehabilitation and reclamation and [d] forest protection and nature conservation. the following is the disclosure of the divisions of the government regulation. a. chapter i general provisions. it consists of 3 sections and 6 chapters [chapters 1 to 6]. in the understanding section, we identified five causes of forest destruction, forest and forest products, i.e., human, livestock, fire, natural resources, pests, and diseases. its authority is in the hands of the [central] government and / or the regional government, or in the hands of state-owned enterprises (if any delegation of authority from the central government). the activities are in conservation forest management unit [kphk], hutan lindung [kphl] and production forest [kphp]. it is also regulated on forest protection with the specific objectives set by the minister of forestry, which includes activities: research and development, education and training and religion and culture. while the main objective of forest protection is to safeguard the forest, forest products, forest area and environment so that 3 functions of the forest are achieved http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 499 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia optimally and sustainably. to achieve that goal is done by two principles: preventing and limiting the destruction of forests, forest areas and forest products, and maintaining and safeguarding the rights of countries, communities and individuals to forests, forests, forest products, investments and tools relating to forest protection activities. b. chapter ii implementation of forest protection. consists of 4 sections and 11 articles [chapters 7 to 17]. this chapter sets forth the four causes of forest destruction, forest, and forest products, namely human [first part], disruption of livestock [second part], natural resources [third part], pests and diseases [fourth part]. in this chapter, there is several chapters that seem to be trying to set limits on illegal logging practices, ie article 12 [regulates the obligation to complete validity certificates of forest products on forest products] and article 14 [forest utilization can only be done after permission from authorized officials]. another important article is that indigenous and tribal peoples are the implementing and responsible parties in forest protection activities over the forest areas they manage. the customary law community in question is indigenous peoples whose reality is still present and acknowledged its existence. c. chapter iii forest protection from fire. it consists of 3 sections and 14 chapters [chapters 18 to 31]. this chapter specifies the causes of damage to forests, forest areas and forest products fire. there are two fire-causing actors: human and human nature. article 19 provides that everyone is prohibited from burning forests. but there are exceptions: limited fires of forests for special purposes or inevitable conditions, including: fire control, pest and disease eradication and the promotion of plant and animal habitats, which must obtain the minister's permission first. it is also stipulated that the preparation and clearing of land for gardens and plantations is not included in a specific purpose or condition that is inevitable. d. chapter iv forestry police, ppns (civil servant investigator) forestry and forestry security units. it consists of 3 sections and 10 chapters [chapters 32 to 41]. this chapter sets out the officers in charge of forest protection activities. in this case, there are 3 apparatus: forestry police, forestry ppns and forest security units. one authority of the forestry police is, in the event of being caught red-handed, to arrest the suspect for submission to the authorities. the authorities here are ppns forestry. the forestry police also have the authority to conduct investigations on the orders of the competent authorities. ppns forestry http://creativecommons.org/licenses/by-nc-sa/4.0/ 500 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia officials have the authority to perform investigations related to forestry crimes. in its investigation task, ppns forestry officer coordinates and is supervised and supervised by polri, but not as a subordinate. the result of the investigation by ppns forestry officer is submitted to the prosecutor. however, when the ppns officer encounters a suspected act as a forestry crime, he must submit it to the polri investigating officer. the forest security unit is a security unit established by the forest management or permit holder. the main task is limited to physical safeguards in the area of forest which is the responsibility. e. chapter v criminal sanctions. it is organized in 3 chapters [article 42 to article 44]. this criminal sanction shall be imposed on any person who violates the provisions concerning the obligation of validation of forest products as well as forest utilization permits and the use of forest areas. f. chapter vi indemnification. organized into 2 chapters [chapters 45 to 46]. this chapter specifies that the responsible person of the act shall pay compensation for the act of obeying the law stipulated in the act forestry. the compensation payment will not reduce the criminal sanction. indemnification, which must be deposited into the treasury, used for rehabilitation, restoration of forest conditions or necessary measures. the amount of compensation, set by the minister, is determined on two counts: the extent of forest destruction and the effects it has on the state. the basis of the two is the physical change, physical or biological nature. g. chapter vii guidance, control, and supervision. it consists of two parts and six chapters [chapters 47 to 52]. guidance, control, and supervision are done in stages where the minister has the authority to do these three things to the governor's policy. so is the governor to the bupati or mayor. guidance activities in question are the provision of guidelines, guidance, training, direction and or supervision. control activities are monitoring, evaluation and/or follow-up activities. the result of the control performed by the governor is followed up by regent or mayor. there are no rules governing the follow up by whom the ministries control. in contrast to guidance and controls are regulated furthermore, by the minister, the provisions on supervision shall be regulated in a separate government regulation. h. chapter viii other provisions. arranging on the management of evidence in forestry criminal cases. the treatments are different, some have to be stored in the relevant agency, a http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 501 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia state confiscated storage house or plant and wildlife conservation agency, some are auctioned off as soon as possible, or otherwise seized for the state. i. chapter ix transitional provisions. the only article in this chapter, article 55, provides that existing forest protection implementing regulations, to the extent not in conflict with this pp, are deemed to be fixed valid until the issuance of new implementing regulations based on this pp. j. chapter x cover provisions. contains provisions that revoke the old pp of forest protection [pp no. 28 of 1985] and the enactment of this pp since its enactment. in addition to the above legislation at the local level, in some areas have been had regional regulations governing forest protection activities to implement forest protection in production forests, protection forests unencumbered by customary forests and forests, and provincial or regency/municipal forest parks, such as in west nusa tenggara and tarakan provinces. 6. regional regulation of tarakan city number 12 of 2004 this local regulation provides for the protection of forests and forest products the territory of tarakan city which is an attempt to prevent and limit the destruction of forests, forest areas, and forest products, retain and safeguarding regional rights over forests, forest areas, and forest products and maintain and preserve the types of plants and animals. 7. west nusa tenggara province regulation no. 5 of 2007 this regulation regulates the protection of forests, flora and fauna in the province of west nusa tenggara with efforts to prevent and limiting damage to forests, forest areas, forest products and their distribution, preventing and limiting threats to the existence of flora and fauna rare from human actions, pests, diseases, fire, predators, nature, pests and diseases, as well as maintaining and preserving rights state, community rights and individual rights over forests, forest areas, forest products, rare flora and fauna and their habitats. conclusion from the above description it can be concluded that forest protection activities in indonesia are expressly regulated in government regulation number 45 of 2004 which is the implementation of articles 46 to 51 and article 77 and article 80 of http://creativecommons.org/licenses/by-nc-sa/4.0/ 502 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law no. 41 of 1999 on forestry. law number 5 year 1990 is the basic/reference for the issuance of other laws relating to forest protection. law no. 12 of 1992 specifically regulates the cultivation of crop protection while law no. 16 of 1992 specifically regulates animal quarantine, fish, and plants to prevent the entry of pests and diseases. in addition to these laws in some areas have local regulations governing forest protection for the implementation of forest protection at the local level. references arief, a. (2001). hutan dan kehutanan. yogyakarta: penerbit kanisius. armitage, d. (2002). socio-institutional dynamics and the political ecology of mangrove forest conservation in central sulawesi, indonesia. global environmental change, 12(3), 203-217. erbaugh, j. t., & nurrochmat, d. r. (2019). paradigm shift and business as usual through policy layering: forest-related policy change in indonesia (19992016). land use policy, 86(1), 136-146. harbi, j., erbaugh, j. t., sidiq, m., haasler, b., & nurrochmat, d. r. (2018). making a bridge between livelihoods and forest conservation: lessons from non timber forest products' utilization in south sumatera, indonesia. forest policy and economics, 94(1), 1-10. jimmy, h., (2015). aspek hukum perlindungan hutan dan masarakat adat terhadap pertambangan batu bara di kampung tukul kecamatan tering kabupaten kutai barat kalimantan timur. e-journal universitas atma jaya yogyakarta, 1-16. http://e-journal.uajy.ac.id/7658/1/jurnal.pdf kaskoyo, h., mohammed, a. j., & inoue, m. (2014). present state of community forestry (hutan kemasyarakatan/hkm) program in a protection forest and its challenges: case study in lampung province, indonesia. journal of forest and environmental science, 30(1), 15-29. kaskoyo, h., mohammed, a., & inoue, m. (2017). impact of community forest program in protection forest on livelihood outcomes: a case study of lampung province, indonesia. journal of sustainable forestry, 36(3), 250263. koh, l. p., & ghazoul, j. (2010). spatially explicit scenario analysis for reconciling agricultural expansion, forest protection, and carbon conservation in http://creativecommons.org/licenses/by-nc-sa/4.0/ http://e-journal.uajy.ac.id/7658/1/jurnal.pdf journal of law & legal reform volume 2(4) 2021 503 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia indonesia. proceedings of the national academy of sciences, 107(24), 1114011144. magdalena, m. (2013). peran hukum adat dalam pengelolaan dan perlindungan hutan di desa sesaot, nusa tenggara barat dan desa setulang, kalimantan timur. jurnal penelitian sosial dan ekonomi kehutanan, 10(2), 110-121. https://doi.org/10.20886/jpsek.2013.10.2.110-121. margono, b. a., potapov, p. v., turubanova, s., stolle, f., & hansen, m. c. (2014). primary forest cover loss in indonesia over 2000–2012. nature climate change, 4(8), 730-735. reksohasiprodjo, s. (2000). ekonomi lingkungan. yogyakarta: bffe yogyakarta. republic of indonesia. (1990). undang–undang republik indonesia nomor 5 tahun 1990 tentang konservasi sumber daya alam hayati dan ekosistemnya. republic of indonesia. (1992). undang–undang republik indonesia nomor 12 tahun 1992 tentang sistem budidaya tanaman. republic of indonesia. (1992). undang–undang republik indonesia nomor 16 tahun 1992 tentang karantina hewan, ikan, dan tumbuhan. republic of indonesia. (1999). undang-undang nomor 41 tahun 1999 tentang kehutanan. republic of indonesia. (2004). peraturan pemerintah nomor 45 tahun 2004 tentang perlindungan hutan. salim, h. s. (2003). dasar-dasar hukum kehutanan. jakarta: sinar grafika. salim, h. s. (2005). hukum pertambangan indonesia. jakarta: rajagrafindo persada. shah, p., & baylis, k. (2015). evaluating heterogeneous conservation effects of forest protection in indonesia. plos one, 10(6), e0124872. wheeler, d., hammer, d., kraft, r., dasgupta, s., & blankespoor, b. (2013). economic dynamics and forest clearing: a spatial econometric analysis for indonesia. ecological economics, 85(1), 85-96. zain, a. s. (1996). hukum lingkungan konservasi hutan. jakarta: rineka cipta. zain, a. s. (1997). aspek pembinaan kawasan hutan dan stratifikasi. jakarta: rineka cipta. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.20886/jpsek.2013.10.2.110-121 504 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia “the forest is a peculiar organism of unlimited kindness and benevolence that makes no demands for its sustenance and extends generously the products of its life activity; it affords protection to all beings, offering shade even to the axe-man who destroys it.” gautama buddha http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cbbf4ca637 • 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: 7fbf23cb3a011fef • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(1) 2020 1 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia editorial law enforcement and legal reform in indonesia and global context: how the law responds to community development? indah sri utari1, ridwan arifin2 1 journal of law & legal reform, universitas negeri semarang, indonesia 2 department of criminal law, universitas negeri semarang, indonesia  law.journal@mail.unnes.ac.id, indahsuji@mail.unnes.ac.id how to cite utari, i.s., & arifin, r. (2020). law enforcement and legal reform in indonesia and global context: how the law responds to community development?. journal of law and legal reform, 1(1), 1-4. doi: https://doi.org/10.15294/jllr.v1i1.35772 abstract law enforcement in indonesia has its own complexities, as law reform which has its challenges. the first edition of the journal of law and legal reform presents ten articles relating to law enforcement and law reform in various sectors. in general, this edition tries to look at various facts that occur in the community, where in a number of legal cases considered unable to respond to rapid developments in the community. keywords: law, legal reform, law enforcement if you’re in favour of any policy—reform, revolution, stability, regression, whatever—if you're at least minimally moral, it's because you think it's somehow good for people. and good for people means conforming to their fundamental nature. noam chomsky the development of law in the global sphere gives a lot of influence in many sectors, as well as in indonesia. the dynamics of legal cases and their resolution gives the impression that society is developing so quickly and unexpectedly, while the law is lagging behind. in some cases, it is very apparent that the law has not been able to journal of law and legal reform (2020), 1(1), pp. 1-4. doi: https://doi.org/10.15294/jllr.v1i1.35772. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i1.35772 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 2 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia respond quickly and precisely to developments in the community, whereas on the one hand, legal certainty is one thing that is needed by the community. the absence and inadequate enforcement of the law can have implications for the credibility of the rule-makers, the implementers of the rules and the people affected by the rules themselves, so that all elements will be affected. for this reason, it is important to know what law enforcement really is. law enforcement is the process of making efforts to be able to erect or function of legal norms that are applicable and have been regulated as guidelines for behavior in traffic or legal relations in the life of people in the community and the state. for this reason, the provisions that have governed them will not stop in the sense of rules that do not move or die, but will still stand tall and go forward as determined by official and recognized state institutions to regulate them. broadly speaking, the process of law enforcement involves all legal subjects in every legal relationship. whoever runs the normative rules or does or does not do something by basing themselves on the norms of the rule of law, then that means that they have run or enforced the rule of law (riyanto, 2018; jayadi, 2017). to realize responsible law enforcement can be interpreted as an effort to implement law enforcement that can be accountable to the public, nation, state and at the highest peak is the responsibility to god. law enforcement is closely related to the existence of legal certainty in understanding, interpreting and enforcing legislation as a state legal system that is in force. law enforcement is also related to the benefits of law and the realization of justice in the community. the process of law enforcement cannot be separated from the form of law as a legal system that serves the interests of the community, nation and state. furthermore it is emphasized that law for humans not humans for law (rahardjo, 2009; muhtada & arifin, 2019). journal of law and legal reform, this first edition raises a special topic on "problems and challenges on law enforcement and legal reform in the global context" which is filled by ten legal articles from various experts in indonesia. in this first edition, it generally does not discuss the development and discourse of legal cases and the development of the law itself, but we in this first edition present the best articles relating to law enforcement and legal reform. the issues that we presented in our first issue are very relevant to the conditions in indonesia and also to global developments in general. for example, a paper written by maria dita kristiana from the pangudi luhur foundation criticized and analyzed the policy of implementing five school days as a form of legal reform in education. kristiana, who is also an activist and education activist in indonesia, said that the regulation faced several obstacles, especially in terms of implementation. complex bureaucracy, ineffective communication, until the readiness of human resources becomes an obstacle in implementing these rules (kristiana, 2019). another papers, how police overcomes money laundering? the study analysis of the role of central java regional police department on money laundering case, written by djoko pamungkas, analyzes how the police play a role in handling money laundering cases (pamungkas, 2019). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 3 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in a similar context, dipo lukmanul akbar wrote about "criminal law policy in handling digital asset-based money laundering in indonesia", where he emphasized that the potential for money laundering through digital means and digital-based assets was very high. akbar looked at how the criminal law policy in these cases (akbar, 2019). meanwhile, alif kharismadohan, wrote a paper on "mens rea and state loses on corruption cases: an analysis of corruption court judgment of semarang", where the main point of his paper analyzed the aspects of state losses and mens rea in criminal acts of corruption (kharismadohan, 2019). other writings in the context of legal reform in various sectors, written by ridwanto ardi kusumo and anang wahyu kurnianto, "'sak uwong sak uwit' for environmental protection based on local wisdom: an environmental law reform in indonesia", akhmad ghofar ismail and ridwanto ardi kusumo, "how government strengthens the street vendors: analysis of the role of brebes district government", damas reza kurniadi "law enforcement of motorized vehicles with muffler racing by magelang city police", ichwanul fauzi muslim "pre-release treatment in class ii a correctional institution of pekalongan", joko susanto and ali masyhar" law enforcement on fisheries crime after the enactment of law number 45 of 2009: a normative analysis", ichwanul fauzi muslim “pre-release treatment in class ii a correctional institution of pekalongan”, as well as fellista ersyta aji " the meaning of the expansion of administrative court that covers factual actions" (kusumo & kurnianto, 2019; ismail & kusumo, 2019; kurniadi, 2019; susanto & masyhar, 2019; aji, 2019; muslim). in this edition, we would like to thank the entire editorial teams of the journal of law and legal reform, especially the master of laws program, universitas negeri semarang. we also extend our deepest gratitude to all of our peers reviewers who have provided input to our journal, especially to professor frankie young, faculty of law, university of ottawa, canada, who humbly and enthusiastically agreed to become an associate editor in this journal. in the end, we also thank all the contributors in this first edition. hopefully this journal provides scientific discourse and legal thinking. references aji, f. e. (2019). the meaning of the expansion of administrative court that covers factual actions. journal of law and legal reform, 1(1), 177-192. https://doi.org/10.15294/law & legal reform.v1i1.35417 akbar, d. l. (2019). criminal law policy in handling digital asset-based money laundering in indonesia. journal of law and legal reform, 1(1), 129-176. https://doi.org/10.15294/law & legal reform.v1i1.35543 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35419 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/35419 4 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ismail, a. g., & kusumo, r. a. (2019). how government strengthens the street vendors: analysis of the role of brebes district government. journal of law and legal reform, 1(1), 49-60. https://doi.org/10.15294/law & legal reform.v1i1.35408 jayadi, a. (2017). problematika penegakan hukum dan solusinya. al risalah: jurnal ilmu syariah dan hukum, 16(1), 1-11. http://journal.uinalauddin.ac.id/index.php/al_risalah/article/view/2451 kharismadohan, a. (2019). mens rea and state loses on corruption cases: an analysis of corruption court judgment of semarang. journal of law and legal reform, 1(1), 61-76. https://doi.org/10.15294/law & legal reform.v1i1.35407 kurniadi, d. r. (2019). law enforcement of motorized vehicles with muffler racing by magelang city police. journal of law and legal reform, 1(1), 77-92. https://doi.org/10.15294/law & legal reform.v1i1.35415 muslim, i. f. (2019). pre-release treatment in class ii a correctional institution of pekalongan. journal of law and legal reform, 1(1), 93-106. https://doi.org/10.15294/law & legal reform.v1i1.35419 kusumo, r. a., & kurnianto, a. w. (2019). ‘sak uwong sak uwit’ for environmental protection based on local wisdom: an environmental law reform in indonesia. journal of law and legal reform, 1(1), 35-48. https://doi.org/10.15294/law & legal reform.v1i1.35451 kristiana, m. d. (2019). politics of law on school days policy: legal reform on indonesian education policy. journal of law and legal reform, 1(1), 5-24. https://doi.org/10.15294/law & legal reform.v1i1.35405 muhtada, d., & arifin, r. (2019). penal policy and the complexity of criminal law enforcement: introducing jils 4(1) may 2019 edition. jils (journal of indonesian legal studies), 4(01), 1-6. https://doi.org/10.15294/jils.v4i01.30189 pamungkas, d. (2019). how police overcomes money laundering? study analysis of role of central java regional police department on money laundering case. journal of law and legal reform, 1(1), 25-34. https://doi.org/10.15294/law & legal reform.v1i1.35416 rahardjo, s. (2009). hukum progresif sebuah sintesa hukum indonesia. yogyakarta: genta publishing. riyanto, a. (2018). penegakan hukum, apa masalahnya? online article, binus business law, retrieved from https://business-law.binus.ac.id/2018/12/26/penegakanhukum-masalahnya-apa/ susanto, j., & masyhar, a. (2019). law enforcement on fisheries crime after the enactment of law number 45 of 2009: a normative analysis. journal of law and legal reform, 1(1), 107-128. https://doi.org/10.15294/law & legal reform.v1i1.35590 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://journal.uin-alauddin.ac.id/index.php/al_risalah/article/view/2451 http://journal.uin-alauddin.ac.id/index.php/al_risalah/article/view/2451 https://business-law.binus.ac.id/2018/12/26/penegakan-hukum-masalahnya-apa/ https://business-law.binus.ac.id/2018/12/26/penegakan-hukum-masalahnya-apa/ journal of law & legal reform volume 1(1) 2020 93 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article pre-release treatment in class ii a correctional institution of pekalongan ichwanul fauzi muslim1 1 postgraduate program, master of laws, universitas negeri semarang, indonesia  fauzimuslim28@gmail.com how to cite muslim, i.f. (2020). pre-release treatment in class ii a correctional institution of pekalongan. journal of law and legal reform, 1(1), 93-106. doi: https://doi.org/10.15294/jllr.v1i1.35419 abstract implementing pre-release treatment for a convict is one of the tasks of a correctional institution as a technical implementation unit in the field of construction. thus, a correctional institution, in implementing correctional guidance, must consider human right protections aspects for them to be balanced with the public interest. convict constructions in a correctional institution is an effort conducted to enforce the law. the research examines how the pre-release treatment is a determined in indonesia positive law and what obstacles are faced in the pre-release treatment process in class ii a correctional institution of pekalongan. the study aims at finding out the provisions of the pre-release treatment in indonesian positive law, the provision of pre-release treatment is one form of society construction processes that is conducted based on correctional system which aims to prepare the convicts to be able to integrate with the society. therefore, they are able to play a role as a society member who owns freedom and responsibility before they are actually released. keywords: pre-release; correctional institution; implementation submitted: 9 august 2019, revised: 30 september 2019, accepted: 15 october 2019 journal of law and legal reform (2020), 1(1), pp. 93-106. doi: https://doi.org/10.15294/jllr.v1i1.35419. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i1.35772 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 94 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 93 table of contents ………………………………………………………….. 94 introduction …………………………………………………………………. 94 method …………………………………………………………………………… 95 pre-release and correctional treatment ………………….… 95 i. observation of pre-release and correctional treatment ………………………………...…….…..……………………… 95 a. definition observation of pre-release ...…………………………………... 95 b. giving observation of pre-release ……….…………………………......… 96 ii. correctional system ..................................................................... 98 a. definition of correctional system .……………………..………………….. 98 b. community coaching pattern …………………………………………...… 99 provisions on the granting of leave towards freedom in indonesian positive law ………………………………………...…… 100 i. the basis of granting release in indonesian criminal justice system ………………………………..…………………………… 100 a. idiil basis …………………………………………………………………….. 100 b. constitutional basis …………………..…………………………………….. 101 c. operational basis ……………………………………………………………. 101 obstacles and how to overcome obstacles in the process of leaving before being released in class ii a correctional institution of pekalongan ……………………... 101 conclusion …………………………………………………………………….. 102 references ……………………………………………………………………... 102 introduction basically, crime, murder, theft, robbery, rape, etc. are various court actions which make the perpetrators languishing and receiving education under the title of prisoner at the end of their graduation (release), or can make a degree which is more level than recidivist if you sing it again and repeatedly (in and out) become residents of the place. it is very alarming indeed, if lately we hear as in our beloved country at this time the terrorists that we hear or we watch through shows television or other media that is very disturbing to the public (rahman, 1992). crimes occur in every space, place and time, crime is a phenomenon of human life. the only business that can be done is doing business that can prevent and reduce crime in the community (puljević, coomber, de andrade, & kinner, 2019). crimes are closely related to punishment, because those who have committed crimes should be brought to trial and sentenced to criminal penalties. the convicts then live behind prison walls that are completely foreign to him they mix and mingle with criminals http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 95 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia from different forms of human behavior and different habits, as well as language, social stratification and diverse origins (kansil & cristine, 2003). institutional formation of prisoners in its history in indonesia is known since the enactment of the prison regulation 1971: 708, and this pattern was applied until 1963 (łuczyński, pfingsthorn, & birk, 2017). changes in views in treating prisoners in indonesia are based on an evaluation of humanity which is a manifestation of the pancasila as the basis for the nation's life outlook (brinkley-rubinstein et al., 2019). it also recognizes human rights, and after launching one of the most fundamental coaching philosophies by saharjo that prisoners are not convicted people, but lost people who have the time and opportunity to repent. the repentance basically cannot be achieved with torture but with guidance and coaching (irawan, 1995). given this point, there is a link that must be clearly considered by the supervisors and the government, how the coach is able to produce the prisoners so that they can still get recognition from the community after leaving prison (al-jumaili et al., 2018). one of the coaching in prison is to provide leave before release to prisoners who have fulfilled the requirements (bucerius & haggerty, 2019). this is in accordance with article 15 paragraph 1 of the criminal law book and the law of the republic of indonesia no.12 of 1995 concerning correctional reads : "if the convict undergoes 2/3 (two thirds) of the length of imprisonment imposed on him, at least it must be 9 months then he may be subject to conditional release or pre-term leave according to law no.12 of 1995 if the convict must undergo several criminal consecutive crimes are considered as one criminal" (balthazar, vanacker, & lambin, 2012). method this research is an empirical normative research that is by understanding law number 12 of 1995 concerning correctional facilities and analyzing the implementation of leave before release in class ii correctional institution pekalongan. the subjects of this research were class ii correctional institution pekalongan and ka. lapas klas ii a pekalongan, while the object of this research is the implementation of leave before free in lapas klas ii a pekalongan. the method used by the author in compiling this journal is the sociological juridical approach: sociological juridical approach is legal research that uses the perspective of implementing the applicable laws and regulations. http://creativecommons.org/licenses/by-nc-sa/4.0/ 96 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia pre-release and correctional treatment i. observation of pre-release and correctional treatment a. definition observation of pre-release the criminal code does not provide a clear resolution. stages in the penal system, conditional release can be explained as the final phase (stage) in the prison process of prison which is a prison defense. provisions on parole here are mandatory, but only apply outside (chance, hermosilla, coops, wulder, & white, 2016). conditional exemption related to the basic form will discuss more about the policy in negotiations related to the government. the implementation of defense to be released, part of the future that can be obtained by the convict the criminal is outside the prison wall (cherniack et al., 2016). the release of the remaining part of the prison is called parole or voorwardelijke invrijheidstelling (vi). execution of exemptions related to several countries at this time are not executed. ) which throughout the criminal period was not executed (sakidjo, 1998). elucidation of law number 12 of 1995 article 6 paragraph (1) that the fostering of fostered citizens is carried out intramurally, that is, fostering is carried out in a penitentiary, while extramural fostering carried out in a penitentiary is called assimilation, namely the process of fostering of fostered citizens who have fulfilled certain conditions by blending them into people's lives (cleary & brubaker, 2019). extramural guidance is also carried out by the correctional center called integration which is the process of guiding prisoners who have met certain requirements for life and being back in the community with the guidance and supervision of the correctional center (davidson & young, 2019). and one of the implementation of such integration is by giving him leave before being released to prisoners or fostered citizens who have fulfilled certain conditions (hamzah, 1983). article 15 of the criminal code does not mention the words of leave before being released, but a conditional release. in law number 12 year 1995 article 6 paragraph (3) letter b, parole is equated with the meaning of leave before being free, there is only a slight difference. article 15 paragraph (1) of the criminal code states that "if the convict has already made up two-thirds of the length of imprisonment imposed on him, then he may be subject to conditional release (foge, baldini, hellwinkel, hogan, & dayton, 2019). if the convict must undergo several crimes in a row, the criminal is considered as one criminal ". law number 12 year 1995 article 6 paragraph (3) letter b states that the guidance by the penitentiary is conducted on "prisoners, criminal children, and state children who get parole or leave before release" (hamzah, 1983). provision of observation pre-release is one of the inmates' training that is carried out based on a penal system that aims to prepare prisoners to be able to http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 97 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia integrate healthily with the community so that they can play their role again as free and responsible community members (gonzalez-escamilla, lange, teipel, buchert, & grothe, 2017). inmates during their loss of freedom of movement must still be introduced to the community and should not be exiled. this problem can indeed lead to misunderstanding or can be considered a difficult problem to understand (horton et al., 2017). b. giving observation of pre-release observation of pre-release is part of a form of guidance in the penal system, one of the purposes of free leave leave to correct prison inmates. the correctional system is regulated in law of the republic of indonesia number 12 of 1995 concerning corrections, in article 1 paragraph (2) stated that correctional system is a structure regarding the direction and boundaries as well as ways of fostering prisoners based on pancasila which are implemented in an integrated manner between pancasila coaches, who are fostered, and the community to improve the quality of prison-assisted citizens so that they are aware of mistakes, improve themselves and do not repeat criminal acts so that they can actively play a role in development and can live naturally as good and responsible citizens (muladi, 1985; hurley, claeson, inzana, gandhi, & child, 2019). the legal basis for granting leave rights right before release is regulated in republic of indonesia government regulation number 99 of 2012 concerning the requirements and procedure for the implementation of prisoners' rights and the minister of law and human rights regulation of the republic of indonesia number 21 of 2016 concerning terms and procedures for granting remissions, assimilation, leave for family visit, parole, leave for pre-release and leave (ibrahim et al., 2018). concerning the terms and procedure for the implementation of the rights of penitentiaries, states: a. has served at least 2/3 (two thirds) of the criminal period, with the provision that 2/3 (two thirds) of the criminal period is not less than 9 (nine) months. b. good behavior during serving a criminal period of at least the last 9 (nine) months calculated before the 2/3 (two-thirds) of the criminal period. c. the length of time before free leave is equal to the last remission, not later than 6 (six) months(inness et al., 2015). the procedure for granting free left leave is as follows: a. the correctional observer team after hearing the opinions of the members of the correctional observer team and studying the report on the development of coaching from the correctional guardians, proposed giving granting a free leave to the head of the correctional institution. b. if the head of penitentiary agrees to the proposal of the correctional observer team, then forward the proposal to the head of the regional office of the ministry of law and human rights. c. the head of the regional office on behalf of the minister may refuse or approve the granting of leave before being released after considering the results of the prison observation team session. http://creativecommons.org/licenses/by-nc-sa/4.0/ 98 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia d. if the head of the regional office of the ministry of law and human rights refuses to propose leave before being released, then within 14 (fourteen) days from the receipt of the proposal inform the rejection and its reasons to the head of the correctional institution. e. if the head of the regional office of the legal and human rights department approves the proposed leave before release, within 14 (four days) days from the receipt of the proposal, it is forwarded to the director general of correctional services. f. if the director general of correctional services agrees to the proposal to provide leave before release, the director general of correctional issues a decision on leave before release (jin, sun, jiang, wang, & wen, 2018). ii. correctional system a. definition correctional system understand the functions of penitentiaries since then the correctional system was used as a method and correctional as a process. penitentiary system as a method of fostering prisoners, is clearly happening changes in the function of a penal institution, which used to be a place of revenge as a place of formation (lam et al., 2019). the penitentiary system is a set of criminal law enforcement units, therefore its implementation cannot be separated from the development of a general conception of punishment. prisoners are not as objects but also as subjects that are no different from other human beings who at any time can make mistakes or mistakes that can be subject to crime, so they do not have to be eradicated, and what must be eradicated are factors that can cause prisoners to do things that can be contrary to law, decency, religion or other social obligations that can be subject to criminal (li, li, liu, xiong, & fang, 2018). criminalization is an attempt to sensitize convicts or criminal children to regret their actions. children who are guilty of coaching are placed in child prisons. placement of children who are guilty in a child penitentiary are separated according to their respective status, namely criminal children, state children, and civil children. the difference in the status of the child is the basis for the distinction made in their formation (luan, ji, chen, & cai, 2018). the formation of institutional convicts in its history in indonesia, is known since the enactment of stbl prison regulation 1917 no. 708. this pattern has been renewed since the penal system is known with the characteristics of the main principles which all lead to the philosophy of prisoners rather than prisoners. penitentiary system there is a penitentiary process which is defined as a process from the time a prisoner or student enters the correctional institution until it is released back into the midst of the community. pursuant to se.no.kp.10.13 / 3/1 dated february 8, 1965, it has been established corrections as a process in fostering inmates and carried out through four stages. the first stage is the maximum security stage to the limit of 1/3 of the actual criminal period, the second stage is the medium security stage to the ½ limit of the actual criminal period, the third stage is the minimum security stage to the limit of 2/3 of the actual criminal period, the stage fourth is the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 99 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia integration stage and the completion of 2/3 of the criminal period until the criminal period expires (irawan, 1995). guidance of prisoners according to the penal system consists of coaching within institutions that include religious education, general education, skills courses, recreation, sports, arts, scouting, work training, assimilation, while coaching outside of institutions includes guidance during the convicted person gets conditional crime, research social. the penitentiary system explicitly states, prisoners have rights such as the right to correspondence, the right to be visited or visited, remission, leave, assimilation and conditional release, worship according to their religion, submit complaints, get services, health, get wages for work , obtaining parole and leave before parole (martins et al., 2018). b. community coaching pattern based on the provisions of article 6 of law no. 12 of 1995, stated that: guidance of correctional fostered citizens carried out in penitentiary and guiding fostered prisoners are carried out by the penitentiary while the fostering in penitentiary is carried out on inmates and penitentiary students. guidance of correctional fostered citizens in penitentiary is carried out (milosevic et al., 2018): a. intramurally (in corrections institutions) b. extremurally (outside penitentiary) intramural guidance carried out in prisons is called assimilation, the process of fostering penitentiary citizens who have met certain requirements by blending them into people's lives (polonik et al., 2019). extensive guidance is also carried out by bapas which is called integration, which is the process of guiding the correctional guidance citizens who have met certain requirements to live and be back in the middle of the community with bapas guidance and supervision (pristiwati: 2009). extremural guidance is also carried out by the penitentiary, called integration, which is the process of guiding prisoners who have met certain requirements for life and residing in the community with the guidance and supervision of the penitentiary (schilling et al., 2019). guidance and guidance of correctional assisted residents carried out by correctional officers are correctional officers who implement the task of guiding, securing and guiding prisoners. correctional officers are functional law enforcement officers who carry out duties in the field of guidance, security, and guidance of prisoners (shi et al., 2019). article 1 paragraph (1) government regulation of the republic of indonesia number 31 of 1999 concerning guidance and guidance of correctional prisoners explains: coaching is an activity to improve the quality of devotion to god almighty, intellectual, attitude and behavior, professional, physical and spiritual health (rules government of the republic of indonesia number 31 of 1999 concerning guidance and guidance of penitentiary guidance citizens article 1) (wang et al., 2019). the coaching aims so that the prisoner after finishing his criminal period will not repeat his actions (crime) and be able to live in a proper society and participate in development (wang et al., 2019). http://creativecommons.org/licenses/by-nc-sa/4.0/ 100 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia provisions on the granting of leave towards freedom in indonesian positive law i. the basis of granting release in indonesian criminal justice system correctional institutions are as one of the government institutions that carry out an activity in the field of fostering prisoners. to ensure legal certainty for the activities of inmates' guidance, a strong legal basis is needed. this is very necessary because the correctional institution in carrying out its functions must be in accordance with the provisions of the law that contain aspects of protecting one's human rights in balance with the public interest. implementation of coaching relates to granting leave before release at the correctional facility always prioritizing the protection of human dignity. the implementation of guidance in correctional institutions is based on pancasila by taking into account the provisions that set limits on the actions of restrictions or restrictions on human rights. because every citizen has the right to equal treatment before the law by not making a difference (kuswanto, 2002). this equality of rights is based on the opinion that humans are the same before them, therefore the same degree, there must be no restraints that result in humiliation of human dignity, consequently everyone must respect others without distinguishing the nation, gender, origin, and others (darmodiharjo, 1982). the legal basis for the treatment of prisoners' guidance processes in indonesia, especially in class ii a penitentiary institutions, pekalongan is: 1. idiil basis 2. constitutional basis 3. operational basis includes: a. law no. 1 of 1946 concerning the criminal law b. law no. 12 of 1995 concerning correctional facilities c. government regulation no. 32 of 1999 concerning terms and procedures for the implementation of the rights of fostered citizens d. decree of the minister of republic of indonesia no.m.01-pk.04.10 of 1999 concerning assimilation, parole, and leave before release (warren et al., 2019). a. idiil basis pancasila is an idiil foundation which is the source of all sources of law and is also a source of legislation in force in indonesia. pancasila upholds human dignity and dignity, views humans as a round and whole unity, which has a soul and a body. between soul and body must be harmonious and balanced. penal objectives improve and foster prisoners to be good human beings. coaching towards them must be based on pancasila. various coaching efforts including giving leave before being released to http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 101 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia prisoners who have met the requirements(wasserman, mor-yossef, & greenberg, 2016). b. constitutional basis the 1945 constitution is a constitutional basis which among other things in its preamble states that the state's goal is to protect all indonesians and all of indonesia's bloodbath, realize public welfare, educate the nation's life and participate in carrying out world order based on freedom, eternal peace and justice social (winograd et al., 2019). c. operational basis 1. law no.1 of 1946 concerning the criminal law code. 2. law no.12 of 1995 concerning corrections. 3. government regulation no.32 of 1999 concerning requirements and procedures for the implementation of the rights of fostered persons. 4. decree of the minister of justice of the republic of indonesia no. m.01-pk.04.10 of 1999 concerning assimilation of parole and free leave for free (xiang et al., 2019). ii. obstacles and how to overcome obstacles in the process of leaving before being released in class ii a correctional institution of pekalongan obstacles in the process of leaving before being released in class ii a correctional institution of pekalongan starting from granting of leave before being released to prisoners is one part of the training carried out in class ii a correctional institution of pekalongan as a manifestation that the prisoner concerned has shown change in behavior for the better. granting leave before free must meet the predetermined requirements, namely substantive conditions and administrative requirements. both of these conditions are always related and inseparable with the provision of leave before being free cannot always be carried out in accordance with the formula that has been determined. there are several obstacles that need attention so that the leave giver before being released to prisoners can run smoothly. efforts to overcome the barriers to leave before being free is overcome the above and at the same time the solver carried out by the head of prison is to establish cooperation between government and private agencies including the department of religion in the context of fostering the convict's personality by fostering religious awareness, it is expected that prisoners will be able to strengthen their faith, with the understanding that prison fostering can realize the consequences of big deeds and wrong deeds and can carry out the sharia according to their respective religions. this guidance can be done through formal and non-formal education and recently director general pas has signed the joint decree with the open university. http://creativecommons.org/licenses/by-nc-sa/4.0/ 102 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this opportunity is not only intended for penitentiary officials, but also for prisoners. it is hoped that through this collaboration intelligence can be improved by both officers and their assistants, while non-formal education is carried out according to the needs and abilities of penitentiaries through skills training courses, public lecture activities and opening as wide opportunities as possible to obtain outside information, such as reading the newspaper, watching tv, listening to the radio, and so on. in order to catch up in the field of education, both formal and non-formal, learning is also done through the pursuit of the package a program and the pursuit of business. in the field of fostering legal awareness the authors expect to work with the local district court or institution others or empowering penitentiary officials who have a bachelor of law education background to provide legal counseling aimed at achieving a high level of legal awareness of prisoners so that they are aware of their rights and obligations in order to participate in upholding law and justice. conclusion guidance of prisoners needs to be improved relations with the community, because guiding prisoners is not solely charged to correctional officers but also becomes the duty and responsibility of the community. therefore correctional officers must be able to encourage community involvement in coaching tasks. references al-jumaili, s. k., eaton, m. j., holford, k. m., pearson, m. r., crivelli, d., & pullin, r. 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(2019). oxidized alginate beads for tunable release of osteogenically potent mesenchymal stromal cells. materials science and engineering c, 104(june), 109911. https://doi.org/10.1016/j.msec.2019.109911 http://creativecommons.org/licenses/by-nc-sa/4.0/ 106 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote we have a racially based justice system that overpunishes, fails to rehabilitate, and doesn't make us safer. piper kerman, orange is the new black http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.goodreads.com/work/quotes/6499995 journal of law & legal reform volume 2(4) 2021 505 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article human trafficking in thailand in perspective of human rights law natalia sihotang1, channarong wiriya2 1 university of hkbp nomensen, medan, indonesia 2 chiang may university, thailand  channarong@chiangmay.edu.th cited as sihotang, n., & wiriya, c. (2021). human trafficking in thailand in perspective of human rights law. journal of law and legal reform, 2(4), 505-514. https://doi.org/10.15294/jllr.v2i4.48760 submitted: december 7, 2020 revised: march 11, 2021 accepted: july 11, 2021 abstract trafficking in human beings is increasingly due to the greatest gain of the perpetrators. human trafficking is a global humanitarian problem. with the involvement of many countries, both as a country of origin, destination, and transit country, making this problem more complex. the complexity of the problems is increasing as the neighbors and organized transnational crime networks are organized. thailand is one of the transit countries, sources, and destinations for international human trafficking. these conditions led to the government of thailand began to realize the urgency of the dangers of human trafficking. this problem is increasingly complex because human trafficking is related to child and female prostitution. keywords: human trafficking, human rights, thailand journal of law and legal reform (2021), 2(4), pp. 505-514 doi: https://doi.org/10.15294/jllr.v2i4.48760 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i4.48760 https://doi.org/10.15294/jllr.v2i4.48760 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 506 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction the rapid impact of globalization has such a profound effect on a country, the development of various industries in the world today can be seen so vastly that it chooses aims to improve the economy of a country, this reflects globalization. globalization is an international union of individuals with information networks and economic, social, and political institutions occurring rapidly and profoundly at a dose never experienced during the history of the previous world. in other words, globalization is something new that has never been seen before and change old habits into new habits (williamson, 2017; majeed & malik, 2017). the existence of globalization is a system that can facilitate various countries in this world can be connected to each other easily and futures, the impact caused by the existence of globalization can be a positive impact or negative impact. at first glance there are two factors driving globalization according to spillane (2019) that is the first is the shift and development led by the government to market-led development and second is the advance in technology that facilitate coordination of production and marketing at global level. from these two factors there is a more important role in the process of accelerating the process of globalization is the progress in technology, especially information technology, production, and transportation with the progress caused by the things that lead to the easier and cheaper flow of goods, services, knowledge, and human resources from a country to another country becomes a mixed and integrated country and the population of the world. this is what causes human trade in the world. according to siegrid tautz, angela bahr and sonja wolthe (2006), the cause of the rampant cases of trafficking is due to the fact that when the east and west borders of the post-cold war are open and economic globalization is increasing which causes cases of trafficking and child exploitation are increasing tremendously in asia and africa. trafficking in persons under the definition of article 3 of the un protocol is the recruitment, transfer, transfer, holding and receiving of persons by threat or other lies or vulnerable positions or payments or gain advantage to obtain the consent of someone in charge of others. the existence of trafficking has been prevalent in various countries, especially developing countries, thailand where the country is still developing in southeast asia which has a high level of human trafficking. in this case, human trafficking that occurred in thailand is a very crucial event (zimmerman & kiss, 2017; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 507 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia farrel, dank, de vries, kafafian, hughes, & lockwood, 2019; thinyane & bhat, 2019). human trafficking in thailand is increasing from year to year, giving the government serious attention to this case. the trafficking victims in thailand are mostly women and children. trafficking in thailand is forced to become a lowwage laborer, 57% of workers there in thailand is a victim of human trafficking. human trafficking has a negative effect on social life, especially the social of the victims. the tremendous human trafficking in thailand in the last period has given the government serious attention to the case and thailand has its own way of avoiding an increase in human trafficking. the increase of thai economy can be seen from the development of its tourism industry sector which is the main industry in thailand (greenbaum & bodrick, 2017; willis, wick, bykowski, doran, li, & tran, 2021). in addition to the tourism industry, thailand also advanced to its agricultural industry and the fishery industry. the increase in these three industries had a negative impact as it resulted in trafficking in persons forced into forced labor by being forced laborers and commercial sex workers in sex tourism in thailand (malikhao & servaes, 2017; jermsittiparsert, 2017). thailand became the country of origin, transit country, and the largest destination of victims of human trafficking originating from various countries. thailand is a center of sexual and labor exploitation in the greater sub-mekong area. so, the human trafficking also involves countries directly adjacent to thai territory such as laos, myanmar, and cambodia. at the same time thailand is also one of the countries with the current the largest migration especially in the sub-mekong region. as a transit country of human trafficking, thailand becomes a victim of trade returns originating from russia, poland, the czech republic, and south america. generally, thailand also sends trafficking victims to other countries such as japan as the priority destination of the netherlands, germany, australia via malaysia, hongkong, india, malaysia, and the middle east region for the purpose of foreign sex business. method this paper is based on literature research by exploring the variants of secondary sources contained in several studies that are suppressed in written text in the form of books, papers, journal articles and relevant reports. the procedures are commonly used: (1) inventorying and identification of literature related to http://creativecommons.org/licenses/by-nc-sa/4.0/ 508 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia trafficking, (2) recognizing the diverse patterns of cases that arise, then analyzing and presenting descriptively various cases then linked to the context of globalization, and (3) conclusion. human trafficking in thailand and its comparison with indonesia: a legal perspective human trafficking is a modern form of slavery, taking place both at the national and international levels. with the development of information technology, communication and transformation mode of trafficking human traffics increasingly sophisticated. trafficking is not an ordinary, organized, and transnational, so it can be categorized as transnational organized crime. such is the sophisticated way of trading people who must be followed by a legal device that can trap the perpetrator. a special legal instrument is required which covers aspects of prevention, protection, rehabilitation, repudiation, and social reintegration. trafficking can happen to every human being, especially to women, thus effort protection of women and children is one that must be implemented (jones, king, & edwards, 2018). human trafficking, today, is a matter of concern to the public, both nationally and internationally. various efforts have been made to prevent the occurrence of human trafficking practices. normatively, legal rules have been created to prevent and deal with human trafficking. however, trafficking persists, especially with regard to women and children. the complexity of the problem of human trafficking is exacerbated by the ignorance of the victims. victims of human trafficking willingly pay someone to go and enter a country and work as prostitution. after working as a prostitute for some time, he can return to his home country by bringing in some life (santad, ratchadapunnathikul, 2018; malikhao & servaes, 2017). increase in trafficking in thailand are driven by cultural factors and economic factors. based on the cultural factors of thailand has a high level of trade because of the social practices in the culture that allows human trafficking to flourish. buddhism as a major religion in thailand also seems to provide a space of tolerance to the development of human trafficking. in buddhist understanding, women have more responsibility to meet the needs of their http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 509 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia families. while from economic factors, understanding is based on the flow of migration that occurred in thailand. human trafficking itself is a consequence of the presence of migratory flows especially in areas with close borders. trafficking to thailand is dominated by commodities originating from neighboring countries such as myanmar, cambodia, laos, and surrounding areas. in article universal declaration of human rights, it is stated no shall be held in slavery or servitude: “slave trade shall be prohibited in all their forms". the prohibition of slavery is also contained in the international covenant on civil and political rights. by a different sentence but having the same meaning as the clearly states that "no one shall be held in slavery: slavery and the slave-trade in all their forms shall be prohibited. thus, slavery is a prohibition (arby, damayanti, & dipokusomo, 2021; pimonsaengsuriya, 2019; nugraha, 2018). in organization, it is not explained what is meant by slavery. the notion of slavery, according to the status or condition of a person over whom any or all the powers attach to the rights of ownership are exercised. in fact, issues related to slavery are qualified as international crimes, in addition to war crimes and crimes against humanity. therefore, this issue becomes an important issue for any country to engage in its national law, even in a state of war or emergency (nugraha, 2018; prasetya, 2020). the development internationally, has brought the problem of slavery into international problems. slavery has evolved as a juice cogens. the international criminal tribunal for the former yugoslavia has decided that enslavement is included in the definition of crimes against humanity. similarly, the international criminal court statute, enslavement and sexual slavery are said to be crimes. according to the icc, enslavement is defined as the exercise of any or all the powers attaching to the right of ownership over a person. in article, it expressly states parties shall take all appropriate measures, including legislation, to suppress all forms of traffic in women and the exploitation of prostitution of women. especially those related to women. the provisions as contained in article of cedaw indicate that the problem of "traffic in woman" and prostitution of woman is very contrary to humanity and dangerous for the individual concerned and the family and society at large. therefore, states parties shall sanction any person who: (1) seeks, moves, or invites others, for the purpose of prostitution, even if the person concerned agrees; (2) exploiting others as prostitution, even if the person agrees. in addition to these issues, cedaw has also provided limits on treating women in doing the work in article (banuati, 2020; arista, 2018; syapriyani, 2020; tastama, 2019; latifiani, 2019; selyawati, 2017). http://creativecommons.org/licenses/by-nc-sa/4.0/ 510 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia convention stipulates the notion of force or compulsory labor as all work or service which is exacted from any person under the menace of any penalty, and for which the said person has not been offered voluntarily. more than 25 years later, the approved additional instruments, later referred to as the abolition of forced labor convention. in the convention, what is meant by "suppression of forced labor" is "political coercion, labor discipline, or racial, national or religious discrimination; as a method of mobilizing and using the laboratory for purposes of economic development; an as punishment for having participated in strikes" (selyawati, 2017). problems related to children, cannot be separated from the attention of the international community. in short, all forms of child exploitation should get the attention of all countries. convention on the rights of the child is one of the conventions governing matters relating to the protection of children's rights. article states that what is meant by child is every human being under the law applicable to the child, the majority is attained earlier. under this provision, it is further determined that there is a necessity for the state to pay attention to all forms of violence against children. this is clearly stated in article the treatment of children committed by force is very likely. the illegal use of children for sexual interest and the use of children for pornographic matters is of concern, as set forth in article whereas trafficking in children also receives attention as stated in article states parties shall take all appropriate national, bilateral, and multilateral measures to prevent the abduction of the sale of or traffic in children for any aspect of the child's welfare. seeing the provisions contained in it appears has not organized a complete set of things related to the child. the contained are then complemented by optional protocol to the convention on the rights of the child. this protocol extends the notion of "sale of child, child prostitution, and child pornography. the prohibition of trafficking and the exploitation of children is also addressed in convention on the worst form of labor. in relation to child labor, the approved instruments relating to the minimum age convention. along with the development of child labor, then the worst forms of child labor convention was established. worst forms of child labor is defined as all forms of slavery or labor compound, including forced or compulsory recruitment of children for armed conflict. international law also provides protection to individuals, as migrants or migrant workers. the international instrument concerned is the convention on the protection of the rights of all migrant workers and members of their families. in this convention it is stated that the right to life of migrants and http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 511 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia members of their families shall be protected by law. legal protection is not only from the recipient country but also from the country where the worker belongs. protection against migrant workers, an extension of human rights that need to be protected by law. the problem is the illegal migrant worker, the rights are clearly stated in article 8. the convention is intended to allow migrants workers to be free from all forms of slavery, and pressures. the state shall sanction any person / group of persons who commit violence against migrant workers. listening to what has been described above, it is clear that "human trafficking" is very important to note and dealt with. to that end, international institutions have also regulated the issue in international instruments. the main thing in the handling of human trafficking is the formation of vision and cooperation that continues ongoing. human trafficking case which is a transnational organized crime is a transnational crime committed by a group of people where the activity of this crime is not only involving one country only so that thailand can own to solve this problem. establishment of laws in overcoming eradication of trafficking in persons and migration flows thai government cooperation with southeast asian countries and international institutions. looking at the development and enhancement of human trafficking issues in thailand, the uniap thailand builds a knowledge base on human trafficking through: (1) consolidation of lessons learned, and good practices developed from various sectors. (2) facilitate the development of national public library resources the ineffectiveness of thai government program 509 on trafficking and migration of human problems. (3) acts as information clearing house on all trade initiatives in thailand. (4) developing information kits trading and translating documents of importance from english to thailand. (5) disseminating information on trafficking in thailand through the national email network and thai newspapers to increase coverage for all stakeholders in thailand. uniap has implemented an agenda in thailand to reduce and respond to human trafficking issues. some of the things that have been done by uniap are policy making and coordination with thailand in the form of prevention, protection, and prosecution. the first is policy and coordination, which combines all types of interventions on human trafficking at the central and http://creativecommons.org/licenses/by-nc-sa/4.0/ 512 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia provincial levels. the second is the prevention done by uniap for thailand, that is activity in location sources and destinations including awareness-raising campaign activities on human trafficking and safe migration, as well as education, capacity building and vocational training. the third is protection undertaken by uniap in reducing trafficking conditions in thailand, with activities at local sources and destinations including rescue, identification, rehabilitation, legal aid, acceptance and reintegration. last is prosecution, which is done from traders and exploiters in thailand are required to strengthen by applying new regulations regarding anti trafficking in persons act b.e 2551 (2008) effective on 5 june. this applies to everyone based on equality, not just women and children. conclusion this study concluded that human trafficking one of the serious problems. because this trafficking seizes or violates human rights for people who become victims of trafficking. as for the factors that cause the occurrence of trafficking is due to economic weakness or due to poverty, minimal / low education, attitude that is always less satisfied with the economic income in thailand so that victims, and lifestyle hedonism. in dealing with trafficking cases, the efforts of the thai government are: first, combating trafficking in thailand, involving thai authorities and other special teams. second, providing capacity building and direct assistance to victims of trafficking. third, support the enforcement of human rights. fourth, the thai government cooperates with international parties in relation to the eradication of human trafficking. the impact of trafficking is a negative impact. for example, the victim of trafficking is a woman, certainly will always feel not confident when going to marry his partner because previously been a victim of rape by traffickers and feel tend to blame him. while the negative impact for the thai government is that the lack of concern for the people. and judged by the public that the thai government has not been on the side of victims of trafficking practices. in thai human rights enforcement must be based on conventions or instruments of international law relating to trafficking in persons. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 513 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references arby, d. l. a., damayanti, c., & dipokusumo, g. p. h. 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(2021). studying human trafficking in thailand increases epas competencies and compels action at home. journal of social work education, 57(1), 70-84. zimmerman, c., & kiss, l. (2017). human trafficking and exploitation: a global health concern. plos medicine, 14(11), e1002437. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 49 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article how government strengthens the street vendors: analysis of the role of brebes district government akhmad ghofar ismail1, ridwanto ardi kusumo2 1 leader store, business company, brebes, central java, indonesia 2 notary and official certifier of title deeds, kendal regency, indonesia  deares111@gmail.com how to cite: ismail, a.g., & kusumo, r.a. (2020). how government strengthens the street vendors: analysis of the role of brebes district government. journal of law and legal reform, 1(1), 49-60. doi: https://doi.org/10.15294/jllr.v1i1.35408 abstract the empowerment of street vendors in an area, if appropriately managed, will be able to improve the economy of the community and the local government. it is the duty of the local government. this study aims to find out the efforts and impacts of street vendors' empowerment by the brebes regency government. the results showed that: (1) street vendors' empowerment efforts carried out by the brebes regency government were reasonable, but it would be better if street vendors’ empowerment efforts had special regional regulations related to street vendors’ empowerment. (2) the impact of empowerment by the brebes regency government is divided into two aspects, namely social and economic issues. common elements, for example, the formation of street vendor associations, a more organized environment, in financial aspects, for instance increasing street vendors' income and increasing the income of brebes regency. keywords: street vendors; empowerment; local government; policy submitted: 12 july 2019, revised: 25 august 2019, accepted: 28 october 2019 journal of law and legal reform (2020), 1(1), pp. 49-60. doi: https://doi.org/10.15294/jllr.v1i1.35408. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:deares111@gmail.com https://doi.org/10.15294/jllr.v1i1.35772 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 50 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 44 table of contents ………………………………………………………….. 44 introduction …………………………………………………………………. 44 method …………………………………………………………………………… 45 strengthening streets vendors by proper policy ……….… 45 i. brebes regency government efforts in strengthening street vendors ……………………..…………… 37 a. policy and empowerment ………………………………………………….. 45 b. social assistances for street vendors ……………………………………… 46 ii. the impact of street vendors empowerment by the brebes regency government ……………………………………… 48 a. human development or bina manusia …………………………………….. 48 b. business development or bina usaha ……………………………………… 48 c. community development or bina lingkungan ……………………………. 49 conclusion …………………………………………………………………….. 50 references ……………………………………………………………………... 50 introduction development is the process of changing from a less favorable condition to a better situation. growth in the economy in an area cannot be separated from the informal sector, namely street vendors (lata, walters, & roitman, 2019; arifin, 2019). street vendors are economic activities in the form of the informal sector that open businesses in the production and sale of goods and services using relatively small capital and occupy public spaces that are considered strategic (haryono in the yusdi, 2011:12). street vendors, if managed properly, can improve the economy of the community and local government (lee, lu, yang, & chang, 2019). in empowering street vendors in indonesia, referring to presidential regulation number 125 of 2012 concerning coordination of structuring and empowering street vendors and regulation of the minister of home affairs number 41 of 2012 concerning guidelines for structuring street vendors, street vendors have the right to be considered by local governments. street vendors are considered to create a lot of problems in addition to city spatial planning, for example, the problem of garbage or waste generated by street vendors, besides the traffic jams that are generated because they are needed on the sidewalk or in that area (kearney, shemla, van knippenberg, & scholz, 2019). the brebes regency government in its efforts to empower street vendors does not have clear guidelines or references. this is because the brebes regency government does not have specific regional regulations regarding street vendors. in the absence of this regional regulation, the empowerment carried out by the brebes http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 51 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regency government is less than optimal. in addition, the lack of public areas in the brebes regency has an uneven distribution of street vendors in the brebes regency. street vendors prefer to sell on the side of the road if it is not monitored by the government, this happens on veteran street, brebes district. method the method used in this research is descriptive qualitative by taking research locations in brebes regency, brebes regency. brebes district was chosen as the location of the study because the brebes local government provided assistance in the form of shelters at only a few points in the brebes sub-district by the brebes regency government. researchers examined at several points containing shelters in brebes regency. the primary data source in this study was the result of an interview with street vendors who received shelters, cooperatives and small and medium enterprise office dan civil service police. secondary data are documents obtained from cooperatives and small and medium enterprise office and civil service police related policies relating to empowering street vendors. data collection tools and techniques used in this study include observation, interviews, and documentation (higgins et al., 2019). the validity test used in this study uses source triangulation (gharaei, karimi, & hoseini shekarabi, 2019). data analysis techniques use interactive data analysis which includes data reduction, data presentation, and drawing conclusions (faiola, papautsky, & isola, 2019; arifin, waspiah, & latifiani, 2018). strengthening streets vendors by proper policy i. brebes regency government efforts in strengthening street vendors a. policy and empowerment community policy is an activity carried out by the government to meet the needs of the community (clough marinaro, 2019). public policy is determined by the government. the policy level can be at the general level, implementation level, and technical level (crittenden, crittenden, & ajjan, 2019). a policy must also be possessed by no importance. not important from the policy, namely (1) policy objectives, (2) problems, (3) guarantees (demand), and (4) impact or results (handoyo, 2008: 1; jhody, 2017). conceptually empowerment or empowerment comes from the word "power" (power or empowerment). therefore, the main idea of empowerment is in contact with the concept of power (suharto, 20017: 57). empowerment is a way by which http://creativecommons.org/licenses/by-nc-sa/4.0/ 52 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia people, organizations and communities are directed to be able to dominate (rule over) their lives (corwin & johnson, 2019). according to suharto (2017: 93), social assistance is a strategy that really determines the success of community empowerment programs. in accordance with the principle of social work, which is "helping people to be able to help themselves," community empowerment is very concerned about the importance of strong public participation (cheung, davies, & trück, 2019). street vendors are all people who carry out business activities with the intention of obtaining legitimate income, are carried out on a non-permanent basis, with limited ability, located in places or consumer centers, do not have a business license (alma, 2017: 157). the characteristics of street vendors are: a. business activities, not well-organized b. do not have a business license c. irregular in business activities, both in terms of place of business and working hours d. crowded on sidewalks, or protocol road edges, in centers where many people are crowded e. peddling his wares while shouting, sometimes running toward consumers (ojeda & pino, 2019). the problem of street vendors is a problem that cannot be separated from the problem of population explosion from urban growth(cheong, yammarino, dionne, spain, & tsai, 2019). most of them belong to the lower economic layers of society, in the economic and social structure. the distinguishing characteristic of this group is their irregularity peddling their wares, which legally violates the applicable provisions (pembuain, priyanto, & suparma, 2019). in the context of efforts to empower street vendors, the government of the republic of indonesia issued regulations of the president of the republic of indonesia number 125 of 2012 concerning coordination of structuring and empowering street vendors and regulation of the minister of home affairs no.41 of 2012 concerning guidelines for structuring street vendors. brebes regency in terms of empowering street vendors in the district of brebes received assistance from the ministry of cooperatives and micro enterprises of the republic of indonesia in an effort to empower street vendors by providing buildings or shelter. this construction cost 400 million rupiah with an allocation of 50 shelters built at several points in the district of brebes. efforts to empower street vendors must be monitored and directed, in terms of empowering street vendors in brebes it is the obligation of the brebes regency government. the brebes regency government in its efforts to empower street vendors cannot relinquish responsibility for monitoring and directing street vendors after empowering. referring to suharto (2017), that social assistance is centered on tasks or functions that can be abbreviated in the acronym 4p: enabling, empowering, protecting, and supporting. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 53 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b. social assistances for street vendors 1. enabling it is a function related to motivating and opportunities for the community. the number of social worker tasks associated with this function includes setting an example, conducting mediation and negotiation, building joint consensus, and managing resources (kaasinen et al., 2019). social workers are called to be able to mobilize and coordinate these resources so that they can be reached by clients (yakubu madaki & bavorova, 2019). the implementation of the empowerment of street vendors by the brebes regency government accommodates and provides space for street vendors to discuss and channel their aspirations every two months which are initiated brebes civil service police. to easier accommodate street vendors, civil service police forming associations of street vendors in brebes district. besides the street vendors must be members of the cooperative namely makmur jaya. in addition, empowerment efforts from cooperatives and small and medium enterprise office conduct coaching which in 2017 was conducted in three places in brebes regency, one of which was in brebes district. however, this coaching is not specific to street vendors but for all traders including street vendors. 2. empowering this function is related to education and training to strengthen community capacity. the facilitator plays an active role as an agent who provides positive and directive input based on the knowledge and experience of the community he is assisting (peng et al., 2019). raise public awareness, convey information, conduct confrontations, organize forms of reinforcement. as a function in social assistance, education refers more to a process of activity, rather than as a result of an activity (tatebe et al., 2019). the implementation of empowering street vendors in brebes district by the brebes regency government through civil service police in the association of street vendors is facilitated to gather and voice their aspirations related to regulations or submit complaints regarding their trading activities. not only when discussing routine meetings of street vendors, but civil service police also conducts counseling, guidance, and direction to street vendors at certain times according to the schedule of activities of civil service police in brebes regency. as well as street vendors who have become members of cooperatives specifically for street vendors and traders in the traditional brebes market namely makmur jaya cooperatives will get further strengthening. 3. protecting this function is related to the interaction between facilitators and external institutions on behalf of and in the interests of the assisted communities (shiningeni, chimwamurombe, shilangale, & misihairabgwi, 2019). social workers can be tasked with finding resources, defending, using the media, improving community relations, and building networks. the protection function also involves the task of social http://creativecommons.org/licenses/by-nc-sa/4.0/ 54 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia workers as consultants, people who can be consulted in the problem-solving process (soon, 2019). the protection function in empowering street vendors in brebes district by brebes regency is carried out by the civil service police and the brebes regency police (polsek). this protection effort was realized with the presence of patrol activities carried out by both the brebes regency police and the civil service police. in addition, street vendors who feel the thugs or other disorders can report it on social media civil service police and brebes regency police there. in addition, complaints can be made through the telephone numbers of the two agencies. 4. supporting this refers to the application of practical skills that can support positive change in society (richardson-ngwenya, restrepo, fernández, & kaufmann, 2019). assistance is required not only to be a change manager who organizes groups but also to be able to carry out technical tasks in accordance with a variety of basic skills such as conducting social analysis, managing group dynamics, establishing relationships, negotiating, communicating, and seeking and managing sources of funds (prabhu et al., 2019). in the effort to empower street vendors carried out by the brebes regency government in the support function, including becoming a member of the makmur jaya cooperative, becoming a member of the street vendor community in accordance with the area they sell. in these cooperatives and associations, street vendors can communicate, exchange ideas, and discuss their experiences while selling. it is expected that with this interaction that occurs between street vendors they can add knowledge, new experiences, and information that makes the street vendors can be more developed. ii. the impact of street vendors empowerment by the brebes regency government in the practice of community empowerment carried out by many parties, it is often limited to economic empowerment in the context of poverty alleviation or poverty alleviation. therefore, community empowerment activities are always carried out in the form of developing productive activities to increase income. about this, sumadyo in mardikanto (2017: 113) formulated three main efforts in every community empowerment, which he called tri bina: human development (bina manusia), business development (bina usaha), and community development (bina lingkungan). a. human development or bina manusia human development is the first and foremost effort that must be considered in every effort to empower the community. this is based on the understanding that the purpose of development is to improve the quality of life or human welfare(carroll, 2019). in addition, in the science of human management occupies the most unique http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 55 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia element. because, in addition to being one of the resources as well as an actor or manager of management itself. human development is all activities that include efforts to strengthen/develop capacity (carmi, alsayegh, & zoubi, 2019). human development conducted by the brebes regency government related to the empowerment of street vendors based on interviews conducted by researchers with street vendors and related agencies is the formation of a community of traders in the district of brebes, especially for street vendors. there are 10 associations of street hawkers in the brebes sub-district which were initiated by the civil service police brebes. in the association, civil service police brebes also holds regular meetings every two months. with the formation of the street vendor community in brebes district, this opens space for street vendors to discuss, exchange ideas and experience among street vendors. with the positive things that are expected to increase the creativity of street vendors in the future. b. business development or bina usaha business development becomes an important effort in every empowerment because human development without providing an impact or benefit for improving welfare will not sell and even increase disappointment (bergeron, noskoff, hayakawa, & frediani, 2019). conversely, only human development that is able to provide an impact or benefit for the improvement of welfare will be sold or get support in the form of community participation (andersen & pitkänen, 2019). business development carried out by the brebes regency government related to empowering street vendors in brebes district according to the results of the study was the formation of cooperatives for street vendors named makmur jaya cooperatives. according to the results of research with related agencies, this cooperative is intended for street vendors. the new street vendors who want to get a shelter must register with the street vendor cooperatives that sell in the district of brebes. based on the results of researchers' interviews with street vendors, the researchers felt that the brebes regency government in an effort to empower street vendors was not optimal. the government should conduct socialization and training for street vendors. this was done with the aim of increasing the creativity of street vendors in selling. in addition, routine meetings of street vendors should be held once a month so that they can coordinate faster. from the results of interviews with street vendors conducted by researchers in the field, researchers found information that street vendors also needed capital assistance to develop their businesses. the business capital assistance should be given by the government so that street vendors can develop their businesses. with the development of the street vendors business, it will increase the income of street vendors, besides increasing the income of street vendors it will also have an impact on increasing regional income and can increase the income per capita in the brebes area. http://creativecommons.org/licenses/by-nc-sa/4.0/ 56 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia c. community development or bina lingkungan so far, the notion of the environment is often interpreted as just the physical environment, mainly concerning the preservation of natural resources and the environment (mehanna & mehanna, 2019). but in practice, it is important to realize that the social environment is also very influential in business and life sustainability. it is this kind of awareness that drives the issuance of uu no. 25 of 2007 concerning investment, and uu no.40 of 2007 concerning the company, which includes social and environmental responsibility by investment/companies. community development is carried out by the brebes regency government to support the activities of street vendors and is a supporter of street vendor empowerment carried out by routine patrols, checking and routine meetings of the community and with the assistance of cooperatives for street vendors supported by the brebes regency government who are supported to the maximum extent possible to seek conducive clothing so that street vendors can develop. in addition, the brebes regency government has issued regional regulation no. 1 of 2015 concerning peace and public order. with this regulation, it is expected to discuss a conducive environment for street vendors to carry out their trading activities. every time, civil service police brebes as an enforceable local regulation finds street vendors who are difficult to manage. the cooperative aims to foster and develop and supervise traders in the district of brebes, especially street vendors, often found to still violate these regulations, according to data obtained by researchers in the field of street vendors who have limited hours of selling from 05.00 wib until 03.00 wib often found the street vendors who are still selling until more than 03.00 wib brebes regency civil service police also makes various efforts so that street vendors obey the rules that have been set, by obeying the regulations that have been set will create a conducive climate for the community and of course for the street vendors themselves. in addition, the brebes regency government in its efforts to develop the environment also utilizes the association of street hawkers who have formed to coordinate between street vendors and the brebes regency government. with the regular meeting every two months it is hoped that the coordination of the local government with the street vendors will run well. this coordination is useful for maintaining good relations between street vendors and local governments, which will have an impact on facilitating local government supervision of street vendors. formation of street vendors community in brebes district also serves to maintain the relationship between street vendors with other street vendors. this aims to prevent things that are not desired. the researcher believes that the empowerment of street vendors conducted by the brebes regency government has been going well, but there are still some things that need to be considered in further efforts to empower street vendors in brebes regency. brebes regency according to the researchers must have special regulations governing efforts to empower street vendors. not a few districts or cities that already have specific local regulations on empowering street vendors. with the existence of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 57 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia special regulations regarding the empowerment of street vendors, it is expected that the empowerment of street vendors in the brebes district is more directed and structured. conclusion at this part, this paper concludes that the efforts to empower street vendors carried out by the brebes regency government are already good, but it would be better if in the efforts to empower street vendors in brebes district there were special local regulations related to empowering street vendors. the impact of empowering street vendors by the brebes regency government is divided into two aspects, namely social and economic aspects. in the social aspect, the impact felt by street vendors is that street vendors do not need to bring merchandise home because the merchandise can be left in shelters, buyers feel comfortable because it is not hot and the environment is more orderly and orderly. the negative impact of some street vendors still selling roadside in front of their shelter. the economic impact is that most street vendors experience an increase in income and regional income also increases. the negative impact is because some street vendors feel their income has decreased with the presence of new street vendors who sell in the area. furthermore, based on the results of research on efforts to empower street vendors conducted by the brebes regency this research suggests that for street vendors, they should be orderly and obey all rules that have been set by the brebes regency government, so that the environment is cleaner, more beautiful, orderly, safe and orderly. the brebes regional 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(2019). food safety knowledge of food vendors of higher educational institutions in bauchi state, nigeria. food control, 106(february), 106703. https://doi.org/10.1016/j.foodcont.2019.06.029 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 129 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article criminal law policy in handling digital asset-based money laundering in indonesia dipo lukmanul akbar1 1 managing partners at dipo & partners law office, jakarta  dipolukmanulakbar@gmail.com how to cite akbar, d.l. (2020). criminal law policy in handling digital asset-based money laundering in indonesia. journal of law and legal reform, 1(1), 129-176. doi: https://doi.org/10.15294/jllr.v1i1.35543 abstract the rapid development of information technology has given birth to a variety of services with a variety of digital information facilities, where the sophistication of information technology-based products is able to integrate all information media so as to make the world become borderless and cause significant social, cultural, economic and law enforcement changes take place quickly. nevertheless, the conditions in indonesia which are growing and developing towards an information technologybased industrial society, in some cases are still lagging behind to follow the development of information technology. the concepts and theories used to analyze are criminal law policy, law number 8 of 2010 concerning money laundering. the paper emphasized that the development of information technology that is developing now, especially in the field of digital assets is able to become an opportunity for money laundering. the paper highlighted that in the case of committing the crime of money laundering is carried out using the digital currency-based information technology method and can be used for cross-country trade. so that the crime of money laundering based on digital assets is very easy to do and can have a worldwide network. keywords: criminal law policy; money laundering crime handling; digital assets submitted: 20 august 2019, revised: 11 september 2019, accepted: 28 october 2019 journal of law and legal reform (2020), 1(1), pp. 129-176. doi: https://doi.org/10.15294/jllr.v1i1.35543. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i1.35772 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 130 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 129 table of contents ………………………………………………………….. 130 introduction …………………………………………………………………. 131 i. background ……………………………………………………………..… 131 a. technology development and crime opportunities ……………………... 131 b. financial technology in the industrial revolution ………………………. 132 c. renewal of criminal law in technology issues ………………………….. 132 ii. research problem identification , limitation and formulation ………………………………………………………………. 134 a. identification of the problems ……………………………………………… 134 b. formulation of the problems ………………………………………………. 134 c. identification of the problems ……………………………………………… 134 literature review ………………………………………………………….. 134 i. criminal law policy …………………………………………………… 134 a. the foundation of criminal law policy ………………………………….. 134 b. criminal law countermeasures …………………………………………… 135 c. policy formulation …………………………………………………………. 137 d. law enforcement policy …………………………………………………… 139 e. understanding of criminal law policy …………………………………… 140 method …………………………………………………………………………… 142 digital assets and money laundering in indonesia ………. 142 i. digital assets become opportunities for money laundering ………………………………………………………………… 142 a. development of digital assets ……………………………….…………….. 142 b. blockchain technology and its complexity ………………………………. 143 c. crowd funding ……………………………………………………………… 145 d. e-money …………………………………………………………………….. 145 e. insurance …………………………………………………………………….. 146 f. p2p lending ………………………………………………………………… 147 g. payment gateway …………………………………………………………... 147 h. remittance ……………………………………………………………...…… 149 i. securities …………………………………………………………………..… 149 ii. acts of money laundering using digital asset media .. 150 a. cases of money laundering using digital assets media ………………... 150 b. bitcoin and money laundering in indonesia …………………………..… 154 iii. opportunities for digital asset-based money laundering crime ………………………………………………………. 157 a. cdd or edd obligations ………………………………………………….. 158 b. not required to report tkm …………………………………………….. 159 c. illegal fintech and money laundering ……………………………………. 159 iv. penal policy in the handling of digital asset-based money laundering crime …………………………………………… 164 a. current criminal law policy towards countering money laundering crime ……………………………………………………………………… 164 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 131 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b. the application of money laundering crimes from the perspective of the money laundering act of 2010 ……………………………………… 167 conclusion …………………………………………………………………….. 172 references ……………………………………………………………………... 172 introduction i.background a. technology development and crime opportunities the development of information technology that has developed now, has presented a variety of digital services, in which the technological information sophistication is able to easily integrate all fields of digital services so as to make the world become borderless, this has led to social, cultural, economic and economic changes. and fast and significant legal behavior. nevertheless, the conditions in indonesia that are growing and developing towards an information technology-based industrial society, in some respects, especially in the legal sector, are still lagging behind to keep abreast of such information technology. the development of information technology which currently has many benefits for people in indonesia, such as some development and advancement in facilities that occur in the fields of business, government, education, and many more. the ease in question is very young in interacting without having to deal directly with each other. so that this can have a negative advantage, on the other hand it also impacts the negative impact on the unprepared regulations that are proportional to the effects of criminal acts which will continue to grow and be misused by the community, resulting in unlawful acts. utilization of the development of information technology which has many positive impacts but also cannot be denied many also have negative impacts. crime that uses information technology based is considered more effective and efficient, this is because it can easily access to all corners of the world, meaning conventional crime such as fraud, theft, threatening, embezzlement, gambling, defamation, money laundering to criminal acts of terrorism and attorney through the information technology media can be done online by individuals or groups and or a corporation, with the risk of being caught or in contact with a very small law with a result of greater losses for both society and the state. this causes the behavior of individuals and groups in committing criminal acts to be increasingly sophisticated by utilizing information-based information technology from the internet. development is always evidenced by the existence of innovation and creativity, in this case in the field of information technology which has provided many conveniences for human life. the business world is increasingly competing to always innovate and win the market, where when business people do not do that, then they will always be left behind and businesses will not easily survive to face market demand. http://creativecommons.org/licenses/by-nc-sa/4.0/ 132 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia joseph schumpeter (1934) has argued that based on his theory that “creative destruction” entrepreneurial values will bring up new markets through new methods. if joseph schumpeter's thoughts were clashed with legal instruments, then of course the law is not able to catch up with the dynamics of this very dynamic business. that what has been stated by josseph schumpeter the value of entrepreneurship is an innovation and creativity that is always developing in the business market using new methods, where the intuitive thing will greatly facilitate the community in using a population offered by business actors, so because it is product which has been introduced to the public by providing conveniences, then the legal basis or regulations or legislation may not necessarily be used as a legal basis for these stone products. b. financial technology in the industrial revolution financial technology (fintech) is a form of application of information technology in the financial sector. this is evidenced by the emergence of various digital financial innovation models that first started in 2004, financial institutions in the uk that run money lending services. then the digital financial model through software, the cryptocurrency that was conceived by satoshi nakamoto in around 2008. in historical perspective, the core concept of the development of information technology is actually inseparable from the application of the concept of peer-to-peer landing (p2p) used by napster in 1999 for music sharing (pratama 2016). the rapid development of the investigation technique was marked by the emergence of fintech, where the intended fintech is one of the digital currencies (cyrtocurency) which in relation to the history of this currency was made by satoshi nakamoto in 2008, using a peer-to-peer (p2p) concept application ), so that the development of the p2p technique is emerging, then there are financial service invasions in the field of financial services. the industrial revolution has many new technical developments, as it develops, the forms of crimes are also developing, but generally the crimes are still conventional, only the methods applied always change with the times. ronni r. nitibaskara argued that: "social interaction that minimizes physical presence is another feature of the information technology revolution. with this kind of interaction, social relations deviation in the form of crime will adjust its shape to that character. " c. renewal of criminal law in technology issues reform in criminal law as part of a criminal law policy in which the rapid development of information technology is also important for the renewal of new norms that apply in accordance with existing values in indonesian society. the importance of reforming a criminal justice system as a whole with due regard to legal culture, legal structure, and legal substance so that criminal law policy occupies a very strategic position in the development of modern criminal law to achieve certainty and usefulness of the law. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 133 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia "that there are many reasons that can be cited as the cause of a change in society, but changes in the application of the results of modern technology are widely cited as one of the causes for social change (raharjo, 1980). that the occurrence of these changes can be related to a social values, behavioral patterns, organization, arrangement of state / community institutions, and the authority of social interaction and so on where a change that occurs in the community will have an impact on the legal pattern in society. the globalization process gave birth to a phenomenon that changed the conventional communication model by giving birth to reality in the virtual world (virtual reality) that is known today with the internet. the internet is developing so rapidly as a culture of modern society, said to be a culture because through the internet a variety of cyber community activities such as thinking, creating, and acting can be expressed in it, whenever and wherever. its presence has formed a separate world known as cyber-space or pseudo world is a world of computer-based communication offers a new form of virtual reality (indirect and intangible) (rahardjo, 2002) as stated by agus rahardjo above, a globalization mechanism is shown by the initial to interact through conventional methods to change into interaction in cyberspace or interact using the internet, in relation to the internet, then a separate world directly or indirectly will occur a society and free to interact throughout the world. information technology is growing so rapidly that it must be made responsively related to the regulation, the law cannot be made before the problem, but in general the countermeasure is made first, and this will be much better. the development of digital crime has indeed been known as cyber war or cyber law , where there are so many positive impacts , but on the one hand there are also many negative impacts. this is in line with the term barda nawawi arief which states that: cybercrime identical with "criminal acts in cyber space " or " cyber space " or commonly also known as " cybercrime "( nawawi arief, 2006) nawawi arief (2003), criminalization policy is a policy in determining an act that was not a criminal offense (not convicted) into a criminal act (an act that can be convicted). so in essence, the policy of criminalization of information technology crime is part of a criminal policy (criminal policy ) using the means of criminal law (penal ), and therefore includes part of the "criminal law policy" (penal policy ), especially the formulation policy. furthermore, according to the bna, the criminalization policy is not just a policy of establishing or formulating or formulating what can be convicted (including criminal sanctions), but also includes the problem of how the formulation / legislation policy is arranged in a unified harmonious and integrated legal system (legislative policy). http://creativecommons.org/licenses/by-nc-sa/4.0/ 134 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ii. research problem identification , limitation and formulation a. identification of the problems from the background description above, problems can be identified , namely, starting from (1) digital assets which are always developing rapidly can be used as a tool for money laundering; (2) the criminal law in force in indonesia regulates the crime of money laundering, which does not mean that the regulation of the criminal act in force in indonesia is carried out on the basis of digital assets; (3) the legal policy perspective is a legal renewal, in which criminal law must be able to keep up with the times as a form of countermeasures for a crime, especially in this case digital assets that are growing very fast. b. limitation of the problem the problem is limited based on above problem identification, the research will focus on the "criminal law policy against money laundering prevention-based digital asset". with the limitation of this problem, it is hoped that researchers will focus more on studying and examining the problems that exist in the criminal law policy against digital asset-based money laundering crime. c. formulation of the problem the problems studied will be more assertive and writing legal research to achieve the objectives it is necessary to formulate the problem as follows: 1. does digital assets open up opportunities for money laundering; 2. whether the current criminal law policy is a comprehensive provision in dealing with digital asset-based money laundering crimes; 3. what is the prospect of a comprehensive criminal law policy on the prevention of digital asset-based money laundering in the future literature review i. criminal law policy a. the foundation of criminal law policy national development is development that aims to realize people. where is the national development of indonesia to achieve a just, prosperous and prosperous society both materially and spiritually based on pancasila and the 1945 constitution. so that one part of national development is development in the field of law, which is known as law reform. . the renewal of national law as part of a series of national development is carried out thoroughly and integrated both criminal law, civil law, and administrative law, as well as formal law. efforts to reform the law are inseparable from public policies in controlling and shaping the pattern of how far the community is regulated and directed. thus it is http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 135 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia very important to make the law makers and public policy even educators aware that the law and public policies that are published will have broad implications in the social, economic and political fields. unfortunately, specialization both in work, education and research are based on these two disciplines (law and social science), so that various information sourced from the two do not always meet (converge) even often not the same and congruent (incongruent) . fifth un congress (1976) stated that the term policy comes from english policy or in dutch politie. black's law dictionary identifies policy as: the general principles by which a government is guided in its management of public affairs,... or principles and standards regarded by the legislature or by the policy should be coordinated and the whole should be integrated into a general social policy of each country. " sudarto (1965) stated that the crime prevention policy or commonly known as “criminal politics” according to sudarto is a rational effort from the community in tackling crime. this definition is taken from the definition of marc ancel who formulated criminal politics as " the rational organization of the control of crime by society ", marc ancel, social defense (translation of la nouvelle defense sociale), the purpose of dealing with crime is to protect the community to achieve community welfare. the formulation of the objectives of such criminal politics is stated in one of the 34th training course reports organized by unafei in tokyo in 1973 as follows: summary report, resource material series most of the group members agreed some discussion that "protection of the society" could be accepted as the final goal of criminal policy, although not the ultimate aim of society, which might perhaps be described by terms like "happiness of citizens", "a wholesome and cultural living", "social welfare" or "equality" (unafei, 1974: 95) agreement on the results of the course can be a foundation in criminal policy as an effort to tackle crime for social welfare and social protection. b. criminal law countermeasures the use of criminal law in regulating the public (through criminal legislation) is essentially part of a policy step (policy). furthermore, to determine how a rational step (effort) in conducting a policy cannot also be separated from the objectives of the development policy itself integrally. thus in an effort to determine any policy (including criminal law policy) is always related and cannot be separated from the national development goal itself, namely how to realize prosperity for the community. nawawi arief (2006) stated that crime prevention policies or commonly known as “penal policy” according to gp hoefnagles can be pursued by: 1. the application of criminal law (criminal law application) 2. prevention without crime (prevention without punishment) 3. influencing the public's view of crime and punishment through mass media (influencing views of society on crime and punishment) the first category is categorized into efforts to overcome crime through the penalty line, while the second and third includes efforts to overcome crime through http://creativecommons.org/licenses/by-nc-sa/4.0/ 136 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the non-penalty line. with regard to the 2 (two) facilities, muladi (2002) emphasized that: criminal policy is a rational and organized effort of a society to tackle crime. criminal policies aside from being repressive through the criminal justice system (the penal approach ) can also be carried out by means of " non-penal " means through various prevention efforts without having to use the criminal justice system, for example efforts to improve community mental health, legal counseling, legal reform and civil law administration, and so on. the non-penal approach covers a very broad area of crime prevention and covers both policy and practice. non-penal means are basically preventive measures, starting from the education of the code of ethics to the renewal of civil law and administrative law. the policy varies from one country to another according to the cultural, political and intellectual backgrounds that exist in each society. furthermore, criminal policy (criminal policy) which includes a penal approach through the criminal justice system, it will naturally come into contact with criminalization that regulates the scope of acts that are against the law, criminal liability, and sanctions that can be imposed, both in the form of a criminal (punishment) and actions (treatment). it is means of crime prevention policies are carried out using the means of penal (criminal law), then criminal law policy (penal policy) must pay attention and lead to the achievement of the objectives of social policy in the form of social welfare and social defense . tackling crime must have a balance between the means of punishment and non reasoning (integral approach). from the perspective of criminal politics, the most strategic policy is through non-penal means because it is more preventive. even so, penal policies are still needed in the prevention of crime, because criminal law is one of the means of social policy to channel " social dislike " or social disapproval/ social abhorrence which is also expected to be a means of social protection (social defense). the means of "penal" is "penal policy" or "penal law enforcement policy" very vital role in the process of law enforcement to tackle crime. the 3rd criminology seminar in 1976 in one of its conclusions stated: criminal law should be maintained as a means of social defense in the sense of protecting the public against crime by repairing or rehabilitating the creator without reducing the balance of the interests of the individual (maker) and the community (muladi & nawawi arief, 1998). muladi (2002) also emphasized political crimes committed by means of penal means the use of the criminal justice system, ranging from criminalization to the criminal execution. the approach by means of punishment must be continuously carried out through various efforts to improve the criminal justice system, both from the aspect of legislation (criminalization, decriminalization and depenalization), improvement of system infrastructure, improving the quality of human resources, and increasing public participation in the criminal justice system. systemically, the criminal justice system includes a network of justice systems (with sub-systems of the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 137 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia police, prosecutors, courts and penal) that utilize criminal law as its primary means. criminal law in this case includes material criminal law, formal and criminal law. the operationalization of legal policies by means of "penal" (criminal) can be done through a process that consists of three stages namely: 1. formulation stage (legislative policy) 2. application phase (judicial/judicial policy) 3. stage of execution (executive/administrative policy). based on the description of the three stages of the criminal law enforcement policy contained within three powers/authorities, namely legislative/formulative authority in terms of determining or formulating what can be criminally oriented to the main problems in criminal law include acts that are against the law, error / responsibility what penalties and sanctions may be imposed by lawmakers. the application stage is the power in terms of implementing criminal law by law enforcement officers or the court and the executive/administrative stage in implementing criminal law by the executing / criminal execution apparatus. c. policy formulation judging from the perspective of criminal law, the formulation policy must pay attention to internal harmonization with the criminal law system or the general penal code in force today. it cannot be said that there is a harmonization/synchronization if the formulation policy is outside the current criminal law system formulation policy is the most strategic stage of the “penal policy “ because at that stage the legislature has the authority to determine or formulate criminal actions which are oriented to the main problems of criminal law, including acts that are against the law, mistakes , criminal liability and witnesses what can be imposed. therefore, efforts to tackle crime are not only the task of law enforcement officials but also the work of lawmakers (legislative apparatus) (nawawi arief, 2012). planning (planning) in combating crime with the criminal law system at the stage of formulation in essence according to nils jareborg covers three main problems in the structure of the criminal law system, namely the problem: formulation of criminal acts / criminalization and criminal threatened (criminalization and threatened punishment) 1. criminalization (adjudication of punishment sentencing) 2. criminal execution (execution of punishment) in line with the above concept, the draft of the new criminal code is prepared by departing from 3 (three) main materials / substances / problems in criminal law, namely: 1. criminal matters 2. problems of error or criminal liability. 3. criminal and criminal matters. all material/substantive criminal law, formal criminal law and criminal implementation law can be seen as a single unit of the criminal system (the sentencing http://creativecommons.org/licenses/by-nc-sa/4.0/ 138 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia system). lhc hulsman put forward the notion of a criminal system as “statutory rules relating to criminal sanctions and crimes” (the statute rules relating to penal sanctions and punishment). from the above understanding barda nawawi arief provides a broad understanding of punishment as a process of giving or imposing a criminal sentence by a judge, it can be said that the criminal system includes the understanding of: 1. the whole system (laws and regulations) for criminalization; 2. the whole system (the rule of law) for granting or imposing and carrying out criminal offenses. 3. the whole system (statutory regulations) for the functioning or operationalization or concretization of crime; 4. the whole system (legislation) that regulates how the criminal law is enforced or operationalized concretely so that someone is given sanctions (criminal law). the question of the formulation of a criminal act/criminalization arises when we are confronted with an act that is detrimental to another person or community whose laws do not yet exist or have not been found. in connection with the criminalization policy according to sudarto, attention needs to be paid to the following core matters: 1. the use of criminal law must pay attention to the goals of national development, which is to realize a prosperous just society that is evenly materially and spiritually based on pancasila; in connection with this (the use of) criminal law aims to tackle crime and make granting to the act of prevention itself, for the sake of welfare and community protection. 2. actions that are endeavored to be prevented or endured by criminal law must constitute "undesirable acts", such asacts that bring harm (material and spiritual) to the community members. 3. the use of criminal law must also take into account the principle of costs and results (cost and benefit principle) 4. the use of criminal law must also pay attention to the work capacity or capability of law enforcement agencies, namely the network until there is overloading of the workload (overbelasting). teguh prasetyo and abdul halim barkatullah (2005) based on the above considerations, it can be concluded that the reasons for criminalization in general are: the existence of victims: 1. criminalization is not solely intended for retaliation; 2. must be based on the principle of principle ratio ; and 3. there is a social agreement (public support) criminal law policy issues related to the criminalization of what conduct is made criminal acts and penalization such as what should sanction imposed on the offender. criminalization and penalization are central issues for which a policy-oriented approach is needed . criminalization (criminalization) covering the scope of an unlawful act (actus reus), criminal liability (mens rea) and the sanctions to be imposed in the form of punishment (punishment) and action (treatment) . criminalization must be done carefully, not to create the impression of a repressive violation of the principle http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 139 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of ultimum remedium ( ultima ratio principle ) and backfire in social life in the form of excessive criminalization ( over-criminalization), which actually reduces the authority of the law. criminalization in material criminal law will also be followed by pragmatic steps in formal criminal law for the purpose of investigation and prosecution (muladi, 2003). d. law enforcement policy criminal law enforcement is part of criminal politics as one part of the overall crime prevention policy, indeed the enforcement of criminal law is not the only hope for being able to resolve or overcome the crime completely. this is reasonable because in essence the crime is a humanitarian and social problem that cannot be solved solely by criminal law. muladi, (1995: 25-26) highlighted that although criminal law enforcement in the context of overcoming crime is not the only hope, but its success is expected because in this field of law enforcement is at stake the meaning of the state based on law. the role of law enforcement officers in the state based on the law was also stated by satjipto rahardjo . satjipto rahardjo who stated, "the law does not have any function, if it is not applied or enforced for lawbreakers, those who enforce the law in the field are law enforcement officers." henry campbell black (1999: 797). the term enforcement in english is known as enforcement in the black law dictionary, meaning the act of putting something as a law into effect, the execution of a law. whereas law enforcement officer means those whose duty it is to preserve the peace. in a large indonesian dictionary, sudarto (1986) in the same context also emphasized that law enforcement is attention and cultivation, both acts that are against the law that actually happened (onrecht in actu ) and acts against the law that might occur (onrecht in potentie). meanwhile, according to soerjono soekanto, conceptually, the core of law enforcement lies in the activity of harmonizing the values relations that are set out in the rules that are solid and manifest and action attitude as a series of translation of the final stage values, to create, maintain, and maintain peace association of life. for this reason, adji (2005) concerned that part of social policy , this law enforcement policy covers the process of what is called criminal policy . this conception of law enforcement policies will later be applied through the institutional level through a system called the criminal justice system, hence there is a link between the law enforcement policy and the criminal justice system, namely this sub-system of the criminal justice system will implement a law enforcement policy in the form of preventing and overcoming the occurrence of a crime in which the roles of this sub-system will become more acceptable together with the role of the community, and without the role of the community, law enforcement policies will not be optimized. soerjono soekanto (2009) stated that the main problem of law enforcement actually lies in the factors that might influence it. according to soerjono soekanto the factors that influence law enforcement have a neutral meaning, so that the positive or negative impact lies in the contents of these factors, as follows: 1. the legal factor itself (the law) http://creativecommons.org/licenses/by-nc-sa/4.0/ 140 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. law enforcement factors are those who form and apply the law. 3. factors of facilities or facilities that support law enforcement. 4. community factors, namely the environment in which the law applies or is applied. 5. cultural factors, namely as the results of works, inventions, and tastes based on human initiative in the association of life. these five factors are closely interrelated, because it is the essence of law enforcement, also a measure of the effectiveness of law enforcement. among all these factors, according to soerjono soekanto law enforcement factors occupy a central point as a measure of the extent to which contributions to the welfare of society. law enforcement is very bound by criminal procedure and proof. harahap (2000) stated that proof is a problem that plays a role in the process of hearing court hearings. through proof, the defendant's fate is determined. if the results of the evidence using the evidence determined by the law "are not enough" to prove the guilt of the defendant, the defendant is "acquitted" of the sentence. on the other hand, if the defendant's guilt can be proven with evidence called article 184 of the criminal procedure code the defendant is declared "guilty". he will be sentenced. harahap also highlighted that the criminal procedure code (kuhap) explicitly mentions several pieces of evidence that can be submitted by parties who litigate before a trial. based on article 184 of the criminal procedure code, the evidence is: (1) witness statement; (2) expert statement; (3) letter; (4) hints; and (5) defendant's statement. while the explanation of article 184 of the criminal procedure code is explained "in the event of a quick examination, the judge's conviction was sufficiently supported by a valid piece of evidence". based on article 184 and its explanation, it means that except for a quick examination, to support the judge's conviction, more than one or at least two valid evidences are needed. for this matter article 183 of the criminal procedure code explanation of article 184 of law no.8 of 1981 concerning the criminal procedure code of the state gazette of the republic of indonesia number 76 is explicitly formulated that "judges may not impose a crime on a person except if at least two legitimate pieces of evidence he gained the conviction that a crime had actually taken place and that the defendant was guilty of it ”. thus in the criminal procedure code explicitly provides legality that in addition to being based on the elements of the judge's conviction, proof with at least two valid evidences is necessary to support the element of error in determining whether a person is actually proven to have committed a crime or not. e. understanding of criminal law policy the development of globalization and the advancement of information technology demand the renewal of criminal law as part of the applicable criminal law policy in accordance with the values of indonesian society. countermeasures against information technology criminal acts need to be balanced with improvement and development of the criminal law system as a whole, which includes the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 141 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia development of culture, structure and substance of criminal law. in this case, criminal law policy occupies a strategic position in the development of modern criminal law. law policy (legal policy) within the meaning of state policies (public policy) in the field of law should be understood as part of social policy is the effort each society / government to improve the welfare of its citizens in all aspects of life. this can contain two dimensions that are related to each other, namely social welfare policy and social protection policy. while the definition of criminal law according to sudarto is to contain legal rules that bind to acts that meet certain conditions in the form of criminal consequences. the granting of criminal law in the general sense is a field of lawmakers based on the principle of legality, which originated from the aufklarung era, which in short reads: nullum crimen, nulla poena, sine praevia lege (poenali) . in short, nullum crimen sine lege means there is no criminal offense without law and nulla poena sine lege means there is no criminal without law. so the law establishes and limits which actions and penalties (sanctions) can be imposed on violators. so to wear poena or criminal requires the law (criminal) first. the definition of legal policy and criminal law above provides a definition of a criminal law policy (criminal policy / strafrechtspolitiek ) as, how to try or make formulate a good criminal law. such an understanding can also be seen in the definition of "penal policy”, proposed by marc ancel, that penal policy is a science as well as an art which ultimately has a practical goal to enable positive legal regulations to be formulated better and to provide guidance not only to legislators, but also to courts that apply the law and also to the organizers or executors of court decisions (ancel, & paul, 1965: 4-5). ancel argued that the twentieth century criminal law system still had to be created. such a system can only be devised and refined by the joint efforts of all people of good will and also by all experts in the social sciences. 126 the criminal law system consists of (1) criminal law regulations and sanctions; (2) a criminal law procedure; and (3) an implementation mechanism (criminal). the definition of the "criminal law system" from marc ancel provides a. mulder's foundation in providing a policy or political understanding of criminal law (penal policy/strafrechtspolitiek ), to determine: 1. how far the applicable criminal provisions need to be changed or updated (in welk opzicht de bestaande straf bepalingen herzien dienen te worden); 2. what can be done to prevent the occurrence of criminal acts (wat ganggrad worden om strafrechtelijk gedrad verkomen ); 3. the method of investigation, prosecution, trial and criminal conduct must be carried out (hoe de operating, vervolging, acting en tenuitvoerlegging van straffen dient te verloppen). based on the above policy, efforts and policies to make criminal law regulations which in essence cannot be separated from the purpose of crime prevention. so, the policy or politics of criminal law is also part of criminal politics. in other words, from http://creativecommons.org/licenses/by-nc-sa/4.0/ 142 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the perspective of criminal politics, the politics of criminal law is identical to the understanding of crime prevention policies with criminal law. method legal research according to cohen and olson is "legal research is the process of finding the law that governs activities in human society " legal research is a process that constructs the discovery of legal thinking that governs community activities. in line with this , p. mahmud marzuki stated "that legal research is a process to find the rule of law, legal principles and legal doctrines to answer the legal issues at hand". legal research is research to find a formulation of legal development. research is a basic tool in the development of science and technology. this is because the research aims to reveal the truth systematically, methodologically and consistently. through the research process, analysis and construction of the data that has been collected and processed is carried out. legal research is a scientific activity that is based on certain methods, systematic and thinking, which aims to study one or several specific legal phenomena, by analyzing them. so that the legal facts are then used as a reference resolution for problems that arise in the symptoms in social and state life. ashofa (2013: 20-21) states that a qualitative approach which means focusing on the general principles underlying the manifestation of symptom units in human life, or patterns that are analyzed by socio-cultural phenomena using the culture of the community concerned. to get a picture of the prevailing patterns. these patterns are analyzed again using objective theory. digital assets and money laundering in indonesia i. digital assets become opportunities for money laundering a. development of digital assets the industrial revolution has reached the era of 5.0 in which industry 5.0 conceptualized the continuation of the cloud and computer -based 4.0 industry. technology 5.0 by using calobaration from biology, for example, is artificial intelligence ai, robotics, internet of things (iot) and big data. reported by bluenotes (2019), according to a 2018 report by japan's leading business body, the japan business federation (keidanren), society 5.0 will depend heavily on ai, robotics, internet of things (iot) and big data to provide excellence technology needed by japan to overcome the problem of aging today. the emergence of society 5.0 that was echoed by japan was considered inseparable from the condition of the population in the state of sakura. the number of young japanese who are shrinking into the workforce has found the prospect of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 143 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia having to support a whole generation of old retirees. one of japan's leading researchers on population trends is professor ryuichi kaneko, a visiting professor at meiji university and former deputy director general of the national population and social security research institute his research shows that based on current trends, japan's population tends to shrink from 127 million in 2015 to 88 million in 2065 and 59.7 million at the turn of the next century in 2100. as people move towards the turn of the century, many other countries will face the challenges of a labor force that is declining and a rapidly growing population (technozone, 2019). indonesia itself has entered the industrial revolution 4.0, in which the industry revolutionary presents disruptive technology that results in rapid changes and has the ability to undermine large companies that were previously pioneers in mastering technology. this phenomenon also allows people to invest in investments with a different model than before by utilizing digital technology as part of the development of information technology. in addition, digital assets are starting to feel the effects of industry development 4.0. one of them we can see from the development of cryptocurrency that allows to be able to invest in digital currencies on a p2p basis and not be limited worldwide however, technological developments not only facilitate banking-based noncash transactions, but give birth to financial digitalization in a new platform in the form of digital currency or crypto-currency. the practice developed by bitcoin and farad egypt. in its development, digital-based currencies are able to show a more stable value compared to conventional currency rates. this currency has been used by some of the world community in trade transactions. ojk will only regulate fintech business actors whose core business includes deposits (lending funds), lending (fund distribution), capital raising (capital collection), and market provisioning (market provision). whereas bi will regulate fintech business actors whose main business is in the form of clearing and settlement (settlement of payment transactions). b. blockchain technology and its complexity as a vast country, indonesia faces two main challenges in the midst of rapid economic development and national development, namely the urgency of an integrated infrastructure and the credibility of governance in various sectors. lack of business infrastructure, high cases of corruption in many sectors and human error in managing data in both the government and private sectors are still common factors that shape indonesia's reputation in the eyes of the global community. regarding data management, the obstacle to achieving accuracy lies in the centralized approach of the internet-based system that was built. a software system that is basically designed to send data from one party to another requires a centralized server as a publisher and data manager. when there is a disruption to the server, the website cannot be accessed and automatically the user cannot use the service optimally. blockchain technology was born in response to the concerns of a number of parties about the workings of a centralized software. this technology was born in 2009 at the same time as the emergence of bitcoin—a virtual currency that is http://creativecommons.org/licenses/by-nc-sa/4.0/ 144 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia becoming the current trend. technology blockchain is the underlying technology bitcoin goes without relying on server centrally and thus avoid the risk of downtime. the blockchain system comes with changing the centralized approach to decentralized. in principle, blockchain technology conditions each server that runs this software to form a consensus network automatically to mutually replicate transaction data and mutually verify existing data. therefore, when one server is hacked, the server can be ignored because it is considered to have data that is different from the majority of the other server networks . this makes blockchain technology relatively far stronger against attacks than centralized technology because there is always at least 1 server running to handle transactions. blockchain technology allows network consensus to record and validate each transaction so that data that has been entered cannot be falsified, lost or damaged so that it cannot be manipulated by the network provider. the analogy of how a blockchain works is almost the same as a cash book in a bank which records all transactions made by its users. the difference is that only the authorities can access the transaction information in the bank cash book, while transactions through the blockchain can be seen by all users because the information collected is also distributed to everyone who runs the server. in addition, because server access is granted to everyone, no party can falsify or modify transactions. the sector that first explored the blockchain was certainly the financial sector. bank ocbc, for example, conducted a pilot transfer between singapore and malaysia branches which proved to only take 5 minutes. bank santander, one of the largest in the uk, projects that this technology can save bank operating costs by more than 20 billion dollars per year. during its development, blockchain technology was also utilized by other sectors. sony global education in collaboration with ibm published articles and diplomas on the blockchain network so that they could not be forged, damaged or lost. in the health sector, its application is carried out on a broader scale by several countries, one of which is estonia. one patient's record or medical record at hospital a can be accessed by hospital b when the patient is treated at hospital b, in a short time because it has been recorded in the blockchain network . in the food sector, ibm is collaborating with food manufacturers and distributors to reduce contamination in the global supply chain. through the blockchain , food transactions around the world can be collected massively, so that if there is a case of food contamination, it is very easy for the relevant authorities to track the source and carry out rapid isolation. another example is alibaba in collaboration with pricewaterhouse coopers to help solve china's food security. ernst & young's accounting and consulting firm, in a different case, launched a blockchain platform to facilitate a shared car ownership scheme. thus blockchain technology is basically a 'digital transcript' that was created to avoid fraud, but at the same time allows access for third parties as needed. this technology, which is still very young, has not yet been applied in all fields, and many experiments continue to be carried out by many companies. but i believe in http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 145 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the future, blockchain technology will change the way the system works as a whole, in the financial sector and also throughout the industrial sector. this system is believed to be effective in promoting transparency, security and accuracy of transaction data. c. crowd funding fundraising, charity, and other social activities can now also be done through startups engaged in crowd funding. more precisely, crowd funding is a startup that provides a fundraising platform to be channeled back to people in need, such as victims of natural disasters, victims of war, funding the creation of works, and so on. the fundraising is done online. one example of the biggest crowd funding startup is kitabisa.com. this startup creates a place where we can help others in an easier, safer and more efficient way. bookisa.com is a fintech startup that provides an internet-based platform for online fundraising. in the past, fundraising was generally done conventionally or took to the field, a website of kitabisa.com now creates a forum for us to be able to help others in an easier, safer and more efficient way. in accordance with the culture in our country, indonesia, which adheres to the philosophy of mutual cooperation, kitabisa.com is an online mutual cooperation platform that allows many people to raise funds with various humanitarian objectives, such as social activities, funding the creation of works, and in the future not close the possibility of donations in order to realize creative ideas in the digital age. but broadly speaking, kitabisa.com is more fundraising for social purposes. fundraising activities through kitabisa.com also pay attention to the security aspect, where all fundraising activities carried out have been ensured to have followed the verification procedures or processes to ensure their accuracy. besides that, kitabisa.com also tries to monitor every fundraising activity that takes place. fundraisers must also make financial use reports of funds collected so donors can clearly know where the money they have contributed, for example, is to help victims of natural disasters, medical assistance, various national issues, and other social or humanitarian activities. d. emoney e-money or electronic money, as the name suggests, is money that is packaged into the digital world, so that it can be said to be an electronic wallet. this money can generally be used to shop, pay bills, etc. through an application. one of those electronic wallets is doku. doku is an application that can be easily uploaded on smartphones. doku is equipped with a credit card link feature and electronic money or cash wallet, which we can use to shop both online and offline anytime and anywhere through the application. doku is an electronic wallet in the form of the dokuwallet.com application that can be easily uploaded on smartphones . doku is equipped with a credit card link feature http://creativecommons.org/licenses/by-nc-sa/4.0/ 146 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and electronic money or cash wallet , which can be used to shop both online and offline at various merchants that have joined with doku. the benefits of this service, we can use doku anytime and anywhere through the application. besides that, even if we don't have a credit card or bank account, we can still make transactions online. we can also pay household bills such as electricity, telephone, pam, installments and other payments through doku. uniquely, when you run out of cash or balance from your doku account, you can also request and receive money from fellow doku users, the way you can learn from the website. doku is also trusted as a service that applies security standards in accordance with applicable regulations. e. insurance the type of startup engaged in insurance is quite interesting. because usually insurance that we know so far is conventional insurance, where we set aside some money per month as a mandatory contribution to get benefits from such insurance in the future, this type of startup insurance does not all work that way. there is also an insurance startup that provides services to its users in the form of information about the nearest hospital, trusted doctor, hospital reference, and so on. hioscar.com is a startup type like this. this startup was built with the aim of providing a simple, intuitive, and proactive way to help its customers navigate their health system. this startup collaborates with providers or with world-class doctors and the best hospitals who want to work together to help manage the health of their members. hioscar.com was founded in 2012 in new york, texas and california, which provides a platform for your health care plan. how is this health insurance startup different from conventional insurance? hioscar.com was built with the aim of providing a simple, intuitive, and proactive way to help its customers navigate their health system. the high cost of hospitals in the united states encourages this startup to provide services to the community to get easy access to better and more efficient health care. in order to meet the needs of these customers, hioscar.com collaborates with providers or with world-class doctors and the best hospitals who want to work together to help manage the health of their members. oscar also strives to be a provider of accurate and consumer-friendly health services. oscar currently has 135,000 patients who prove that the startup is successful and will continue to grow in the future. through hioscar.com we can do routine maintenance at an affordable cost. in addition, we can also get health guidance from expert doctors, nurses, and treatment guides as well as possible, and find doctors who understand the health schedule that you want to go through for the whole body, while saving money. consulting or talking directly by phone for free with a great doctor is also not a taboo thing to do at hioscar.com. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 147 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia f. p2p lending peer to peer (p2p) lending is a startup that provides an online loan platform. capital affairs which are often considered the most vital part of opening a business, gave birth to the idea of many parties to set up this type of startup. thus, for people who need funds to open or expand their businesses, now they can use startup services that are engaged in p2p lending. uangteman.com is an example of a startup engaged in this field. this startup aims to meet the financial needs of the community by simply filling out a form on the uangteman.com website in about 5 minutes, and fulfilling its requirements. read: realizing your dream of opening a business or meeting your needs when finance is running low is now easier. especially for those of you who don't have an account at a bank or other financial institution. how to? the answer is the startup uangteman.com which provides a p2p lending platform or online loans for various purposes, both consumptive and productive. uangteman.com gives you the opportunity to be able to make loans online, for example to open a business. this startup aims to meet your financial needs in an easy way, and can be accessed anywhere and anytime. how to get a loan by simply filling out a form on the uangteman.com website in about 5 minutes, and fulfilling its requirements. the application filling process is up to the process of disbursing loan funds in just 2 working days. the establishment of p2p lending startups like uangteman.com makes people no longer need to worry to get the funds needed. not only to open a business but also when not yet payday, to pay for children's schooling, buy electronic goods, and others. even the nominal amount that we have to pay at the end of the loan period will be exactly the same as the original information when filling out the loan application. g. payment gateway the growth of e-commerce companies also triggers more startups to become a bridge between e-commerce and customers, especially in the case of payment systems. the service provided by startup for e-commerce is called the payment gateway service. payment gateways enable people to choose a variety of digital payment gateways (digital payment gateways) managed by a number of startups, thereby increasing e-commerce sales volume. payment gateway one of which is ipaymu. the proliferation of online businesses today has begun to change people's habits in shopping. no exception in the payment method. now, the public is offered a variety of digital-based payment methods (digital payment gateways) that are managed by a number of start-ups. one of them is ipaymu. ipaymu (pt inti prima mandiri utama) is a method of online payment or money transfer that serves to facilitate users in making transactions using internet services. not only for shopping online, users can make payments for certain products, subscription products, donations, sending money, and withdrawing http://creativecommons.org/licenses/by-nc-sa/4.0/ 148 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia money. founded in 2012, ipaymu continues to improve its services. at the end of 2013, for example, ipaymu launched a quick response code (qr code) based payment solution. with ipaymu solution, in addition to being able to make online transactions faster, it is hoped that a sense of security, comfort and trust will be created between buyers and sellers. the presence of the qr code-based mobile payment feature is inseparable from one issue related to online shopping, namely payment system security. although online stores already offer a method of payment with multiple layers of security, doubt still surrounds a number of people with its security. so, with this service, ipaymu account holders can enjoy payment transactions, check balances, and withdraw cash orders directly from the cell phone quickly, safely, and comfortably. this service can also be an alternative device for payment of debit and credit card transactions with electronic data capture (edc) owned by banks in large companies. in addition, ipaymu uses 256 bit ssl encryption and has been verified by thawte. but, users still have to maintain the confidentiality of the username and password and are advised to change the password regularly to prevent misuse by unauthorized parties. to realize the speed, convenience, and security of the service, this startup has integrated its payment system with national and international banking networks and developed a payment system that guarantees the security and convenience of online transactions via the internet or mobile phone. all merchants that have been certified by this startup will get a "safe shopping" certificate from ipaymu. to get the certificate logo, the merchant must first apply for merchant certification to ipaymu. in addition, this startup has also collaborated with more than 21 thousand atm bersama networks, link, prima, alto, visa, master card, and jcb. synergy is also carried out by ipaymu with pos indonesia. concretely, ipaymu users can withdraw money through the post office. not only that, now ipaymu also accepts transactions through paypal. there are three types of user accounts offered, namely personal, business, and enterprise. interestingly, there are no monthly fees charged to users. registration for all three types of users is also free. however, there are differences in withdrawing funds to a bank account. in the personal type, withdrawing funds to a bank account takes seven days. in the type of business, the time required is three days. funds withdrawals to bank accounts in real time can be enjoyed by enterprise users. in order to enjoy real time services, users must upgrade their membership to a business account with a minimum withdrawal of idr 10 million or enterprise with an unlimited number of withdrawals (terms and conditions apply). other services that can be enjoyed by all three types of user accounts include transfers between users, bulk transfers, and sending bills. each transaction is subject to a fee of 1% for users who use ewallet debits. the percentage of transaction costs is greater if the user uses a credit card. funds withdrawal or transfer through ewallet debit and post offices are also subject to fees that vary in amount. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 149 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia h. remittance remittance is a type of startup that specifically provides international money transfer services. many of these startup remittance establishments are in order to help people who don't have an account or access to banking. the existence of this type of startup is very helpful for migrant workers or anyone who might be a member of his family abroad, because of the easy delivery process and lower cost. in singapore, for example, stood a fintech startup named singx. fintech startup in singapore singx pte ltd has launched an online remittance platform that is faster, safer, more convenient and cheaper for consumers than they usually pay when sending money abroad. the launch of the online remittance is supported by american express bank and dbs which aims to help consumers, small and medium businesses in order to save shipping costs by up to 90%. singx also offers transaction advantages transparently. singx has launched the 2017 singapore-india money transfer service . since mid-january, which allows singapore-based consumers to send their funds to india. in the long run, singx plans to expand the money transfer platform from singapore to malaysia, hong kong, australia and other countries, where it also holds licenses. atul garg, singx ceo said that: "singx technology can serve consumers in smarter, faster, smoother and cheaper ways. they no longer need to queue at the bank or fill out forms. " singx's online remittance platform is quite simple and user-friendly . customers can register an account on the company's website. after document submission and faceto-face verification, his account will be approved and he can start using this service. the customer can send the amount of money he wants to send, to the singx bank account, and the recipient will receive the money in his country within a few hours after the funds are received from the customer. singx is a subsidiary of easy transfer pte ltd, licensed by the singapore monetary authority. singx also holds a remittance license in hong kong and australia. i. securities stocks, forex, mutual funds, etc., are investments that are already familiar to you. securities can be said as a type of startup that provides a platform for investing in stocks online . an example of a startup is bareksa.com. founded on february 17, 2013 bareksa.com is one of the first integrated securities startups in indonesia that provides a platform for buying and selling mutual funds online , providing data services, information, mutual fund investment tools, stocks, bonds, etc. . read: in line with the rapid development of financial technology (fintech) startups in indonesia, the capital market world has begun to look at these steps to make it easier for people to invest. bareksa.com is present as an indonesian online mutual fund marketplace. bareksa.com is under the auspices of pt bareksa investment portal, which was established on february 17, 2013, is one of the first integrated securities startup securities in indonesia that provides a platform for buying and selling online mutual funds , providing data services, information, investment fund tools, mutual funds , http://creativecommons.org/licenses/by-nc-sa/4.0/ 150 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia bonds and others. the creation of bareksa.com as an indonesian online mutual fund marketplace is expected to increase public participation in the capital market. where the startup was founded and manned by young people who are experienced in the fields of capital markets, information technology, and digital media. bareksa.com has a vision and mission to participate in developing the investment world among the people of indonesia by utilizing information technology and the internet. bareksa.com also has ambitions to participate in increasing the world investment exposure to the global market. even recently bareksa.com collaborated with bukalapak.com to sell mutual funds through an online platform under the name of bukareksa service. in bareksa.com, we can see a variety of comprehensive, in-depth, and updated market data, including mutual fund, stock and bond data. in order to facilitate investors and potential investors, bareksa.com develops and provides various digital tools and applications that are designed to facilitate, search, process, and analyze data relevant for investment decision making. latest and relevant news and information are also presented by bareksa.com, moreover, it also provides a platform for investors and potential investors to join, discuss, and share with the investor community online so that they can increase our knowledge of each other in capital market world. so with the lack of significant regulation, digital assets are able to have the chance of money laundering. ii. acts of money laundering using digital asset media a. cases of money laundering using digital assets media the center for reporting and analysis of financial transactions or ppatk found indications of the flow of funds in the crime of money laundering through digital currencies. acting director of ppatk transaction analysis, danang tri hartono, who gave information to business tempo in central jakarta tuesday, december 19, 2019, said the indication was successfully traced because transactions in digital currencies were still carried out by conventional banks. indications of money laundering are from corruption to terrorism. but he was not yet willing to specify which digital currency provider site he intended. ppatk will continue to try its best to explore this indication. the center for reporting and analysis of financial transactions (ppatk) considers the development of virtual money including bitcoin to be potentially used for money laundering and financing of terrorism. as a financial intelligence agency, ppatk has the attention and priority of tracking transactions that are allegedly related to money laundering and financing of terrorism by utilizing virtual money including bitcoin. ppatk formed a financial technology (fintech) and cybercrime desk , and increased cooperation with members of the national coordinating committee on prevention and eradication of money laundering (tppu), namely bank indonesia (bi), the http://creativecommons.org/licenses/by-nc-sa/4.0/ https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://bisnis.tempo.co/read/1043576/publik-nilai-kinerja-lembaga-anti-pencucian-uang-belum-memuaskan journal of law & legal reform volume 1(1) 2020 151 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia financial services authority (ojk), and ministry of trade (ministry of trade). ppatk also supports bi's policy as the payment system authority which is authorized to issue policies prohibiting the use of virtual money in processing payment transactions, as stipulated in article 34 of bank indonesia regulation (pbi) number 18/40 / pbi / 2016 concerning the implementation of payment transaction processing and article 8 paragraph (2) pbi number 19/12 / pbi / 2017 concerning the implementation of financial technology. the step of the central bank to exercise its authority in accordance with the law is considered as a progressive effort from the perspective of preventing money laundering and terrorism financing. although it can be traced, it needs a very hard effort to detect identity, source of funds and the purpose of the transaction using virtual money. therefore, ppatk as the authority in the field of prevention and eradication of the crime of money laundering and criminal acts of financing terrorism appealed to the public to be wiser in utilizing virtual money, including the use of bitcoin and the like as digital assets, especially in the context of investment ( speculative investment purposes ) . the presence of the internet brings convenience in carrying out daily activities, including money launderers. therefore, the term cyber-laundering then emerged , whose definition is simply the practice of money laundering carried out in cyberspace, namely through online transactions. in principle cyber-laundering is the same as the practice of conventional money laundering which consists of three stages: 1. placement, placing dirty money into the legal financial system. 2. layering, transferring or changing the form of money through complex transactions to obscure the origin of funds. 3. integration, returning money that has been washed so that it can be used safely. it's just that online transactions offer a wide range, speed, convenience, and low costs for money launderers. in any corner of the world, as long as there is internet access, money launderers can launch the action. according to laws on crypto-currency such as supervisory board commodity futures trading (bappebti) finally issued regulation no. 5 of 2019 on technical requirements implementation of the physical markets asset crypto (crypto asset) in stock futures in a statement chief bappebti, indrasari vishnu ward signed the regulation on 8 february 2019 to indotelko. that is regulated in regulation of the minister of trade no. 99 of 2018 concerning general policy for the implementation of crypto asset futures and regulation of the commodity futures trading regulatory agency number 2 of 2019 concerning operation of commodity physical markets on the futures exchange, it is necessary to regulate the technical provisions for the implementation of physical asset market crypto (crypto asset) on the futures exchange. in this rule, it is stated that crypto assets, hereinafter referred to as crypto assets, are intangible commodities in the form of digital assets, using cryptography, peer-to-peer networks, and distributed ledgers, to regulate the creation of new units, verify transactions, and secure transactions without interference from other parties. while crypto asset physical traders are parties who have obtained approval from the head of coftra to conduct crypto asset transactions both on their own http://creativecommons.org/licenses/by-nc-sa/4.0/ 152 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia behalf, and / or facilitate crypto asset customer transactions. crypto asset customers are parties who use the services of crypto asset traders to buy or sell crypto assets that are traded on the crypto asset physical market. crypto asset storage manager is a party that has obtained approval from the head of bappebti to manage crypto asset storage for the storage, maintenance, supervision and / or transfer of crypto assets. crypto asset proof is a document issued by the depository manager as proof of ownership of the stored crypto asset. wallet is a medium used to store crypto assets in the form of coins or tokens. tokens are a form of crypto assets that are made as derivative products from coins. coins are a form of crypto assets that have their own blockchain configuration and have characteristics like the crypto assets that first appeared, namely bitcoin. this regulation states that crypto assets can be traded if they meet the minimum requirements as follows: 1. based on distributed ledger technology 2. in the form of crypto utility (utility crypto) or crypto backed asset 3. market capitalization value (market cap) is ranked in the 500 (five hundred) large market capitalization of crypto assets for the utility asset crypto 4. entered in the largest crypto asset exchange transaction in the world 5. has economic benefits, such as taxation, growing the information industry and the competence of experts in the field of information (digital talent). 6. risk assessments have been carried out, including the risks of money laundering and financing of terrorism and the proliferation of weapons of mass destruction. crypto assets can only be traded if they have been determined by the head of coftra in the list of crypto assets that are traded on the physical market of crypto assets. business actors who have carried out crypto asset trading business activities before the enactment of this agency regulation must submit a request for registration to bappebti. registration of prospective crypto asset physical merchants must meet the following requirements: 1. has paid up capital of at least rp 100,000,000,000 (one hundred billion rupiah) and 2. maintain a final capital balance of at least rp. 80,000,000,000.00 (eighty billion rupiah). crypto asset trading can only be facilitated by the futures exchange which has obtained approval from the head of coftra. to be able to obtain approval to facilitate crypto asset trading in addition to meeting the requirements as stipulated in the bappebti regulation governing the commodity physical market operation on the futures exchange, the futures exchange must meet the following requirements: 1. has paid up capital of at least rp1,500,000,000,000.00 (one trillion five hundred billion rupiah) 2. maintain a final capital balance of at least rp1,200,000,000,000.00 (one trillion two hundred billion rupiahs) 3. has at least 3 employees who are certified information systems security professional (cissp). whereas crypto asset physical merchants must meet the following requirements: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 153 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. has a paid up capital of at least rp1,000,000,000,000.00 (one trillion rupiah) 2. maintain a final capital balance of at least rp. 800,000,000,000.00 (eight hundred billion rupiah) 3. has a minimum organizational structure information technology division, audit division, legal division, crypto asset customer complaints division, client support division, accounting and finance division; 4. have an online trading system and / or means used to facilitate the operation of the crypto asset physical market connected to the futures exchange and the futures clearing house 5. have a minimum standard operating procedure (sop) governing the marketing and acceptance of crypto asset customers, conducting transactions, controlling and supervising internally, settling crypto asset customers disputes and implementing anti-money laundering programs and preventing terrorism funding and proliferation of weapons of mass destruction and 6. has at least 1 employee who is certified information system security professional (cissp). 7. crypto asset physical merchants must save at least 70% of the total the crypto assets it manages, offline or cold storage. offline storage or cold storage can be done by: 1. cooperate with the manager of the crypto asset depository in the context of using token or wallet storage services having their own token or wallet storage system or mechanism. 2. the remaining crypto assets that are stored must be kept safe by the crypto asset physical traders taking into account risk management. based on the financial action task force (fatf) report on virtual currencies key definitions and potential aml/cft risks bitcoin is one of the new payment methods ( npm) which includes the use of internet-based payment services ( internet-based payment services ) is a digital representation of value that can be digitally traded and functions as: (1) a medium of exchange; and / or (2) a unit of account; and / or (3) a store of value, but does not have a legal tender status (ie, when tendered to a creditor, is a valid and legal offer of payment) in any jurisdiction. it is neither issued nor guaranteed by any jurisdiction, and fulfills the above functions only by agreement within the community of users. virtual currency is distinguished from fiat currency. it is also distinct from e-money, which is a digital representation of fiat currency used to electronically transfer value denominated in fiat currency. whereas based on bank indonesia regulation number 18/40/pbi/2016 concerning the implementation of payment transaction processing, the understanding of virtual currency is: digital money issued by parties other than monetary authorities obtained by means of mining , purchasing, or transfer of rewards ( rewards ) including bitcoin , blackcoin, dash, dogecoin, litecoin, namecoin, nxt, peercoin, primecoin, ripple, and ven. not included in the definition of virtual currency is electronic money. in addition, bitcoin uses blockchain technology that provides solutions to problems that exist in conducting transactions, which are not found in the financial http://creativecommons.org/licenses/by-nc-sa/4.0/ 154 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia industry. blockchain technology makes all financial transactions carried out in a ledger (digital ledger) digitally and not managed by one particular organization or party. this ledger record is distributed publicly and is managed by thousands of computers in the world at the same time, so everyone can know that a transaction has taken place and no one can oppose that fact. these things cause bitcoin to be the most popular. allen & overy, virtual currencies mining the possibilities, 2015. bitcoin was only developed in 2009 by someone under the pseudonym satoshi nakamoto , so that the true identity of the founder of bitcoin has never been known. bitcoin is a virtual web currency and is an interesting economic experiment where many people now use it to buy real items . simply put, bitcoin is cash on the internet, which does not require banks, credit cards , fees, or fears of identity theft as is rife in the online world . some people call it cash for the internet . bitcoin is the latest digital peer-to-peer (p2p) currency that can be used to replace cash in online trading transactions (bains, 2015). unlike other online currencies that are related to banks and use payment systems such as paypal, bitcoin is directly distributed between users without the need for intermediaries. bitcoin combines cryptography and peer-to-peer architecture to avoid oversight of financial authorities. thus, transactions using bitcoin do not leave a trail because there is no need to pass intermediary institutions such as banks. bitcoin can be transferred to any country in the world if connected to the internet. bitcoin will be saved into a bitcoin wallet. the wallet application must be installed on both parties' devices with personal computers or laptops , tablets or smartphones . after installing the wallet application, the user will get a bitcoin address. at present, the use of bitcoin is free to operate and has been used by many countries, both as a commodity and to be equalized as a currency in conducting transactions. however, bitcoin is often misused by criminals to carry out criminal acts (irwin, 2014). b. bitcoin and money laundering in indonesia in indonesia, bitcoin is widely used by business people in investing and even because it is pseudonym (does not use real identity) and decentralized (there is no financial authority or third party who oversees and controls transactions) so that it is often used by criminals in committing criminal acts. like, money laundering (a process in which the proceeds of crime are then transformed as if it were net money or bought assets). terrorism funding (providing funds for terrorist activities) , and other criminal acts that use the bitcoin media in transactions. this is a problem for a country in eradicating money laundering and financing of terrorism. indeed there are no international rules or standards that apply globally related to virtual currencies, especially bitcoin. however, some countries are currently trying to regulate virtual currencies and there are also other countries, such as the united states, china, and japan, which have regulated them. based on the recommendations of the financial action task force (fatf) no. 15 it is regulated that each country is required to make comprehensive rules regarding the new payment method (npm) http://creativecommons.org/licenses/by-nc-sa/4.0/ https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://bitcoin.org/bitcoin.pdf journal of law & legal reform volume 1(1) 2020 155 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia including internet-based payment services (fatf 2015) and each country is required to apply a risk assessment before establishing a related business npm technology (fatf 2012). the need to look at policies or rules made by other countries and fatf recommendations is to find out what and how to regulate virtual currency in indonesia. regulations in force in indonesia related to virtual currencies are only prohibited, which refers to bank indonesia regulation number 18/40 / pbi / 2016 concerning the implementation of payment transaction processing. article 34 letter a of bank indonesia regulation states that payment system service providers (pjsps) are prohibited from processing payment transactions using virtual currency. in other words, bank indonesia (bi) does not prohibit the use of virtual currency, but prohibits pjsps that have obtained licenses from bi to process payment transactions using virtual currency . the virtual currency, specifically bitcoin, is not a legal payment instrument in indonesia as regulated in act number 7 of 2011 concerning currency and bi is not responsible for risks arising from the use of virtual currency by the public. this regulation does not regulate the risk of using virtual currency in criminal financing of terrorism and other criminal acts that use bitcoin as a transaction medium so that it becomes a loophole for terrorists and other perpetrators to commit their crimes. in addition, bank indonesia regulation number 19/12 / pbi / 2017 concerning financial technology implementation has also been issued. in article 8 paragraph (2) of this regulation it is stated that, "in addition to the obligations referred to in paragraph (1), providers of financial technology are prohibited from carrying out payment system activities using virtual currenc ." prohibition of conducting payment system activities using this virtual currency is due to virtual currency is not a legal payment instrument in indonesia there is already a bitcoin exchange in indonesia which is an intermediary between buyers and sellers of bitcoin that can make online transactions through the indodax.com site (previously: bitcoin.co.id) and allows someone to withdraw rupiah from their bitcoin wallet account . bitcoin exchange in indonesia provides bitcoin exchange services in rupiah, and vice versa, although there are no rules that regulate it so that it becomes an attraction for terrorists and other perpetrators in funding terrorism and other criminal acts. in addition, its pseudonym and borderless transaction are of particular interest because terrorists can transfer bitcoin across countries easily and quickly without being able to trace their identity. seeing this fact, if it is not a concern of the government in terms of regulations, it will be difficult to eradicate funding of terrorism and other crimes because they freely use the internet network used by the bitcoin exchange and bitcoin trading websites to commit crimes and there is no obligation for bitcoinexchange to report any suspicious transactions and there is no obligation to implement know your customer (kyc). so, as long as the indonesian government does not recognize the existence of bitcoin, the application of kyc has no meaning as long as it has not been regulated by the authorities in indonesia. http://creativecommons.org/licenses/by-nc-sa/4.0/ 156 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia there have been a number of cases that have occurred in indonesia related to the use of bitcoin as a tool for committing crimes, namely narcotics and terrorism. the use of bitcoin to launch criminal financing for terrorism has been a concern for a long time by law enforcers around the world. moreover, since the isis (islamic state of iraq and syria) uprising in syria many bitcoin transactions are used by isis groups to fund acts of terrorism . bitcoin is also widely used by terrorists as a transfer media to fund terrorist activities in indonesia and to fund foreign terrorists who want to join isis. examples of terrorism cases related to bitcoin that have been decided by the tangerang district court in 2016 are in the name of leopard wisnu kumala, a suspected bomber in mal alam sutera, who blackmailed mall managers with money requests in the form of bitcoin. he sent an e-mail to the mall manager to ask for money in the amount of rp300 million in the form of bitcoin. because the mall manager only sent a small portion of bitcoin to the suspect's account then the suspect blew up mal alam sutera. with such a mode, it is feared that it will become a trend of further threats from other terrorists and then the results of the transfer of bitcoin to terrorists will be used to fund acts of terrorism in indonesia, such as carrying out bombings in indonesian territory or other terrorist activities. this is a mechanism for funding terrorism through self-funded fundraising . recently the minister of trade issued regulation of the minister of trade no. 99 of 2018 concerning general policy for the implementation of crypto asset . with the existence of these rules, then bitcoin and other virtual currencies are commodities worth trading as subjects of indonesian futures contracts on the futures exchange. however, is this regulation sufficient to overcome the current situation, where criminals use bitcoin and other virtual currencies to carry out their crimes? the absence of legislation in force in indonesia related to virtual currencies such as bitcoin will provide a loophole for perpetrators of crime in committing crimes. the prohibition on using virtual currency in indonesia only causes problems and does not support efforts to prevent and eradicate criminal acts such as terrorism and narcotics. in addition, the prohibition of bitcoin in indonesia has caused economic losses because domestic investors will buy digital assets abroad that have legalized bitcoin transactions. finally, many domestic assets flow to other countries. technology continues to develop and cannot be avoided. when referring to the principle of neutrality of e-commerce technology that applies globally, technology can be used for useful purposes as well as for committing criminal acts. that is, the technology itself is innocent, the guilty are individuals who use the technology for illegal activities. thus, the government needs attention in terms of virtual currency regulation so that the government can monitor as well as obtain digital money transaction data which will later be used to prevent and minimize acts of terrorism and narcotics as well as other financial related crimes. in addition, the government can also prepare to face the development of financial technology in the future. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://www.rt.com/usa/227703-bitcoin-isis-us-fundraising/ https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://www.rt.com/usa/227703-bitcoin-isis-us-fundraising/ https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://news.detik.com/berita/3057156/ini-alasan-leopard-lone-wolf-bomber-mal-alam-sutera-minta-bitcoin https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://news.detik.com/berita/3057156/ini-alasan-leopard-lone-wolf-bomber-mal-alam-sutera-minta-bitcoin journal of law & legal reform volume 1(1) 2020 157 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia iii. opportunities for digital asset-based money laundering crime if previously the money laundering mode was developed through splitting funds into a number of bank accounts, now as various new business models grow such as peer to peer lending, online loans, buying and selling online investments, online insurance policies, the mode of smuggling illicit funds originating from predicate crime has great potential to target the financial technology (fintech) sector, especially fintech which is not registered with state authority (illegal fintech). anticipating various modes of money laundering, the financial action task force (fatf) has issued 40 recommendations related to international standards in the area of money laundering and financing of terrorism adopted by the majority of world jurisdictions through the supervision of fatfstyle regional bodies (fsrbs) . fsrbs for countries in the asia pacific region are handled by the asia pacific group on money laundering (apg). apg is tasked with evaluating compliance with the fulfillment of 40 fatf recommendations for members, both in terms of technical compliance assessment and asset effectiveness through mutual evaluation reviews (mer) of members every 4 years. indonesia itself has been a member of the apg since 1999. in the 2017-2018 range, indonesia has shown quite good results with improved ratings obtained for 2 (two) recommendations, namely recommendation 4 regarding the legal framework for confiscation and seizure of assets and recommendation 8 regarding the legal framework for non-profit organizations, and 2 (two) immediate outcome (io) , namely io2 related to the effectiveness of international cooperation and io8 related to the effectiveness of confiscation and seizure of assets. to note, the legal basis for implementing anti-money laundering and preventing terrorism financing (ppt) in indonesia is contained in several regulations such as law no.8 year 2010 concerning prevention and eradication of money laundering (tppu) act , law no.9 year 2013 concerning prevention and eradication of terrorism funding crime (tppt), pp no.43 of 2015 concerning reporting parties in pptppu and pojk no. 12 of 2017 concerning the implementation of the ppt apu program in the fss. specifically fintech p2p lending, its specific arrangement in relation to anti money laundering regulations refers to pojk no. 12 of 2017. it's just that, for reasons of time adjustment, the pojk only came into force in the coming year 2021. referring to article 1 a quo pojk , the fintech industry which is an information technology lending and borrowing service provider is categorized as a financial services provider (pjk) in the non-bank financial industry sector. consequently, fintech (pjk) must identify, assess and understand the risks of tppu and / or tppt related to customers, countries or geographical areas, products, services, transactions or distribution networks. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://www.hukumonline.com/pusatdata/detail/lt4ce0f32e34bd9/node/38/undangundang-nomor-8-tahun-2010 https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://www.hukumonline.com/pusatdata/detail/lt51667443e5d3d/nprt/lt52283d8baca11/undang-undang-nomor-9-tahun-2013 https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://www.hukumonline.com/pusatdata/detail/lt51667443e5d3d/nprt/lt52283d8baca11/undang-undang-nomor-9-tahun-2013 https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://www.hukumonline.com/pusatdata/detail/lt55961edc203e9/node/901/peraturan-pemerintah-nomor-43-tahun-2015 https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://www.hukumonline.com/pusatdata/detail/lt58f47f98557d3/node/534/peraturan-otoritas-jasa-keuangan-nomor-12-pojk01-2017-tahun-2017 https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://www.hukumonline.com/pusatdata/detail/lt58f47f98557d3/node/534/peraturan-otoritas-jasa-keuangan-nomor-12-pojk01-2017-tahun-2017 158 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in addition, the fintech industry will also be required to document tppu / tppt risk assessments; consider all relevant risk factors before determining the overall level of risk, as well as the level and type of risk mitigation sufficient to be applied; updating risk assessments regularly; and has an adequate mechanism related to providing risk assessment information to the authorized agencies. a. cdd or edd obligations analyst senior executive in functional quality control and monitoring supervision sector-group handling apu ppt financial services authority (fsa), dewi fadjarsarie handajani, explained that there are several divisions obligation execution due diligence customer by the bank fintech, the cdd ( customer due diligence) in a simple and edd ( enhance due diligence ). simple cdd, must be fintech pjk for low-risk customers tppu / tppt, while edd must be done for high-risk customers / customers. the cdd and edd processes are included in the apu ppt implementation scheme as stipulated in pojk no. 12 of 2017 concerning the implementation of the ppt apu program in the fss. it is important to note, dewi said that the implementation of the ppt apu obligation specifically for p2p lending fintech will only take effect in the coming year 2021. the cdd process includes identification, verification and monitoring by the pjk to ensure the transaction is in accordance with the profile, characteristics and / or transaction patterns of prospective customers, customers or wic. whereas edd is a more in-depth cdd action undertaken by pjks against high-risk prospective customers/clients/wic such as having background, identity and history that are considered high risk of conducting tppu and / or pep, including political expose person (pep). for example, to conduct edd, pjk can create a customer profile. from that profile, pjk must know the funding portfolio of both lenders and debtors. not just the background / identity of lenders and debtors, pjk also needs to make a range of transactions. for ranges below rp. 50 million, for example, they are classified as low risk transactions so there is no need to get extra supervision. if transactions in the range of rp 50 million to rp 500 million are categorized as medium risk, while high risk that requires extra strict and important supervision by edd is in the range of transactions above rp 500 million. furthermore, the risk also depends on the nominal, then monitoring is done afterwards. there it can be seen that what is called the risk base approach is not necessarily beaten all flat. it can be seen in accordance with the profile. in addition to the nominal transaction value , the high risk aml category can also be seen from the size of the company, the form of the company (foundation/cooperative/limited company), customer profile, regional location, the field of corporate services to the beneficial owner (actual beneficial owner / bo) of the corporation. a clear example, foundation customers are considered to be at higher risk of being exposed to tppu/tppt if affiliated with ngos engaged in activities related to radicalism, otherwise if the foundation is engaged in education the risk is moderate. another example, large companies with more employees, subsidiaries http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 159 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia spread across several regions and have a more sophisticated transaction system can also be categorized as high risk aml . each ojk supervisor, will make an individual risk assessment of all pjks and do a mapping related to the level of transaction risk safety in all of these lines. when the transaction category is in the form of a high risk aml , ojk will conduct ppt apu checks every year. for aml the middle risk category , the inspection is conducted every 2 years, while for low risk in the range of 3 years. with regard to foreign peps , in addition to implementing cdd, the pjk fintech also needs to conduct edd periodically, at least by analyzing information about customers or beneficial owners , sources of funds and sources of wealth. even if chd fintech business relations or transactions originating from high-risk countries published by the fatf, it is important take preventive measures (countermeasures ). there, pjk is not only required to do edd, but also must ask for confirmation and clarification from the competent authority. b. not required to report tkm the obligation to report suspicious financial transactions (tkm) by fintech p2p lending to the financial intelligence unit (fiu), namely ppatk, has yet to be regulated. supposedly, said dewi, pjk fintech p2p was also required to report to ppatk, only then was ppatk and law enforcement officers working and ascertained whether in a tkm the tppu and tppt practices were actually carried out. the importance of reporting tkm to ppatk, he said because ojk only functions as a supervisor who ensures that pjk fintech has implemented apu ppt properly. when referring to the definition of pjk in article 1 paragraph (4) perka ppatk no. per-09 / 1.02.2 / ppatk / 09/12 concerning procedures for submitting suspicious financial transaction reports and cash financial transaction reports for financial service providers customers, indeed p2p lending is not included in the pjk category which is required to report tkm based on the a quo ppatk perka , only the fintech payment gateway entity is regulated . although there is no p2p obligation as a reporter, there is still no obstacle for the public to report to ppatk. when confirmed, the head of ppatk ki agus ahmad badaruddin said his party was still in the process of reviewing the reporting obligations of tkm by fintech p2p lending to ppatk. "there is no regulation about tkm to patpk. c. illegal fintech and money laundering to note, indonesia through the financial services authority (fsa) has now stopped the operation of 803 illegal fintech entities. so far, dewi also mentioned that sanctions obtained by illegal fintechs were indeed limited to stopping company activities such as blocking in collaboration with the ministry of information and communication (communication and information). while the united states (us) did not even hesitate to take legal action against fintech entities that do not comply with http://creativecommons.org/licenses/by-nc-sa/4.0/ 160 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia federal anti-money laundering (aml) provisions. the action was taken through the us financial audit authority, the financial crimes enforcement network (fincen) which is under the ministry of finance. the first fintech said to have to deal with us aml law enforcement in the form of fines worth us $ 700 thousand, namely ripple labs. ripple labs at that time carried out its activities without being legally registered . so firmly the us law provides sanctions against illegal fintech in line with the high awareness of the us authorities about the dangers of the circulation of funds from money laundering in the fintech industry . if registered, it is clear that it will make it easier for fincen to detect sources and inflows of funds in and out, so that the money supply chain from tppu can be easily broken. tppu expert, yenti ganarsih, said that any industry based on digital technology would indeed be very vulnerable to being a means of money laundering if the government control function did not go well. in the politics of anti-money laundering law, all business activities that can raise funds and enter capital must be applied to reporting obligations. if technically the transfer of funds is done through a bank, the bank should automatically be obliged to report the transaction to ppatk if the transaction value is above rp 500 million. it is a problem, he said, if p2p lending does not cooperate with the bank in conducting transactions, so ppatk will have difficulty sniffing out indications of aml violations because it does not get reports from the bank. conversely, the origins of large amounts of transactions thought to originate from proceeds of crime can be easily tracked by the formal system of government through reporting obligations. finally, through its data, authorities can track the source of the flow of funds more quickly and efficiently. the chairperson of the ojk investment alert task force, tongam lumban tobing, reminded that all p2p lending fintechs were required to register their company in the ojk in accordance with pojk no. 77 / pojk.01 / 2016 concerning information technology-based money lending and borrowing services. the reason for the compulsory registration is called tongam, which cannot be separated from fears of the tearing of tppu / tppt practices in the fintech industry. if it is not registered with the ojk, he said, financial statements related to fintech funding sources will be difficult to trace. the task force's steps to anticipate this, the task force announced to the public that the community does not participate in illegal fintech activities as well as blocking related to illegal fintech sites or applications through the ministry of communication and information. after that, tongam said that his party would submit information related to the tppu's indication to law enforcement. regarding sanctions, there are no specific criminal provisions governing the matter of fintech. so that when a crime occurs, he explains that the sanctions are still included in the category of general criminal offenses that are snared using the criminal code, be it fraud fraud. if the billing is disturbing then it can be included in the snare of unpleasant acts or even can be sanctioned using the provisions of the ite law. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 161 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia bank indonesia (bi) prohibits the use of virtual currencies like bitcoin as a means of payment. in its policy, other than rupiah, there is no other legal currency as a means of payment. responding to this, the ceo of bitcoin indonesia, oscar darmawan said that his company strongly supports bi's policies. oscar also said that his company agreed that transactions in indonesia must use rupiah. quoted from indoprimer that the last few years, we often hear about cryptocurrency or known as digital currency. cryptocurrency is a technology making digital currencies that uses cryptography for security that makes it, so it cannot be falsified. over time, this technology is increasingly popular and continues to be developed by various companies and teams of experts in various parts of the world to be able to cause a 'hot fund' raising trend where a start -up generates millions of dollars in capital by issuing virtual tokens to investors in exchange for money. the company offers digital tokens (icos) that can be used to pay for goods and services on their platforms or saved as investments using blockchain technology, create whitepapers as platforms, software or products they want to build, then people buy these tokens using crypto received broadly (like bitcoin) or fiat currencies for example usd. in cyrptocurrency, the price value is determined by the 'buy and sell' power of the users of this technology, meaning that we can buy at low prices and sell at high prices or buy when there is an opportunity to rise and sell when prices are higher than the purchase price. but because the basic value of cryptocurrency is purely based on the strength of 'buy and sell' and the absence of supervision from the relevant financial departments and clear legal rules, it is not uncommon for cryptocurrency to have a value of more than 20% down in a trading day that is actually used to make a profit. according to smith + crown, a blockchain research and consultancy group, said that start-ups have raised more than one billion dollars this year in coin sales and in recent months, only four crypto projects have raised more than $ 660 million combined. since the birth of bitcoin digital currency and blockchain technology in 2008, the two jargons have been quite cont roversial, due to their pseudonym, decentralized and encrypted nature, making it difficult to track every transaction made, and the individuals behind it. in addition, cryptocurrency uses peer-to-peer technology so that the process of sending money is fast er, cheaper, more extensive and safer than using ordinary banking services, especially utilizing western union services. theoretically, anyone who has an internet connection and a digital wallet can be part of a coin sales event. but the ease with which this technology is triggered concerns for many because it can be used as a money laundering facility or to fund terrorist activities and engage in other fraudulent behavior especially in countries where corruption is rampant. on august 1, the singapore monetary authority (mas) as the financial regulatory body and singapore's central bank said in a newspaper that the ico "is vulnerable to the risk of money laundering and terrorist risk because it is anonymous in conducting transactions, and concerns the ease of large and fast amounts of money. go up in no time. meanwhile, a legal entity in the united states, the securities and exchange commission (sec) provides guidance on its website so that investors can consider before participating in the sale of digital tokens. the sec http://creativecommons.org/licenses/by-nc-sa/4.0/ https://translate.google.com/translate?hl=id&prev=_t&sl=id&tl=en&u=https://bisnis.tempo.co/read/1050713/bi-larang-mata-uang-virtual-sejenis-bitcoin-untuk-transaksi 162 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia asks potential buyers to look carefully and identify investment schemes that are not true. although terrorism financing is not uncommon in asia pacific compared to the middle east or north africa, experts told cnbc that crypto -essence money laundering was a major concern among the authorities. to avoid fraud or money laundering, fundraising companies are asked to do customer due diligence, certify their identity and track their source of wealth and require companies to arrange their products, a process that is sometimes expensive according to phillipps, who previously worked with australian regulators securities and investments commission. phillipps said ico and cryptocurrency were only new avenues for old age problems: "people are endlessly looking for ways to avoid going through all the efforts of regulation, compliance and so on." responding to concerns about cryptocurrency opportunities as a money laundering container, this blockchain-based system is actually considered to be uncomfortable for 'unscrupulous individuals' who want to try to misuse because every digital token transaction is recorded permanently in a digital ledger that can be seen publicly, allowing investigators to track the person who has done a transaction and what matters related to their activities regarding the cooperation. to the cnbc, the experts also added that with the inclusion of ico on a large scale, it means that there are now hundreds of obstacles that can be imitated by criminals. at the same time, there have been developments in exchanges that may have tended not to cooperate with the authorities. it has already recorded more than 500 cryptocurrency created based on coinmarketcap.com. even google ventures also invests in one of these cryptocurrency technologies. some cryptocurrency has a variety of different concepts and some have concepts that mimic other coins. experts say the process on the ground makes ico a perfect vehicle for money laundering, for example when innocent bob buys a digital token in the hope h e can sell his shop later at a higher price on the main exchange (which spends money to record customer information to match regulatory regulations), or he can switch to fly -bynight exchanges where prices are better. prices are better on the second exchange because of money laundering candidates, dirty harry is willing to pay a premium to launder their funds. dirty harry, who wanted to make his dirty money look clean, bought a digital token from bob. then bob makes more money than he has on a more regular exchange, and harry now has digital tokens that are not related to criminal companies. harry can then go to any exchange and sell his digital tokens for digital currencies or general fiat according to the prevailing currency in the country. alternatively, criminals could have bought the ico themselves, hoping that novice technology would not have strong know-the-customer practices. in order to track and prevent and protect investors from fraud, many argue that emergency crypto requires some form of regulation especially digital coins which sometimes act like securities but are not subject to strict main regulations. seriously addressing the issue, late last month, the securities and exchange commission released an investigative report that said companies planning to use ledgers or buffering devices that could be used to raise capital should take appropriate steps to comply with us federal securities laws union. the singapore mas also clarified this week that it http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 163 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia would regulate the sale of digital tokens in t he city-state if the product is regulated in singapore's securities and futures regulations. after regulatory oversight of the ico, several sources told cnbc that the benefits would be seen cleanly. most agree that having the right rules can protect investors in the same way that is maintained in the securities market. having the right regulations is expected to gain more traction, especially among retail investors. this can be seen from the data tokens released by smith + crown, which show that in the first half of 2017, there were more sales than in 2016, with the number of fundraising increasing from month to month since march. data tokens are another site that tracks future token sales, listing dozens of icos in the coming months. kapron explained that, at present, to invest in ico, people need to have some technical understanding and interest in this matter. this is needed to buy ethereum or bitcoin and then invest in coin sales. while the current environment is limited to a subset of investors, he said regulations would be very useful when investing in ico so that it would be easier to invest and therefore more people would be involved without having to realize the risks or challenges behind several platforms. however, there are also many general criticisms made on the sale of tokens because it is believed that many beginners 'play' but do not have the experience or a decent business model. in other words, there is a possibility that bigger businesses fail and investors cannot return their money. in contrast, in a venture fundraising round, investors consider the viability of a start -up business plan as an executive strategy before supporting it. vc-supported founders are obliged to answer their investors. "tokens are not dilutive, (usually) do not have voting rights, and have very few rights, if any, attached to them. they are not in debt, who enjoy mandatory payments in the event of failure, and also their equity. give the privileges of some shareholders ordinary vis-a-vis preferred, "justin hall, principal at the early stage golden gate ventures venture capital, told cnbc. on the other hand, critics would call back investor protection to dispute the rules, he said, adding it might be difficult to reconcile the two parties. moreover, hall said, given how new the technology was, many regulators still "did not fully understand this developing industry." implementing unplanned policies can be more dangerous than good, he said. to be sure, the sec and mas have learned a lot of crypto-crypto. mas issued a notice in early march 2014 saying that virtual currencies are not regulated, but that virtual currency intermediaries will be regulated for the risk of money laundering and the risk of terrorism. " that all, of course, raises the question of why someone is inter ested in buying an ico that has been overlooked. for most people, the answer is simple: they think there is money to be made. tee, a veteran of the banking industry, explained to cnbc that a digital token is "a representation of contractual rights in an ea sily transferable form of media. if the rights associated with tokens fall into the latter category, most jurisdictions will consider it security, "regardless of whether the rights are digital tokens, written contracts or formal security such as stock or d ebt instruments," tee said. http://creativecommons.org/licenses/by-nc-sa/4.0/ 164 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia at present, to overcome regulatory oversight, many icos prevent residents of the united states and singapore from participating in the sale of their tokens either by blocking internet protocol addresses from these locations or by relying on self-declarations from participants. but experts told cnbc that people could easily overcome it by using virtual private network connections to cover their locations or simply by asking third parties in different places to participate on the ir behalf. iv. penal policy in the handling of digital assetbased money laundering crime a. current criminal law policy towards countering money laundering crime the eradication of money laundering in indonesia has begun with law no. 15 of 2002 concerning criminal acts of money laundering. the law has stated that the act of money laundering is a criminal offense. the new thing about this law is the birth of a new institution called the financial transaction reports and analysis center (ppatk). travel law no. 15 of 2002 a year later amended by law no. 25 of 2003 concerning prevention and eradication of money laundering (pptppu). lapse of 8 years later, the parliament passed law no. 8 of 2010 concerning prevention and eradication of money laundering (pptppu), money laundering cannot be separated from the formulation of criminal law. criminal law formulation policy is defined as an effort to make and formulate a good criminal law. this understanding can also be seen in the definition put forward by marc ancel which states that penal policy as a science as well as art which aims to enable positive legal regulations to be better formulated and to provide guidance not only to the legislators, but also to the courts that apply the law and also to the organizers or executors of court decisions (nawawi arief, 2008). the philosopher aristotle states that "a supremacy of law will be far better than compared to the rule of rampant tyranny". this translation reads, "it is more proper that law should govern than any of the citizens: upon the same principle, if it is advantageous to place the supreme power in some particular persons, they should be appointed to be only guardians, and the servants of the laws"(aristotle, politics). that in the legislative legislation of the government of indonesia together with the house of representatives in the context of handling money laundering crimes has formed several legal products to deal with money laundering issues including law number 15 of 2002 which has been amended by law number 25 of 2003 concerning eradication of the criminal act of laundering money, and last amended by act no. 8 of 2010. crime is a portrait of the concrete reality of the development of the life of society, directly or indirectly, or being sued condition of society, that in social life there is undoubtedly potential vulnerability gap child birth deviant individuals. in society there are struggles of interests that are not always filled with the right path, meaning that there are ways that are not right and violate the law carried out by a person or group of people to fulfill their interests (wahid & labib, 2005). the threat of transnational crime, transnational, has become one of the world's main concerns. region southeast asia or east asia, which includes indonesia as http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 165 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia a whole relatively vulnerable to the threat of transnational crime, such as money laundering activities of money laundering almost always involve banks because of the globalization of the banking system through the payment system, especially that of electronic equipment (electronic funds transfer), proceeds crimes which in general will flow in large numbers or even move beyond national borders by utilizing bank secrecy factors that are generally upheld by banks. likewise, not only the legal aspects related to this crime, but also other non-legal aspects such as economic, political, and social culture. various crimes both committed by individuals and companies within national borders or across national borders are increasing. the aforementioned crimes are in the form of liquor trading, gambling, arms trafficking, corruption, and smuggling. in order not to be easily traced by law enforcers regarding the origin of the crime funds, the perpetrators do not directly use the funds referred to but are attempted to disguise / hide the origin of these funds in the traditional way, for example through casinos, horse racing or entering these funds into the financial system or banking. efforts to conceal or disguise the origin of funds obtained from these criminal acts are known as money laundering. at present the perpetrators of crimes have many choices about where and how they want the proceeds of crime to be seen as "clean" and "lawful". the development of international banking technology that has given way to the growth of local / regional banking networks into a global financial institution has provided opportunities for money laundering actors to utilize the service network which results in money from illegal transactions becoming legal in the business world on international financial markets. at present money laundering activities have crossed the jurisdiction's limits offering a high level of confidentiality or using a variety of financial mechanisms where money can 'move' through banks, money transmitters , business activities and can even be sent abroad so that it becomes clean laundered money . the crime of money laundering or money laundering is increasingly getting special attention from various groups ranging from the community, academics and state administrators who are not only on a national scale, but also regional and globalized through cooperation between countries. this movement was triggered by the fact that nowadays money laundering crimes are rife, while most countries have not established a legal system to combat or define them as crimes that must be eradicated. such a large negative impact on a country's economy, so that countries in the world and international organizations feel moved and motivated to draw more serious attention to the prevention and eradication of money laundering crimes, so that the creation of law enforcement. law enforcement in eradicating money laundering in indonesia is still not optimal. as the main problem in the matter of law enforcement and awareness, it can be pointed out that there is a lack of a harmonious relationship between laws and regulations, law enforcement behavior, law enforcement facilities, and public expectations. as the development of perpetrators and types of crimes of money laundering is not balanced with the human resources of the law enforcers, more and more money laundering cases cannot be resolved and dealt with quickly and appropriately because of the lack of quality human resources from the law enforcers themselves. so that if there is a new mode and type of crime for which there is no way http://creativecommons.org/licenses/by-nc-sa/4.0/ 166 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia to deal with it and the articles in the criminal code that ensnare many law enforcers are inadequate in imposing criminal acts which should be alleged to ensnare them, so that it is necessary to improve the quality of law enforcers themselves to realize law enforcement officials professional. improving the quality of law enforcement officers in the framework of the realization of professional law enforcement officers, realized through efforts: 1. provide opportunities for law enforcement officials to attend education and vocational training; 2. organize education and training among fellow investigators in certain cases in order to obtain a common perception in handling criminal cases; 3. collaboration with tertiary institutions to provide education and training in order to increase the knowledge of the investigating apparatus related to the implementation of the task; 4. develop a transparent and professional human resource management system; 5. establish guidelines and procedures for coaching members; and 6. supervise the performance of law enforcement officers fairly. improving coordination between law enforcement institutions in order to create synergistic cross-agency relations through: 1. mapping the problems that arise related to cross-agency coordination; 2. increasing the formation of cooperation institutions between related agencies; 3. form a supervisory institution in charge of overseeing the implementation of the tasks of each institution; 4. integrating and synchronizing community services so that service mechanisms can run simply, quickly and without overlapping; 5. each agency meets periodically both formally and informally to discuss various problems that arise related to coordination problems as well as finding solutions; 6. increasing discussion forums and meetings between law enforcement officials aimed at obtaining common ground in carrying out investigative tasks; 7. prepare mou which contains cooperation and coordination across agencies related to law enforcement. seek to establish and / or improve legislation related to law enforcement in order to realize legal certainty. in terms of state financial interests, the ppatk is given authority by law no. 8 of 2010 concerning the prevention and eradication of criminal acts of money laundering, to make a temporary stop or delay in transactions containing suspicious transactions. the suspension or postponement is intended to save the state money that is suspected of being the result of predicate crime or to cut off the operations of crime organizations to expand their crime networks. the policy of criminal law enforcement against the handling of money laundering in the context of criminal law reform in indonesia can be started with the establishment of appropriate legal products through the government and is endorsed by the house of representatives so that law number 8 of 2010 is formed in addition to the products of money laundering crime when this has received special attention from various groups ranging from the community, academia and state administrators who are not only on a national scale, but also regional and globalized through cooperation between countries so that requires the readiness of law enforcement http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 167 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia officials, police, prosecutors, special judges such as ppatk, and one of the significant policies in money laundering is the burden of reverse proof which is considered the most revolutionary policy . constraints faced in the application of criminal law enforcement policies against tackling money laundering in the context of reforming criminal law in indonesia and how to overcome them. the crime of money laundering is increasing and the effect is very large not only is a problem in the field of law enforcement, but also concerns the threat of national and international security of a country, obstacles in dealing with money laundering in addition to investigator resources that are still very limited but also lack of coordination between law enforcement agencies, as well as legislation that overlaps and conflicts with one another. b. the application of money laundering crimes from the perspective of the money laundering act of 2010 law no. 8 of 2010 (uutppu) is a means to realize the expectations of many parties as a law to anticipate various patterns of crime that lead to money laundering activities. as for who is being targeted in this tppu law is to prevent and eradicate money laundering systems or processes in the form of placement, layering and integration. then because the main targets in money laundering activities are bank and non-bank financial institutions, the regulatory objectives of the uutppu include the active roles of these institutions to anticipate money laundering crimes. bank and non-bank financial institutions are identified in the regulation of uutppu with financial service providers. financial service providers are defined as service providers in the financial sector or other services related to finance including but not limited to banks, financial institutions, securities companies, mutual fund managers, custodians, trustees, depository and settlement institutions, foreign exchange traders, pension funds, insurance companies and post offices. then many crime handling systems in this law are processed with special criminal procedure law, because the legal principles are lex specialis . article 68 of this law stipulates that investigations, prosecutions and examinations are carried out based on the provisions of the criminal procedure code, unless otherwise specified in this law. from this arrangement it appears that lawmakers want the law to be adjusted more to the nature of the development of the problem of money laundering crimes problems are governed by legislation other. thus it appears that this law does indeed have a lex specialis nature and the principles in this law can be exceptions to the provisions of other laws based on the lex specialis derogate legi lex generalis principle furthermore, crimes that are threatened against those who carry out trials, assistance or conspiracy in money laundering are equated with criminal threats against criminal offenses that have been completed as regulated in article 3, article 4, and article 5 of the uutppu. in other words the threat of sanctions that are threatened in article 3, article 4, and article 5 from those contained in article 10 is not distinguished. http://creativecommons.org/licenses/by-nc-sa/4.0/ 168 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the provisions in article 10 of this uutppu differ or deviate in principle from the provisions in the criminal code, because in articles 53 and 57 of the criminal code stipulates that qualifications for trial, assistance or conspiracy are distinguished from qualification from criminal acts that have been completed. in this uutppu intrac function becomes wider than sub earlier law which functions such as : 1. prevention and eradication of money laundering. 2. management of data and information obtained by ppatk. 3. supervision of the reporting party's compliance. 4. analysis or examination of reports and information on financial transactions that indicate money laundering and / or other criminal acts. with the existence of these functions, the ppatk's authority becomes wider in order to carry out these functions. the act of blocking of the assets of a suspect or defendant can be carried out if the assets are known or reasonably suspected to be the proceeds of crime. article 71 uutppu determines that investigators, public prosecutors and judges are authorized to order financial service providers to block the assets of every person that has been reported by ppatk to investigators who are known or reasonably suspected to be the result of a criminal offense. in article 73 of law no. 8 of 2010 which is evidence in the examination are: 1. evidence as referred to in the criminal procedure code. 2. other evidence in the form of information that is spoken, sent, received, or stored electronically with optical devices or similar devices such as optics and documents; and 3. documents as referred to in article 1 number 16 the provisions in article 1 number 16 of law no. 8 of 2010 are: "documents are data, records or information that can be seen, read, and / or heard, which can be issued with or without the aid of a means, whether stated on paper, any physical object other than paper, or recorded electronically, including but not limited to: a. writing , sound or image b. map, design, photograph or the like; c. letters, signs, numbers, symbols or perforations that have meaning or can be understood by people who are able to read or understand them. " evidence used in the examination of a crime of money laundering according to article 73 of law no. 8/2010 is indeed very diverse. this is clearly a necessity in eradicating money laundering because the problem of money laundering is a very complex problem because of the mode and the crime system practiced by money launderers has involved high-tech equipment. unlike the criminal code, this uutppu determines the minimum and maximum criminal threats. we can see this, among others, in article 3, article 4, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 169 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia article 5, and article 7 of this law which sets the threat of imprisonment for a minimum of 5 years and a maximum of 20 years and a minimum fine of rp. 1,000,000,000 (one billion rupiah) and a maximum of rp. 100,000,000,000 (one hundred billion rupiah). the specificity of criminal procedure law used by law no. 8 of 2010 is the implementation of the justice system in absentia. justice in absentia is justice done by a court decision in which the defendant was not present although it has been summoned legally in accordance with applicable regulations. the regulation of the judicial system in absentia regulated in article 79 of the law on laws is aimed at making the judiciary run smoothly even without the presence of the accused. another objective is to save property from the proceeds of crime committed by the defendant. law no.8 of 2010 also adopts a reverse proof system, in which the defendant himself is required to prove his innocence. the provisions in article 77 state: "for the purpose of examining the court, the defendant must prove that his assets are not the result of a criminal offense." in article 79 paragraph (4) of law no.8 year 2010 it is stated that if a defendant dies before a judge's decision is handed down, where there is convincing evidence that the accused committed the crime, then the judge can make a determination regarding the assets of the defendant that has been confiscated to be seized and owned by the state. the provisions of article 79 paragraph (4) are very contrary to the principle of the presumption of innocence, where a person cannot be found guilty before a judge's decision states that he is guilty of the charges charged with him. in contrast to law no.15 of 2002, in law no.25 of 2003 there are articles that explain the meaning of money laundering, whereas in law no. 8 of 2010 the definition of money laundering was expanded again to read "money laundering is all acts that meet the elements of criminal acts in accordance with the provisions in this law". in law no. 15 of 2002, the notion of money laundering is not explicitly explained but only given its categorical meaning (in article 2 of law no. 15 of 2002). the meaning of money laundering as explained in article 1 paragraph (1) of law no.25 of 2003 is: "the act of placing, transferring, paying, spending, granting, donating, depositing, bringing abroad, exchanging, or other acts of assets that are known to be or suspected to be the result of a criminal offense with the intent to conceal or disguise the origin of the assets so that as if it were a legitimate asset . " in article 2 of law no. 8 of 2010 is set on the types of criminal offenses the results of these actions are assets as referred to in law no.8 of 2010. this is a unique feature of the money laundering law, because this crime is related to other criminal acts referred to as predicate offences. as stated in article 2 of law no.8 of 2010 are: results of criminal acts are assets obtained from criminal acts, corruption, bribery narcotics, psychotropics, labor smuggling , migrant smuggling , in the banking sector, in the capital market, in the insurance sector, customs, excise, http://creativecommons.org/licenses/by-nc-sa/4.0/ 170 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia human trafficking, illegal arms trade, terrorism, kidnapping, theft, embezzlement, fraud, money fraud , gambling , prostitution , in the field of taxation , in the field of forestry , in the field of the environment, in the field of maritime affairs and fisheries; or other criminal offenses threatened with imprisonment of 4 (four) years or more, committed in the territory of the unitary state of the republic of indonesia or outside the territory of the republic of indonesia and such crimes are also criminal acts under indonesian law. a financial intelligent unit usually performs several tasks and authorities, namely the regulatory task, regulating cooperation in the framework of law enforcement, cooperating with the financial sector, analyzing incoming reports, securing all available data and assets, conducting international cooperation and administrative functions general. ppatk as a financial intelligent unit also carries out such functions. to carry out its role as a financial intelligent unit in efforts to prevent and eradicate money laundering in indonesia, the ppatk was given the duty and authority of law no. 8 of 2010 as regulated in article 39, law no. 8 of 2010 the main task of ppatk is to prevent and eradicate money laundering. while the ppatk function as regulated in article 40 of law no. 8/2010 includes the prevention and eradication of money laundering crimes management of data and information obtained by the ppatk administrative model, with variations: it is an independent institution under the government, such as austrac, fintrac, fincen or under a central bank such as in malaysia (husein, 2003). in the provision of article 41 of law no. 8/2010, ppatk in carrying out the function of prevention and eradication of the crime of money laundering, ppatk is authorized: 1. request and obtain data and information from government agencies and / or private institutions that have the authority to manage data and information, including from government agencies and / or private institutions that receive reports from certain professions; 2. establish guidelines for identifying suspicious financial transactions; 3. coordinate efforts to prevent money laundering with related agencies; 4. provide recommendations to the government regarding efforts to prevent money laundering; 5. represent the government of the republic of indonesia in international organizations and forums relating to the prevention and eradication of the crime of money laundering; 6. organizing anti-money laundering education and training programs; and 7. organize socialization of prevention and eradication of the crime of money laundering. in carrying out the function of data and information management, in accordance with the provisions of article 42 of law no. 8 of 2010, ppatk has the authority to administer information systems. what is meant by the information system as set out in the explanation of article 42 of law no. 8 of 2010 include: 1. build, develop and maintain application systems; 2. build, develop, and maintain computer and database network infrastructure; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 171 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. collecting, evaluating data and information received by ppatk manually and electronically; 4. storing, maintaining data and information into a database; 5. present information for analysis needs; 6. facilitating the exchange of information with relevant institutions both domestically and abroad; and 7. promote the use of application systems to the reporting party. in carrying out the supervisory function on the compliance of the reporting party as regulated in article 43 of law no. 8 of 2010, ppatk is authorized: 1. establish provisions and guidelines for reporting procedures for the reporting party; 2. establishing service user categories that have the potential to commit money laundering crimes; 3. carry out a compliance audit or special audit; 4. delivering information from the results of the audit to the institution authorized to supervise the reporting party; 5. give a warning to the reporting party that violates the reporting obligations; 6. recommend to the authorized institution to revoke the business license of the reporting party; and 7. establish provisions for implementing the principle of recognizing service users for reporting parties who do not have a supervisory and regulatory body. in carrying out the function of analysis or examination of reports and information, in the provisions of article 44 of law no. 8 of 2010 it is regulated that the ppatk can: 1. request and receive reports and information from the reporting party; 2. request information from related institutions or parties; 3. request information from the reporting party based on the development of ppatk analysis results; 4. request information from the reporting party based on requests from law enforcement agencies or overseas partners; 5. forward information and / or results of analysis to the requesting agency, both at home and abroad; 6. receive reports and / or information from the public regarding the alleged crime of money laundering; 7. request information from reporting parties and other parties related to alleged money laundering crimes; 8. recommend to law enforcement agencies about the importance of interception or wiretapping of electronic information and / or electronic documents in accordance with statutory provisions; 9. requesting financial service providers to temporarily stop all or part of a transaction that is known or suspected is a criminal offense; 10. request information on the progress of investigations and investigations carried out by investigators of original crime and money laundering; 11. carrying out other administrative activities within the scope of duties and responsibilities in accordance with the provisions of this law; and 12. forward the results of the analysis or examination to the investigator. http://creativecommons.org/licenses/by-nc-sa/4.0/ 172 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia there are two ppatk tasks that are very prominent in relation to efforts to prevent and eradicate money laundering in indonesia. the first task is to detect the occurrence of money laundering, and the second is the task to assist law enforcement related to money laundering and predicate crimes. in carrying out its duties as an independent institution that aims to prevent and eradicate money laundering activities in indonesia, ppatk will cooperate with many parties. in addition to the police and prosecutors as law enforcement agencies who are authorized to conduct investigations and prosecutions in money laundering, ppatk will also collaborate with bank indonesia, the director general of taxes, the director general of customs and excise, the capital market supervisory agency, the ministry of finance, the public and other institutions both from within and outside the country. seeing so many parties involved in the effort to prevent and eradicate money laundering, it can be realized that money laundering is a very dangerous threat that requires cooperation from many parties to be able to deal with it. conclusion the research concluded and highlighted that in order to optimize the results of the research in this paper a number of suggestions are put forward to increase concrete efforts in the politics of criminal law against the handling of digital asset-based money laundering. the development of information technology that is developing now, especially in the field of digital assets is able to become an opportunity for money laundering. the case of committing the crime of money laundering is carried out using the digital currency-based information technology method and can be used for crosscountry trade. so that the crime of money laundering based on digital assets is very easy to do and can have a worldwide network. whereas in the case of the crime of money laundering currently regulated as in law no. 8 of 2010 concerning tppu, it is felt to be highly irrelevant, because basically digital assets in indonesia have no regulations yet. that politics is a legal product, which in this case digital assets using blockchain technology based on information technology has been very fast developing in developed countries there are already their own authorities. because the velocity of money is so extraordinary that it will have an impact on the country. digital assets should have been made in legislation in order to obtain certainty, usefulness and fairness to their users, and not to use them for money laundering references adji, i.s. 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(2005). tindak pidana pencucian uang: prosiding rangkaian lokakarya terbatas masalah-masalah kepailitan dan wawasan hukum bisnis lainnya. jakarta: pusat pengkajian hukum. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 25 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article how police overcomes money laundering? study analysis of role of central java regional police department on money laundering case djoko pamungkas1 1 central java regional police department, indonesia  djoko.pamungkas@gmail.com how to cite pamungkas, d. (2020). how police overcomes money laundering? study analysis of role of central java regional police department on money laundering case. journal of law and legal reform, 1(1), 25-34. doi: https://doi.org/10.15294/jllr.v1i1.35416 abstract the main purpose of this research is to describe the role of the indonesian national police in tackling the rampant crime of the money laundering criminal act through conducting investigations on it carried out by the central java regional police department and analyzing factors that influence the implementation of investigation. this is descriptive research according to the problem and purpose of the study. in analyzing the study used sociological juridical research methods with qualitative research types. the research emphasized that investigation of money laundering works effectively and quickly based on article 74 law of money laundering, and it carried out through systematic work management needed to support efficient and effective work so the handling of a case can run faster and measurable. the aim is to facilitate investigators in investigate of wealth from criminal acts, which are inseparable from the collection of evidence instruments in the investigation of all the 183 jo 184 criminal procedure code and article 73 law on criminal procedure. 2) factors that influence the investigator to investigate criminal acts of money laundering are legal factors, legal action, legal reasoning or facilities that support the enforcement of law and elements of the community. keywords: indonesian national police; investigation; law enforcement; money laundering; prevention submitted: 12 july 2019, revised: 25 august 2019, accepted: 17 october 2019 journal of law and legal reform (2020), 1(1), pp. 25-34. doi: https://doi.org/10.15294/jllr.v1i1.35416. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/law%20&%20legal%20reform.v1i1.35416 https://doi.org/10.15294/jllr.v1i1.35772 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 26 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 23 table of contents ………………………………………………………….. 24 introduction …………………………………………………………………. 24 method …………………………………………………………………………… 25 investigation of money laundering cases ………………......... 26 i. the role of central java police department ……………. 26 a. money laundering investigation in central java regional police to prevent money laundering in central java area ……….................……. 26 b. factors affected investigator in investigation of money laundering .…... 27 conclusion …………………………………………………………………….. 28 references ……………………………………………………………………... 30 introduction money laundering recently is a world phenomenon and become an international challenge. money laundering generally is defined as a process to change crime from corruption, drugs, gambling, smuggling, and other serious crime, so those crime results made visible and bright as a clean wealth because its origin has been concealed. so many countries have difficulties in preventing money laundering, include indonesia. even indonesia already applying anti-money laundering regime approach since 17th april 2002 that signed by ratification of law number 15 of 2002 about money laundering criminal crime that revised by law number 25 of 2003 (money laundering criminal offenses of law) and changed again into law number 8 of 2010 about prevention and eradication of money laundering crimes but international narcotics control strategy report (incsr) that released by bureau for international narcotics and law enforcement affairs, united states department of state on march 2003, still includes indonesia in a row of asia pacific major laundering countries. from many reports and publications, the proliferation of money laundering criminal crimes in indonesia based on some factors they are free foreign exchange regime that allows anyone to have an international exchange, and uses it to many activities but not required give it to indonesian bank. not only that, the weak of law enforcement and the lack of professional law enforcement officials, moreover, the demands of globalization, especially global developments in the financial services sector as a result of the liberalization process, have allowed criminals to enter open financial markets. technology advances in information system especially the using of the internet, make the organized crime possible that done by transnational organized crime become easy to do (arifin, 2018; muhtada & arifin, 2019). the provisions of banking secrets often applied strictly though money laundering law is already minimalized those provisions. it is possible to use a pseudonym or anonymous by the bank customer that much influenced by the lack of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 27 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia know your customers' principle (kyc) application by the financial services industry (arifin, 2018; wibowo, 2018). it is possible to money laundering practice done by layering, which makes the detection of money laundering activity challenging by law enforcement. in this case, the money that has been placed in a bank is transferred to another bank, both banks in that country and other countries. while the transfer was carried out several times, so it can no longer be traced by law enforcement and legal provisions regarding the confidentiality of the relationship between the lawyer and his client, and between the accountant and his client. yenti garnasih (2003) stated that there are at least two major problems in the implementation of this anti-money laundering law enforcement, namely bank secrecy, and verification. from the aspect of bank confidentiality, customers have the right to privacy and are protected based on bank confidentiality law. while from the element of proof, money laundering crime is not a single crime, but a double. the demand for an act of money laundering requires proving two forms of misconduct at once, namely proving money laundering (follow-up crime) itself and proving that the money is illegal. in other words, enforcement of the money laundering crime cannot be implemented if there are no other supporting elements. method the research used empirical legal research, which conducted on the regional police department of central java, indonesia (polda jateng). the study is examined the role of the regional police department of central java in overcoming money laundering cases. the problems of this research as follow: 1. how the implementation of money laundering crime investigation in central java police regional to prevent money laundering crime in central java? 2. what is the factor that affected the investigator to investigate money laundering crime? investigation of money laundering cases i. the role of the central java police department a. money laundering investigation in central java regional police to prevent money laundering in central java area according to "the principle of fair and quick, simple, low cost and free, honest and not in favor of applying the provisions of the law in all areas of justice," the rest of the investigators feel more capable and useful in the field of investigation. investigation of money laundering crime (tppu) in law number 8 of 2011 in the matter of prevention and eradication of money laundering crime, laws regulated in chapter viii section. explanation of article 73: http://creativecommons.org/licenses/by-nc-sa/4.0/ 28 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia what is meant by "criminal investigations" refers to officials from the ministry of corruption (kpk), legislation and authorities in the ministry of law republic indonesia, the ministry of justice and directorate of law republic indonesia and the directorate general of the republic indonesia. the task of investigators in handling money laundering crimes in central java regional police according to ipda arif setyawan as panit i of unit 2 of subdit 4 of ditreskrimsus of central java regional police is receiving complaints from the public about the existence of money laundering crime, receiving reports from the central financial reporting and analysis center (ppatk) as well as conducting investigations of money laundering crime can be carried out in accordance with criminal investigations of misconduct, finding evidence of commencement. enough criminal acts of money laundering when conducting investigations of criminal acts according to their authority. whereas article 75 is: in the case of investigators finding evidence of commencement that is sufficient for money laundering crime and notifying the original criminal act, the investigator combines investigation of unprecedented criminal action with the investigation of criminal laundering and informs him of the original criminal act. these opinions and arguments are based on the general explanation of law number 8 of 2010, which states: in its development, the act of launder was increasingly complex, crossed the boundaries of state jurisdiction, and used a more varied mode, utilized the financial system, increased the number of financial institutions, increased the number of financial institutions. article 69 uu ppttpu: to be able to carry out investigations, prosecutions, and inspections in the field of justice for acts of laundering, it is not compulsory to prove that it is more before legal action. article 75 emphasizes the evidence for the inception of sufficient money laundering crime cases and the origin of money laundering. where can sufficient evidence be obtained from the investigation procedure? the results of the recent investigation of the money laundering crime are 6 cases and it is showed that money laundering was only three cases, and three other cases. thus, of the 6 tppu cases reported by ppatk, only three cases had fulfilled the elements of the tppu article to proceed to public prosecutor. while from three other examples not constituting money laundering, according to ipda arif setyawan as unit 2 sub directorate of ditreskrimsus central java police, can be broken down into 3 cases fulfilling elements and evidence, and three cases do not qualify as suspicious transaction reports (suspicious transaction report) because complete evidence or sanctions do not support it. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 29 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia based on the stipulations in article 83 and article 86 of the law money laundering crime, the investigator should protect reporters and witnesses. this issue highlighted that the definition of bank secrecy is unclear. with the enactment of law no. 10/1998 on november 10, 1998, which amended in law number 7 of 1992, the terms "financial condition" and lack of clarity but still lack of clarification (hakim, 2015; huesin 2004; amirullah 2003; arifin & choirinnisa, 2019). there is, as seen in the definition of bank secrecy in law no. 10 of 1999 concerning the amendment of money in law no. 7 of 1992 concerning banking which states, that the confidentiality of the bank is everything related to the information "with regard to" and. does everything in the case of saving funds and deposits must be kept secret by bank, for example the customer's name, address, account number, card number, hobbies, family customers and so on, who the customer deposits funds must keep secret and whether all customers store either bank account numbers, hobbies, family customers etc. b. factors affected investigator in investigation of money laundering based on the interview with ipda arif setiawan as panit i unit 2 subdit 4 ditreskrimsus central java regional police, factors affected investigator in investigate of money laundering are: 1. law 2. law enforcement 3. facilities that support law enforcement 4. community one of the difficulties, in order to prevent investigation of money laundering crime, is juridical constraints, that is as regulated in article 72 of money laundering law but need a long time to get allowed from the officials such as a bank. besides, only in a short period, the lender can move the money from the deposit of one other bank in practice. the implementation of rules governing the confidentiality of bank secrecy at the level of investigation has not yet been made expertly. this is in accordance with the view of husein (2004), that even though law no. 8 of 2012 claims that there is a "general interest" can be used as a reason to open up or breakthrough provisions of bank secrecy, in the implementation of it in the field, there is a "general interest" that can be used as a reason to open up or break through the provisions of the bank secrecy, in the implementation of it in the field, as well as the progress and the relative effectiveness. bank services that continue to develop make taxpayers, debtors (guarantor) and suspects/defendants in the calculation of minutes can only immediately move and account for other parties such as inter persons or their relatives. based on an interview with ipda arif setiawan as panit i unit 2 subdit 4 ditreskrimsus central java regional police, efforts to deal with obstacles faced by investigators in money laundering cases are as follows: 1. against the juridical obstacles a. bank secrecy provisions http://creativecommons.org/licenses/by-nc-sa/4.0/ 30 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia while repeating the judiciary's most profound sentences concerning the existence of regulations regarding bank secrecy, the agreement is made by bringing parties between investigators, banks, and customers into one place. b. obligation to protect reporters and witnesses. to overcome legal problems which relate to the provision of obligation to protect reporters and witnesses in the investigation of money laundering crime, carried out by way of: first, making a report on criminal acts of washing the money as an immediate finding of criminal investigations. secondly, protection was carried out secretly by not project was done in a manner, it was not immediately published, and third, with consideration of security and safety reasons, the taxation was placed at national police headquarters under the supervision of the police. c. the perception of investigators about money laundering crime was not yet perfect. meanwhile, to overcome the obstacles that judicially related to investigators' existence perception regarding the crime of money laundering. d. the information from the ppatk is not yet complete. to overcome the constraints that are juridical in relation to conflict with ppatk mediation form, they are not complete, carried out by investigating how to coordinate with ppatk to present the testimonies through ppatk mediation so that they are not perfect, carried out by examining how to coordinate with ppatk to give the proofs through ppatk mediation so that they are not incomplete, carried out by investigating how to coordinate with ppatk. after that, the investigators conducted an examination of them by conducting interviews to determine who could be accused of witnessing and witnessing, which then carried out involuntary remedies. 2. non-juridical constraints a. the reporter is not necessarily a victim to overcome the non-legal issues that relate to the presence of reporters in criminal acts of laundering which have not yet been determined to be victims of crime, they have been carried out by providing guarantees to the complainant, that is, by doing criminal acts that are reported to be a crime. b. the ability of human resources in humanity is limited investigations. to overcome the constraints that are non-legal experts related to the ability of human resources limited human investigators, they are carried out utilizing improving the capability of human resources. 1) sending investigations to take part in a seminar on the crime of laundering. 2) sending investigators to follow the special education investigation of leisure laundering. 3) sending students to follow up on the study program in the legal market program. 4) send out investigators to follow training in foreign countries such as united states association. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 31 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conclusion the implementation of criminal investigations on money laundering in the central java regional police in context of tackling the criminal acts of the tppu in the central java region can run the effectiveness of investigating the law in investigating the money laundering crime, based on the thought that article 74 of law on criminal procedure code in central java region can carry out effective investigations in investigating the law in conducting money laundering crime. wealth originating from criminal acts, because the process of tracing assets is a part that is inseparable from the process of collecting evidence in investigation accordance with article 183 jo 184 of the criminal procedure code and article 73 concerning legal evidence law. however, there are still legal norms (norms) in regulating the authority of the investigator related to the implementation of article 69 article 74 and article 75 of law no. 8 of 2010, that there are still multiple interpretations, namely that investigators are not obliged to prove their original criminal acts. factors that affected investigators in conducting criminal investigations of financial laundering are law factors, law enforcement factors, facility factors, or facilities that support law enforcement and community factors. the obstacles that arise in the investigation of money laundering crimes consist of: 1) judicial obstacles a) provisions concerning bank secrecy b) obligations to protect reporters and reactions c) perceived investigations on tppu are not yet perfect d) information from ppatk is incomplete 2) non-judicial obstacles, such as: a) the reporter has not however been victimized b) the number of investigations and capabilities of hrm is limited. as for the scope of handling the financial problems of the investigators in the case of money laundering, the following facts are as follows: a. against the legalistic control 1) the provisions of bank secrecy are carried out by bringing together parties between investigators, banks, and customers in one place. 2) the obligation to protect reporters and witnesses is carried out by making the report of money laundering and direct laundering of police as collection, and protection is carried out in the same manner or placed in police headquarters under the supervision and taking care of the police directly. 3) perceptions of investigations regarding mptp have not been perfect, carried out by holding socialization of law no. 8 of 2010 concerning tppu to investigators and issuing a special guidance on money laundering crime. 4) information from ppatk is not complete, yet it is carried out through conducting coordination with ppatk to present witnesses through ppatk mediation so that they do not feel unrestricted concerning the police. http://creativecommons.org/licenses/by-nc-sa/4.0/ 32 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b. against the control which is non-legalistic 1) reporting has no determined victims yet, carried out by providing guarantees to the reporter by making sure that planted actions reported are a direct discovery of the policy. 2) limited human resource capacity for students is carried out by increasing the ability of human resources to investigate through seminars, advanced studies, or overseas training such as in the united states. the author also suggests that the effective implementation of money laundering investigation and inclusion in the justice sector is a fast, cheap and straightforward grave. the government needs to establish an institution that supports the money laundering crime investigation, such as the ppatp in every region/province. to avoid interpreting and due to lack of clarity on duties and authority of the money laundering act, by placing articles that regulate authority and regulations such as implicit regulation, authority, and regulation. other authorities are more effective in implementing the intended authority. in optimizing tppu investigations, it is necessary to increase the number of investigative personnel who have the qualifications to investigate money laundering in every institution/agency that has been given the authority to carry out investigations into money laundering and to intensify training/education activities. references amirullah, a. (2003). money laundering tindak pidana pencucian uang. malang: bayu media publishing. arifin, r., & choirinnisa, s. (2019). pertanggungjawaban korporasi dalam tindak pidana pencucian uang dalam prinsip hukum pidana indonesia (corporate responsibility on money laundering crimes on indonesian criminal law principle). jurnal mercatoria, 12(1), 43-53. doi: http://ojs.uma.ac.id/index.php/mercatoria/article/view/2349 arifin, r. (2018). law enforcement in banking criminal act involving insiders. jambe law journal, 1(1), 55-90. https://doi.org/https://doi.org/10.22437/jlj.1.1.55-90 garnasih, y. (2003). kriminalisasi pencucian uang (money laundering). jakarta: fakultas hukum universitas indonesia. garnasih, y. (2007). kebijakan kriminalisasi dalam pemberantasan tindak pidana pencucian uang. mimbar hukum, 19(2), 167-181. hakim, a.l. (2015). crime of money laundering and modus business law in perspective. jurnal hukum de’rechtsstaat, 1(1), 33-46. doi: http://dx.doi.org/10.30997/jhd.v1i1.410 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://ojs.uma.ac.id/index.php/mercatoria/article/view/2349 http://dx.doi.org/10.30997/jhd.v1i1.410 journal of law & legal reform volume 1(1) 2020 33 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia husein, y. (2004). tindak pidana pencucian uang (money laundering) dalam perspektif hukum internasional. indonesian journal of international law, 1(2), 342358. http://journal.ui.ac.id/index.php/ijil/article/viewfile/2726/2108 muhtada, d., & arifin, r. (2019). penal policy and the complexity of criminal law enforcement: introducing jils 4(1) may 2019 edition. jils (journal of indonesian legal studies), 4(01), 1-6. doi: https://doi.org/10.15294/jils.v4i01.30189 republic of indonesia. (1981). act number 8 of 1981 of the republic of indonesian on the code of criminal procedure (indonesian criminal law procedure code) wibowo, m. h. (2018). corporate responsibility in money laundering crime (perspective criminal law policy in crime of corruption in indonesia). jils (journal of indonesian legal studies), 3(2), 213-236. doi: https://doi.org/10.15294/jils.v3i02.22740 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://journal.ui.ac.id/index.php/ijil/article/viewfile/2726/2108 https://doi.org/10.15294/jils.v3i02.22740 34 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote corruption, money laundering, and tax evasion are global problems, not just challenges for developing countries. sri mulyani indrawati former of financial minister of republic of indonesia http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.brainyquote.com/authors/sri-mulyani-indrawati-quotes journal of law & legal reform volume 2(4) 2021 539 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article traditional institutions and socio-economic development in nigeria: a critical analysis bolaji omitola1, olawale olufemi akinrinde2, adetola omitola3 1,2 osun state university, osogbo, nigeria 3 redeemer's university, ede, nigeria  olawale.akinrinde@uniosun.edu.ng cited as omitola, b., akinrinde, o., & omitola, a. (2021). traditional institutions and socioeconomic development in nigeria: a critical analysis. journal of law and legal reform, 2(4), 539-552. https://doi.org/10.15294/jllr.v2i4.48587 submitted: december 7, 2020 revised: march 11, 2021 accepted: july 11, 2021 abstract traditional institutions held pre-eminence positions in the pre-colonial societies in nigeria. the level of order witnessed during this period was a testimony to the invaluable roles played by the traditional rulers in administering their different empires, kingdoms and communities. however, during the colonial era, the position of traditional rulers was compromised as they became mere stooges of the colonial power. the post-colonial period saw the traditional rulers’ roles diminished as they were given advisory roles in previous constitutions and with no single role in the 1999 constitution. thus, for the continuous relevance of the traditional institutions, there is a need for re-examination of their roles in the country. this chapter argues for community based developmental roles for the traditional rulers in the country. these include promotion of tourism journal of law and legal reform (2021), 2(4), pp. 539-552 doi: https://doi.org/10.15294/jllr.v2i4.48757 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i4.48587 https://doi.org/10.15294/jllr.v2i4.48757 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 540 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia development, encouraging modern agricultural development, maintenance of peaceful co-existence among the people of their domain and settlers from other parts of the country, providing platform for alternative dispute resolution, monitoring the activities of the various vigilante groups and other unconventional security apparatus in their communities and lastly partnering the security operatives through intelligence gathering within their domains for effective operations of security outfits in serving the people better. keywords: traditional institution, nigeria, appraisal, security and socio-economic development. introduction it has been observed that from time immemorial, most traditional african societies had been centers of political civilization as a result of the recognition, acceptance and belief of the african peoples in the roles and efficacy of traditional rulers as agents and promoters of value-based governance and politics in africa (akinfenwa, 2013). the level of political activities witnessed in pre-colonial nigerian societies and elsewhere in africa where traditional institutions held sway in the administration of the people before the advent of colonialism was not unconnected to the invaluable roles played by the traditional rulers (akinfenwa, 2013). however, with the advent of the republican state, there is a need for reexamination of how the great institutions can be better engaged for further development of the polity especially in the local communities that represent their immediate jurisdiction. towards achieving the above objective, the paper has been divided into the following sections: the first section is this introduction, the second section examines various concepts related to this enterprise including various arguments on the role of traditional rulers, the third section trace a brief history of traditional rulers in politics, the fourth sections examine the roles of traditional rulers in a democratic dispensation while the last section concludes the paper. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 541 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia traditional rulers, democratic consolidation, security and development if tradition is truly taken as the handling down of custom, culture, and belief from one generation to another (horner, 1990), then there is no denying the fact that traditional rulers are the keepers, teachers and symbols of these traditions. akinfenwa (2013) observes that a traditional ruler is a person who by virtue of his ancestry occupies an area and who has been appointed to it in accordance with the custom and tradition of the area and whose throne has been in existence before the advent of colonialism in nigeria. omo oba ukhu akpolokpolo, eerediauwa ii of benin (1982), using his personal experience, sees a traditional ruler as the traditional head of an ethnic community whose stool conferred the highest authority on the incumbent since the time before the beginning of colonial rule. within the same perspective, amusa (2010) equally asserts that the positions of traditional rulers were sanctioned by the traditions, history and culture of their respective peoples who held them in high esteem and reverence. this then suggests that the institutions of traditional rulers are enduring parts of the peoples’ heritage. past and present nigerian traditional rulers are emblems and custodians of everything that has to do with the peoples’ ancestral beliefs, culture, and tradition. they ascended the royal throne by virtue of their birth to royal families and other cultural rite or the leading of the gods. democratic consolidation democracy as a concept or a system is devoid of any generally acceptable definition among most scholars. thus, democracy has been interpreted by different people to suit their different situations and interests. however, there is a need to consider some definitions especially in order to put the focus of this paper in perspective. for instance, bobbio (cited in caron, et.al, 1992: 424) defines democracy as “a cluster of rules permitting the broadest, surest, direct and indirect participation of majority of the citizens in political decisions, for example in decisions affecting the whole country”. this definition to a great extent conforms with the classical definition ascribed to abraham lincoln that democracy is government of the people, by the people and for the people. thus, central to these definitions is the role of the people in government through one avenue or the other. it is within this context that momoh (2006: 63) concludes that “democracy whether classical or social democratic, popular or socialist, talks about representative government and http://creativecommons.org/licenses/by-nc-sa/4.0/ 542 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia empowerment of the people”. in order words, direct democracy practiced in ancient athens and greek city states has become impossible in the modern societies; therefore, the principle of representation has become central to the operations of modern democracy. legislature as a representative institution is thus central to the realization of democratic objective of government of the people by the people and for the people as espoused by abraham lincoln. also, people’s interest is transmitted into democratic space in most democracies faster than any other democratic institution. many factors have been identified as preconditions for democratic experiment to succeed; top among these conditions have to do with socioeconomic and political factors. according to scholars such as huntington (1968) and gurr (1980), democratic states must have viable and supportive political and democratic institutions, of these political and democratic institutions which include parliament, the presidency, judiciary, political parties, interest associations and the armed forces among others, the parliament i.e., the legislature is very prominent (huntington, 1968; gurr, 1980; ogundiya, 2010). thus, bratton, (1998) sees the process (of democratic consolidation) as where democracy becomes so broadly and profoundly legitimate among its citizens that it is unlikely to breakdown. while arguing that democratic consolidation is a function of the peculiarity of the country under study, ogundiya (2010: 7), maintains that “in transiting societies like (nigeria) where the threat of coup persists, consolidation may be seen as the process of eliminating opposition to democracy on the part of powerful actors” thus, the process of making democracy acceptable to the people overtime without considering a reverse to the undemocratic era is referred to as consolidation. security national security as a concept is initially predicated on the military force, whereby the state is militarily strong enough to declare war standing by itself. it has however been observed that overwhelming military strength does not always result in security for the states with such strength. this is exemplified in the cases of the united states of america and former ussr now russian federation during the cold war in vietnam and afghanistan respectively and israel in her wars against the arabs (barash and webel, 2009: 324-325). although there is often a legitimate military dimension to national security, it must be emphasized that national security cannot be measured by military parameters alone. it is also a function of economic strength, political cohesiveness, social equity and integration, cultural outreach, racial harmony, and environmental soundness. national security is diminished if the populace is http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 543 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia inadequately housed or fed and also if medical care is insufficient (barash and webel, 2009: 328). thus, the following definition captures the true essence of national security in the sense that national security is defined “as the freedom from danger or absence of threats to the multidimensional elements that may affect the nation’s ability to protect and develop itself, promote its cherished values and national interests, as much as promote and boost the well-being of its peoples” (onuoha, 2008). this is precisely because sustainable development, according to the world commission on environment and development, refers to “a process to meet the needs of the present without compromising the ability of future generations to meet their own needs.’’ it is an approach that holds out the promise of maintaining the standard of living somewhat similar to that which we possess today, while recognizing that we cannot continue to exploit the global environment as we have in the past. from the world summit on sustainable development, three basic areas of sustainable development were recognized: economic, social and environment sustainability. economic sustainability means generating prosperity at different levels of society and addressing the cost effectiveness of all economic activity, with emphases on viability of enterprises and activities and the ability to be maintained in the long term. social sustainability not only refers to respecting human rights and equal opportunities for all in the society but also to an equitable distribution of benefits, with a focus on alleviating poverty. there is an emphasis on local communities, maintaining and strengthening their life support systems, recognizing, and respecting different cultures and avoiding any form of exploitation (johannesburg, 2002). traditional rulers in nigeria history traditional rulers have been actively involved in nigerian politics and governance even before the attainment of independence in 1960. before the 19th century encounter with the west, africa had already instituted sophisticated and highly civilized mode of governance and administration system that was built around the highly revered traditional rulers (egbe, 2014). the level of political development witnessed in pre-colonial nigerian societies could not be divorced from the important roles and inputs of the traditional rulers. the roles played by traditional rulers in various kingdoms and communities in pre-colonial nigerian were self-evident. across all divides in the geographical composition of prehttp://creativecommons.org/licenses/by-nc-sa/4.0/ 544 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia colonial nigeria, traditional rulers played significant roles in the political development of their respective kingdoms. the olomu kingdom, opobo kingdom, the itshekiri kingdom and the ilaje kingdom in the southern parts of pre-colonial nigeria, to mention but a few witnessed high levels of political centrality and development during the reign of various traditional rulers like nana in olomu and jaja in opobo (crowder and ikime, 1970). in fact, the level of political development witnessed at this time was an attestation to the fact that if the traditional system of governance had not been disrupted by colonialism, these societies would have been models and standards of political organization for other societies outside the african continent (egbe, 2014). similarly, the kingdoms and communities in the western part of pre-colonial nigeria achieved enviable levels of political development partly due to the traditional kingship system that was in place. the old oyo empire headed by the alaafin, the ife kingdom headed by the ooni, the egbaland headed by the alaake to mention but a few were forces to be reckoned with in terms of political development. in the northern sphere, the caliphate and the various emirates attained considerable level of development under their traditional rulers otherwise known as the sokoto caliphate and emirs for the emirates like the ilorin emirate and kano emirate (crowder and ikime, 1970). during the colonial period, traditional rulers continued to be engaged in the governance and administration of the people but not as independent entities. they were to serve as the medium of interface between the colonial government and the people. although, serious resistances were put forth by some traditional rulers like jaja of opobo and nana olomu who were opposed to foreign rule, the colonialists however succeeded in suppressing these resistances (crowder and ikime, 1970). during this period, it was clear that the traditional rulers had to rule their people according to new administrative principles introduced by the colonial government. whereas in northern nigeria, the emirs exercised stronger participatory role in the colonial administration of their local areas, the participation of traditional rulers in colonial administration was limited in the west and almost non-existent in the east because of its decentralized nature (egbe, 2014). regrettably, the imposition of colonial administrative system on the indigenous governing system headed by traditional rulers brought some fundamental changes to the traditional institution. agbese (2004) observes that with colonial rule, traditional rulers were no longer sovereign; instead, their central role was transformed from serving their people to ensuring colonial exploitation. secondly, the repressive nature of the colonialists was bestowed on traditional rulers by empowering rulers to deal with their opponents through the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 545 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia instrumentality of the native authority. for instance, prisons, courts, and police institutions were all established for the local rulers. some of them used the police to arrest their political opponents who were then tried in courts which were presided over by the traditional rulers. many of such opponents ended up in jail on trumped up charges. another notable legacy of colonialism on the traditional political systems was the relegation of women to the background. women were consigned to subsidiary role in politics and government. as nweke (1992) noted, women such as queen amina of zazzau, queen owani of ilesha, princess inikpi of idah and princess moremi of ife played crucial and decisive roles in the politics of their societies and exhibited valor and dynamism matched with solid achievements in their times. colonialism further disposed people’s entrenched mechanisms for removing or disciplining errant rulers. unlike the pre-colonial practice whereby rulers governed through customarily established rules and procedures, traditional rulers now ruled under letters of appointment spelling out their powers and functions as colonial underlings. so long as they carried out the wishes of their colonial overlords and did not threaten the process of colonial exploitation, they could retain their power. heineke (2012) maintains that traditional rulers became the instruments for enforcing british colonial policies including such policies as collection of taxes, levies, and procurement of ablebodied men for force labor. in the immediate post-independence period, precisely from 1960 to 1966, the traditional rulers constituted the membership of houses of chiefs in the western and northern regions of the country where they contributed their quota to the development of the country. traditional rulers in a democratic setting there are two strands of argument as to whether there are roles, if any, for traditional rulers in the process of consolidating nigeria’s nascent democracy or not. on one spectrum of the argument, there is an increasing disapproval of the involvement of traditional rulers in the political process of the country due to the following reasons: one is the tendency for clash of supremacy between the traditional rulers and the elected representatives of the people. second, some believe that as a result of the legacy of colonial intervention, the traditional institution has become anti-democratic institution, and the instrument for entrenchment of patriarchy, which relegates women to the background in term of http://creativecommons.org/licenses/by-nc-sa/4.0/ 546 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia participation at the highest level of politics. thirdly, it has been argued that the engagement of traditional rulers in political affairs of the country could bring about primitive political injunctions that may not be in tandem with present realities. for instance, the staging of traditional rituals as part of signs and symbols of the institution sometimes clash with the norms of modern life. however, some commentators have observed that the traditional rulers could still contribute their quota in the democratic dispensation in various ways (nico, 2014). the provision of the 1979 constitution gave the traditional rulers mere advisory roles to play in the administration of the local governments. however, the 1999 constitution did not assign any role to traditional rulers. however, one can observe that the traditional rulers and the institutions they represent are still relevant to democratic process provided this would not in any way clash with the power and functions of elected office holders at any level of governance. it is therefore imperative to explore how traditional rulers can contribute to peace, security, and development of their respective communities. traditional rulers for peace, security and development in nigeria it cannot be gainsaid that the traditional institutions have come a long way in the development of the country. the corps of royal fathers in nigeria are not only well educated but at the same time highly sophisticated and accomplished achievers in their respective fields of endeavor before mounting the throne of their forefathers. in the light of this, it would amount to a great waste of human resources if these highly intelligent and great achievers are not saddled with great responsibility towards the development of their communities and invariably the country. in addition, nigerians are still essentially cultural people as the traditional behaviors and ways of life co-exist side by side with modernity. thus, the traditional institutions still play active role in the organization of the society (omitola, 2013; omitola, 2014). the traditional leaders still engage in social control mechanism in our society therefore they can complement the security agencies in the search for solution to the insecurity pervading the state (omitola, 2012). this has become even more germane as the current wave of insecurity in the country now has no status limitation as both subjects and http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 547 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia nobility could fall victim. in fact, our royal fathers like other citizens of the country have been victims of kidnapping and other sundry crimes. the royal fathers are in position to complement the efforts of the current administration in the state to address the root cause of insecurity which includes youth unemployment leading to crimes and other vices. there is no gainsaying the fact that it is government responsibility to provide for security of the people, however, our royal fathers can help in mobilizing their people for various government policies and projects. such policies and projects include farming, implementation of modern agricultural development initiatives, and regular staging of festivals and other activities to promote tourism development in their communities. the royal fathers are in good position to do all these because of their proximity to the grassroots and their respective communities and oyeweso, (2012: 15-16) has argued that the peace of the communities will eventually translates to the peace of the states and ultimately that of the country as a whole. one effect of such would be generation of employment opportunities for the teeming youths of the country. gainful employment will ensure the youths are not available for criminal and other activities that constitute security risks to our country. our royal fathers can also assist government greatly, this could be done through the mobilization of the people for intelligence gathering, which would ensure that crimes are nipped in the bud, and that criminals are apprehended promptly. in recognition of this, enugu state government in its efforts to combat the spate of insecurity in the state recently asked the traditional rulers to assist in recruiting 50 persons that would make up their community security units (chiedozie, 2016: 14). another area of royal intervention in security issues could take the form of sensitization of the people to the need to develop eagle eyes about the goings on in their environment and help forestall any criminal act. lastly, on security, our royal fathers need to take more than a passing interest in the activities of the various unconventional security apparatus in their communities such as the traditional watchmen and vigilante guards among others to ensure that their activities are not antithetical to the peace and security of the communities (omitola, 2016a). for adequate maintenance of peace in their communities, our royal fathers need to encourage peaceful co-existence among their subjects and between their subjects and settlers from other parts of the country, especially settlers from other ethnic groups in the country. to achieve this objective various platform for interactions at the community level can be instituted. activities that promote http://creativecommons.org/licenses/by-nc-sa/4.0/ 548 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia peaceful competition can be put in place to encourage spirit of oneness among the people such as traditional sports including wrestling among others. also, in situation where the peace of the community is threatened, our royal fathers should be actively involved in alternative dispute resolution practice among their people. this step helps to discourage adverse and costly litigations. alternative disputes resolution also serves the end of preventing breakdown of law and order when grievances among the people in the communities are immediately addressed by our royal fathers without fear or favor of any contending party. another area for our royal fathers’ intervention is to promote the our traditional values and virtue such as hard work, honesty, goodwill and good character and most importantly moderation in everything especially as it relates to political competition should be preached to the people (2016b). such intervention will help to deepens democracy as political competitors would see themselves more as brothers than antagonists thus violence will gradually disappear from our political arena. still on royal intervention at stimulating development in the country; our revered kings have been serving and they should continue to serve as channel of communicating various government policies, programs, and decisions to the people in languages that will best aid the people understanding and appreciation of such policies, programs, and decisions. however, before our royal fathers can discharge all the above responsibilities very well, they must totally remove themselves from participation in active partisan politics. in other word, there is no need for our royal fathers to engage in supremacy contest of any form with the elected office holders in their communities. our royal fathers are fathers to all the contending parties in the political arena. the kings own everything in traditional connotations, and this should be meaningful in the sense that the king owns all the political parties and their members are all his children and therefore the king is expected to treat all of them equally. it is by following this path that we can sustain the esteemed and reverence conferred on the traditional institution. moreover, such self-enlightened modus operandi shall further justify the continuing funding of the institution no matter how little from the government. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 549 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conclusion this paper has argued that the continuous relevance of the traditional rulers in the current democratic dispensation in the country lies in their invaluable roles as the custodian of customs and traditions of their people and the deployment of same for the peace, security, and overall development of their communities. specifically, areas of royal intervention identified include, preaching the timetested traditional values of various groups and communities in the country on the need for fairness in political competition, serving as channel for communicating government policies, programs and policies to the people, promotion of festivals and other activities to promote tourism development, mobilization of the people for modern agricultural development, maintenance of peaceful co-existence among the people of their domain and settlers from other parts of the country, providing platform for alternative dispute resolution among their people, thereby discouraging conflicts from escalating, monitoring the activities of the various vigilante groups and other unconventional security apparatus in their communities and thereby ensuring that those groups do not violate the rights of the people and lastly partnering the security operatives through intelligence gathering within their domains for effective operations of security outfits in serving the people better. references agbese o. (2004), “chiefs, constitutions and policies in nigeria”. west africa review, africa resource center, issue 6. akinfenwa, b. (2013), traditional rulers and the challenges of democratization in nigeria. published online. akinola, d. (2015), the role of traditional rulers in nigeria government and politics, being a seminar paper presented in seminar series, department of political science, university of ibadan. amusa, b. and ofuafor, o. (2012), resilience of traditions in contemporary politics: a historical study of the political influence of traditional rulers in nigeria. current research journal of social sciences 4(6), 407-414. barash, d. p. and webel, c. p., (2009) peace and conflict studies, california: sage publications inc. http://creativecommons.org/licenses/by-nc-sa/4.0/ 550 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia caron, b, gboyega, a, and e. e. osaghae (eds.). (1992), democratic transition in africa, ibadan, credu documents in social sciences and humanities. chiedozie, i. (2016), “tension as enugu recruits 25,000 neighbourhood watch members”, the punch, thursday, october13. crowder, m. & ikime, o. (1970), west african chiefs: their changing status under colonial rule and independence. university of ife press, ile-ife, ife. egbe, j. (2014), native authorities and local government reforms in nigeria since 1914. journal of humanities and social science, 19(3), 113-127. gurr, t. (1980), handbook of political conflicts, new york, free press heinecke, p. (1986), popular fallacies in the nigerian social sciences. okpella, s. asekome publishing company. huntington, s. p. (1968), political order in changing societies, new haven ct. yale university press johannesburg, j. (2002). world summit on sustainable development, london, bath press. momoh, a. (2006), democracy, de-democratisation and development, nigerian journal of international affairs, 32(2). national institute for cultural orientation nico (2014), “on culture, peace and national security: the role of traditional rulers in nigeria’s democracy” nico national conference for traditional rulers held between 26th-27th may, 2014 at the banquet hall, arewa house, kaduna, kaduna state. nweke, c. (1992), female participation in politics: the case of the 1990 local government council elections in the northern zone, nigerian journal of elections and political behavior, 3(1). ogundiya, s. i. (2010), political parties, institutionalisation and democratic consolidation: theoretical nexus and nigeria’s experience in the fourth republic in ogundiya, s. i. (ed.) political parties and democratic consolidation in nigeria, ibadan, codat publications. omitola, b. o. (2012), terrorism and nigerian federation: the challenges of disintegration of the fourth republic, african security review, 21(4). 4-16 omitola, b. o. (2013), the nigerian state and security challenges: beyond insurgency, militias as peacemakers, a paper delivered at the fourth iss conference on national and international perspective on crime reduction and criminal justice held in johannesburg between 20th and 22nd august 2013. omitola, b. o. (2014) “global war on terror in africa from below: militias and vigilante as peacemakers in nigeria” a paper presented at the 4th annual african unity for renaissance conference and africa day expo held from http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 551 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 22nd to 25th may , 2014 at saint george hotel, pretoria, south africa. omitola, b. o. (2016a), “popular security architecture for nigeria: experiences from aspects of indigenous culture and traditions” a paper presented at 2016 africa conference held in university of texas at austin, texas, from 25th to 27th april, 2016. omitola, b. o. (2016b), “overcoming leadership deficit in nigeria: lessons from “africanity” concept of omoluabi in yoruba south-west, nigeria” a paper presented at the 2016 tofac conference held at redeemer’s university, ede osun state, nigeria from 2rd to 4th july, 2016. onuoha freedom, (2008) oil pipeline sabotage in nigeria: dimensions, actors and implications for national security”, african security review, 1(3). oyeweso, s. o. (2012), “national interest, security and development: the role of traditional rulers in mitigating non-state security threats in nigeria” a paper delivered the 5th general assembly of the national council of traditional rulers in nigeria (nctrn), abuja, ashcraft centre for social sciences research. http://creativecommons.org/licenses/by-nc-sa/4.0/ 552 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia our great democracies still tend to think that a stupid man is more likely to be honest than a clever man, and our politicians take advantage of this prejudice by pretending to be even more stupid than nature made them. bertrand russell new hopes for a changing world http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.goodreads.com/work/quotes/1408043 journal of law & legal reform volume 1(1) 2020 35 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article 'sak uwong sak uwit' for environmental protection based on local wisdom: an environmental law reform in indonesia ridwanto ardi kusumo1, anang wahyu kurnianto2 1 notary and official certifier of title deeds, kendal regency, indonesia 2 cakra justice law office, batang, indonesia  ridwantoardi@gmail.com cited as kusumo, r.a., & kurninato, a.w. (2020). ‘sak uwong sak uwit’ for environmental protection based on local wisdom: an environmental law reform in indonesia. journal of law and legal reform, 1(1), 35-48. doi: https://doi.org/10.15294/jllr.v1i1.35451 abstract the research is examines the local wisdom values of sak uwong sak uwit as environmental protection in the context of local regulation. after the issuance of the regulation, of course it must be understood how the implementation of the regulation and how to supervise the implementation of this policy in pegandon village, pegandon district, kendal regency. this research is a sociological juridical research with a qualitative approach, with research locations in kendal district community and village empowerment agency and pegandon village. the technique of checking the validity of the data uses source triangulation and technique triangulation techniques. analysis of the data used is an interactive analysis model. this study concluded that, first, in pegandon village running the program of sak uwong sak uwit (susu) was only at the beginning of the year, because of its lack of approval by the people who had to bear the burden of costs, non-existent planting land and management of unclear results. then, the second shows that the lack of seriousness of the regional government in terms of guidance and supervision of this program has an impact on the implementation of the sak uwong sak uwit (susu) local regulation. keywords: local wisdom; regional regulations; implementation; environmental protection submitted: 12 july 2019, revised: 25 august 2019, accepted: 21 october 2019 journal of law and legal reform (2020), 1(1), pp. 35-48. doi: https://doi.org/10.15294/jllr.v1i1.35451. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:ridwantoardi@gmail.com https://doi.org/10.15294/jllr.v1i1.35772 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 36 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 31 table of contents ………………………………………………………….. 32 introduction …………………………………………………………………. 32 i. theoretical basis ……………………………………………………….. 35 a. theory of the law system of perspective lawrence m. friedman ……… 35 b. monitoring theory ………………………………………………………….. 35 c. theory of coaching …………………………………………………………. 36 method …………………………………………………………………………… 36 sak uwong sak uwit and environmental law reform … 37 i. environmental protection based on local wisdom in the implementation of sak uwong sak uwit based on regional regulation number 3 of 2012 in kendal regency ……………………………………………………………………… 37 ii. monitoring of the implementation of sak uwong sak uwit (susu) based on regional regulation number 3 of 2012 concerning planting trees for prospective bride and child giving birth in kendal regency ………………… 38 conclusion …………………………………………………………………….. 40 references ……………………………………………………………………... 40 introduction the environment is the creation of god almighty who had existed in the world for several years before humans existed. human relations with the environment are interrelated and both are interdependent, we can imagine if humans live without the environment (yang, hu, du, geng, & shi, 2019). the existence of an environment that grows around humans can help humans in managing the air (o2) that is inhaled by it. in indonesia, various ways have been sought by the government, including by improving legal instruments especially those related to the environment (agbele, ojeme, & jiang, 2019). one legal product approved by the government is law number 32 year 2009 concerning environmental protection and management. the law, which took effect in october 2009 and is listed in the republic of indonesia state gazette number 140 of 2009, replaces the role of law number 23 of 1997 concerning environmental management. law number 32 of 2009 is believed to have a more comprehensive level of comprehensiveness and discussion when compared to law number 23 of 1997. local wisdom is a cultural identity or personality. these identities and personalities naturally adjust to the viewpoints of the surrounding community so that values are not shifted, meaning that local wisdom is one of the means in cultivating culture and defending themselves from unfamiliar foreign cultures (avriel-avni, avni, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 37 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia babad, & meroz, 2019). in addition, it can be interpreted as a way of life and knowledge as well as a variety of life strategies in the form of activities carried out by local communities in answering various problems in meeting their needs. broadly speaking, this local wisdom arises from ideas that arise and develop continuously in a society in the form of customs and daily habits (delebarre, chiaverini, vandersteen, & savoldelli, 2019). awareness of the importance of maintaining environmental balance is not a new thing for us. long before the regulation, our ancestors had the wisdom to preserve the environment in their own way in accordance with the way of thinking and traditions that took place in his day, has been able to create ways and media to preserve environmental balance natural. environmental management is now the government's business and responsibility (asiyanbi, ogar, & akintoye, 2019). through regional autonomy in accordance with law no. 23 of 2014 concerning the implementation of regional autonomy, local governments are given power and authority from the central government to regulate and manage their own regions (akgün, 2020). specifically in relation to regional autonomy, regional autonomy provides a great possibility for better environmental management. thus the region can make policies that are environmentally sound (adu-gyamfi, 2020). as one of the regencies in central java province, kendal regency has quite good regional characteristics and is promising to be developed in various development sectors. this is because kendal regency is one of the regencies located in the main route of the north coast of java or better known as the pantura area (kumar, gaur, zhan, & luo, 2018). the location of kendal regency, which borders directly with semarang city as the capital of central java province, has more or less had an influence on the development of kendal regency. there are a lot of potentials in kendal regency which are basically still managed irregularly. in fact it was revealed that in managing the potential of the community not yet thinking of business or commercial, but rather emphasizing the adequacy of meeting family needs (kons, steinbach, & kivestu, 2016). the technology used is simple technology. such conditions can be related to the relatively low level of community education and the tendency of the nature of the villagers to accept the conditions as they are (forester, 2019). the problem of human resources and manpower that is less than optimal in the development and empowerment of human resources in kendal regency is the background of this writing to see one of the efforts of the kendal regency government in empowering and improving the economy of the community, especially rural communities through regional regulation number 3 of 2012 concerning planting trees for grooms and gives birth, which later became better known as the regional regulations of sak uwong sak uwit (susu). tree planting by the bride and groom to give birth is expected to not only function as a greening facility but also provide educational and economic value to the community. so that the program is expected to open many business opportunities and employment in villages in kendal regency (immink, sperna weiland, van den dool, van der ster, & hollmann, 2019). this regional regulations was born as a form of kendal district government concern, towards the environment and kendal community as a means of environmental education and community economy, as well http://creativecommons.org/licenses/by-nc-sa/4.0/ 38 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as a form of community empowerment in kendal regency. in article 2 of this regional regulation explained that, this regional regulation is intended to reduce global warming caused by carbon dioxide gas emissions and the greenhouse effect, and to empower rural communities to drive rural economic efforts (elangovan & suddaby, 2019). for this reason, this regulation is expected to be able to achieve the objectives referred to in article 3, namely to: a. greening in the regions; greening in the area here is reforestation in kendal regency through trees planted by the community. the regulation explains that every bride and groom giving birth must plant hard-stemmed fruit trees; produce fruit; has economic value; and function as a shelter on land owned by pre-brides or on open space provided by the local village government, except for people who cannot afford it (iwamoto & ueyama, 2018). b. empower regional communities; the regional regulation previously explained also aims to empower and improve the economy of the kendal community. form of empowerment here is divided into two, namely: (1) community empowerment in the environmental field; and (2) community empowerment in the economic field. community empowerment in the field of environment is to provide education to the kendal community about the importance of protecting the environment, especially trees (kaffine, 2019). through trees there are many benefits that can be obtained by the community such as shade, fresh and clean air, and even improve the economy if managed properly. through this regional regulation, it is hoped that kendal people will be more concerned with the existence of trees and the wider environment, so that kendal regency will be created in a way of cooperation. then the second form of empowerment is the economic empowerment of the kendal community, especially rural communities in kendal regency (efferth, xu, & lee, 2019). the obligation to plant fruit trees for the bride and groom to give birth is intended so that fruit trees that have been planted can produce fruits of economic value that can help the economy of the grower community itself. so that it can drive new economic activities and open new jobs. c. creating new jobs; and in accordance with the implementation of this regional regulation in a real and consistent manner it is expected to create new jobs in kendal. for example, by implementing a tree planting policy, the need for tree seedlings increases, tree seed entrepreneurs themselves need various materials such as fertilizers, polybags and so on to produce tree seedlings that are ready for sale (peleg, bodas, shenhar, & adini, 2018). this is where new jobs are created which will absorb the existing workforce in kendal district, so that unemployment and lack of employment in kendal can be overcome. the real expected outcome is the creation of new entrepreneurs in kendal regency and automatically creates a variety of choices and types of new jobs (pretorius, mathews, maré, kleingeld, & van rensburg, 2019). d. driving regional economic ventures. the latest implementation of this regional regulation aims to improve the economy of the kendal community, and to move the existing economic businesses http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 39 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia better. the bride and groom giving birth who planted in the village bondo or ex village bondo and already have a tree planting certificate (sertifikat tanam pohon, hereinafter as stp), in this regulation explained that they are entitled to take the results of the fruit tree. the results of the fruit trees can be accommodated in advance by village cooperatives formed by the village government. besides that, pre-brides and her mother who already have stp, are also members of the cooperative (mayor, 2019). the wisdom and knowledge systems and ideal models of traditional technologies that still need to be explored and studied, because many of them have positive implications for environmentally sound development programs (nguyen, truong, rockwood, & tran le, 2019). knowing their perceptions about the environment will provide input for efforts to preserve, preserve and improve the quality of the environment in rural areas while remaining grounded in the community's legal awareness of the traditional wisdom that they have had for generations (doormann, reyes-garcı, & martin-lopez, 2019). the formulation of the problems in this study are (1) how environmental protection based on local wisdom in the implementation of sak uwong sak uwit based on regional regulation number 3 of 2012 in kendal regency. (2) how to supervise the implementation of sak uwong sak uwit (susu) based on local regulation no. 3 of 2012 concerning tree planting for prebrides and mothers giving birth in kendal regency. i. theoretical basis a. theory of the law system of perspective lawrence m. friedman the theory about the elements of the legal system put forward by friedman (2013: 12) is well known for the elements of the legal system (three elements law system). according to him, in a country that implements a legal system, there must be at least three elements that will be used as the basis or foundation for the country's legal system to be strong. the three elements are: legal structure (legal structure), legal substance (legal substance), legal culture (legal culture). the legal structure is the entire existing legal institutions and their apparatuses, including the police and police officers, prosecutors with prosecutors, courts and judges, and others (friedman. terj khozim, 2009: 204). in short according to the author, the structure is law enforcement agencies, such as the mayor and his apparatus / skpd. b. monitoring theory monitoring is one function in management to ensure that the implementation of work runs according to standards set in the plan. siagian in syafi'i (2008) said that monitoring is the process of observing the implementation of all organizational activities to ensure that all work carried out in accordance with a predetermined plan. saragih (2010) states that supervision is the activity of managers who strive for work to be carried out in accordance with predetermined plans and or desired results. while reksohadiprodjo (2011) states that supervision is an effort to give instructions http://creativecommons.org/licenses/by-nc-sa/4.0/ 40 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia to the implementers so that they always act according to plan. another opinion regarding supervision is stated by hasibuan (2011) which states that supervision is the activity of a leader who strives for work to be carried out according to plan. in the indonesian dictionary (kbbi) the term "oversight comes from the word alert which means to pay close attention, in the sense of looking at things accurate and exact, there are no more activities except to give reports based on the actual reality of what is being watched" (sujamto, 1986). in general, the organization of public organizations is needed to ensure that the implementation of government activities runs in accordance with the plan and in accordance with applicable laws and regulations. implementation of supervision at government agencies will require the existence of the chairperson or head of field as a subject in conducting supervisory activities to his subordinates (moreda, 2018). based on these experts, it can be concluded that supervision is the leadership activities of each organization that makes sure that the work is carried out in accordance with the plans set or the desired results by supervising the work carried out by subordinates (mahapatra et al., 2019). c. theory of coaching according to widjaja coaching is a process or development that includes sequences of understanding, beginning with establishing, needing, maintaining that growth accompanied by efforts to improve, perfect, and develop (wong, campos-baniak, & sharma, 2019). according to janus sidabalok in his book legal protection in indonesia coaching implies assistance, guidance, and assistance for businesses and the consumer community so that he can survive and always grow towards a better direction through the achievement of good performance. in that condition, the business actor can fulfill his obligations well (janus, 2006). with the establishment of the implementation of the sak uwong sak uwit (susu) regional regulation, it can increase public understanding and awareness, both attitude awareness and responsibility in every activity required by the local government so that it will minimize the effectiveness of this regulation (lehrer, juhl, & gschwend, 2019). the task of coaching is in accordance with regional regulation no. 3 of 2012 carried out by the regent or related technical office. method the method used in this study is a qualitative research method. qualitative research is research that intends to understand the phenomena about what is experienced by research subjects. this research is a research procedure that produces descriptive data, such as what is stated by respondents in writing or verbally and real behavior. what is researched and studied is a whole object of research, as long as it concerns humans. thus, then by using a qualitative approach, a researcher primarily aims to understand or comprehend the symptoms being examined (soekanto, 2012; arifin, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 41 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia waspiah & latifiani, 2018)). research with this method serves to more easily understand phenomena that occur in society that are not yet widely known so that the phenomena in this research can have a positive impact on governments, academics, students and the community. researchers in this case, want to see clearly on how effective regional regulation no. 3 of 2012 on planting trees for prebrides and mothers giving birth in their implementation has been implemented or not in pegandon village, pegandon district, kendal regency. this research will be carried out maximally with a view to obtaining complete and truthful data (soekanto, 2005). therefore, the type of research the writer will use is juridical-sociological. the workings of this sociological or empirical method are the results of the collection and discovery of data and information through a literature study of the basic assumptions or assumptions used in answering problems in thesis research. number 3 of 2012 concerning planting trees for prebrides and mothers. the type of data used in this study are primary and secondary data (wan, williamson, & pandit, 2019; arifin, waspiah & latifiani, 2018). this research activity certainly requires a place of research that will serve as a background to obtain the data needed to support the achievement of research objectives (wiwanitkit, 2019). determination of the place of research is related to the existence of data or information in accordance with the objectives of the study. this research is planned to be carried out at the community and village empowerment office, religious affairs office pegandon district, pegandon village hall, and the residence of pegandoni village community leaders, pegandon district kendal regency. techniques and data collection in this study were interviews, observation. checking the validity of the data is done by triangulation techniques, there are several types of triangulation techniques namely sources, methods, researchers and theories (yang et al., 2019). triangulation with "source" means comparing and checking back the confidence of information obtained through different time and tools. this can be achieved by: comparing observational data with interview data; comparing what others say in public with what is said in private; comparing one's perspective and perspective with various opinions and views of people such as ordinary people, people with secondary and higher education, people who are and people in government; comparing the results of the interview with a related document (amirudin and zainal asikin: 2006, 98). the author compares theories with interview results. in conclusion, because the most widely used triangulation technique is examination through other sources, the authors only use triangulation with sources. this study processes data in four stages, namely data collection, data reduction, data presentation and conclusions. the four components affect and are interrelated(weng, hsu, & liu, 2019). first, researchers conduct research in the field using interviews called the data collection stage. because the data collected is a lot then a data reduction is held, after being reduced then a data presentation is held, in addition to that the data collection is also used for data presentation. when both stages are completed, a conclusion is drawn (wei, 2019). the data collected in this research is obtained through research conducted through interviews and documents (ramirez, ravetz, sharpe, & varley, 2019). these data pertain to the focus of the research, namely environmental protection based on local wisdom in the http://creativecommons.org/licenses/by-nc-sa/4.0/ 42 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia implementation of sak uwong sak uwit based on regional regulation number 3 of 2012 in kendal regency. sak uwong sak uwit and environmental law reform i. environmental protection based on local wisdom in the implementation of sak uwong sak uwit based on regional regulation number 3 of 2012 in kendal regency according to the results of research in pegandon village, pegandon sub-district, kendal regency, researchers found data regarding the implementation of the sak uwong sak uwit (susu) regional policy which was intended for brides and grooms. according to data from a study conducted in pegandon village pegandon district kendal regency researchers observed the opinion of the head of field ii village social culture empowerment and the development of community and village empowerment institutions and community and village empowerment agency, head of religious affairs office pegandon district, village head, village apparatus, and figures the community, regarding the regional regulations sak uwong sak uwit (susu), which concerns tree planting for brides and grooms giving birth when applied in pegandon village, has factors that influence its implementation in the pegandon village. the implementation of sak uwong sak uwit (susu) based on regional regulation number 3 of 2012 concerning planting trees for pre-bride and child giving birth has been implemented at the beginning of this regulation. with the passage of time and the change of regional head, this regulation is no longer implemented. regional regulation number 3 of 2012 concerning planting trees for prebrides and gives birth in kendal district, pegandon village communities in general already know the program commonly referred to as this susu regional regulation. pegandon village community pegandon district kendal regency does not agree with regional regulations on tree planting for brides and grooms giving birth for various reasons including the added cost of buying trees, limited land and lost tree yields during harvest time. in addition, the lack of regular socialization from the government, hampered the course of this program because the community did not know very well how to implement tree planting and there was no legal certainty which was realized in the form of binding sanctions. besides that, there are no bureaucratic structure (sop (standard operation procedure) that governs the implementation procedures. according to friedman, he argues about legal culture, legal culture concerns legal culture, which is a human attitude (including the legal culture of law enforcement officials). simply put, as well as structuring the legal structure to carry http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 43 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia out the established legal rules and made without the support of legal culture by the people involved in the system and society, law enforcement will not run optimally or effectively. law as a tool to change society or social engineering is nothing but ideas that the law wants to realize. to guarantee the achievement of the legal function as a better engineered society, not only is the availability of law in terms of rules or regulations needed, but also guarantees for the realization of the rule of law, or in other words, a guarantee for law enforcement. good (munir fuady, 2003: 40). in general, the pegandon village community does not agree with the regional regulations sak uwong sak uwit (susu) which is intended for brides and grooms giving birth due to various factors that have been summarized through the results of the above research. ii. monitoring of the implementation of sak uwong sak uwit (susu) based on regional regulation number 3 of 2012 concerning planting trees for prospective bride and child giving birth in kendal regency the kendal regency community and village empowerment service (dispermasdes) is a government agency that is authorized and responsible for carrying out the process of fostering and controlling conditions related to the sak uwong sak uwit regional regulation (susu), in accordance with article 12 of local regulation no. 3 of 2012 concerning planting trees for grooms and gives birth. the kendal regency community and village empowerment agency (dispermasdes) has hr support consisting of: number of structural position human resources (hr): 1. agency head (es. ii / b) : 1 person 2. head of division (es. iii.b) : 4 people 3. head of subdivisions (es. iv.a) : 3 people 4. head of sub division (es. iv.a) : 8 people total human resources (hr) by rank: 1. junior administrator (iv / c) : 1 person 2. first class administrator (iv / b) : 1 person 3. administrator (iv / a) : 7 people 4. first class superintendent (iii / d) : 7 people 5. superintendent (iii / c) : 7 people 6. first class junior superintendent (iii / b) : 10 people 7. junior superintendent (iii / a) : 2 people 8. first class supervisor (ii / b) : 2 people 9. supervisor (ii / c) : 2 people http://creativecommons.org/licenses/by-nc-sa/4.0/ 44 journal of law & legal reform volume 1(1) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 10. first class junior supervisor (ii / b) : 4 people 11. junior supervisor (ii / a) : 1 person 12. non-permanent employees (ptt) : 1 person total human resources (hr) by education level: 1. postgraduate (s2) : 5 people 2. bachelor (s1) : 21 people 3. expert (d4) : 0 people 4. associate expert (d3) : 5 people 5. senior high school : 14 people 6. junior high school : 0 people 7. elementary school : 0 people total amount : 45 people kendal dispermasdes played a role in coordinating government programs by conducting socialization in each district of kendal regency. in accordance with what was stated by mr. amin fatoni, s.e., m.t head of division ii: "institutionally dispermasdes oversees full socialization until the implementation of activities. for our own socialization, we have done it in every district by presenting community leaders, religious affairs office employees and village parties "(interview 31 october 2012). based on the results of observations in the field, researchers found several phenomena that showed that the implementation of supervision and coaching had not been carried out optimally. this is shown from the statements of the components of the village community and related institutions that the authors studied, namely in pegandon village, pegandon district, kendal regency. regional regulation number 3 of 2012 precisely in article 12 which mentions guidance and supervision cannot be carried out optimally, due to the lack of clarity in the bureaucratic structure in this program and the absence of sop (standard operational procedure). the lack of supervision of the implementation of tree planting for brides and grooms gives birth to the community easily ignores the obligations that should be carried out according to existing regulations. according to siagian in the supervision theory the book quote from ir. sujamto titled some understanding in the field of supervision, the government should carry out a process of observing the implementation of all activities carried out by the office of community empowerment and the village of kendal regency, this is to ensure that all work is carried out in accordance with the previously agreed provisions. according to the guiding theory that mangunhardjono said, the government must also carry out an informative, participatory and experimental approach. so that all of the local government programs run effectively and efficiently. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(1) 2020 45 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conclusion based on the results of research and discussion, the researcher can conclude as follows: the implementation of sak uwong sak uwit (susu) based on regional regulation number 3 of 2012 concerning planting trees for prospective brides and gives birth has been implemented at the beginning of this regulation. with the passage of time and the change of regional head, this regulation is no longer implemented. regional regulation number 3 of 2012 concerning planting trees for prospective brides and gives birth in kendal district, pegandon village communities in general already know the program commonly referred to as this susu regional regulations. pegandon village community pegandon district kendal regency does not agree with regional regulations on tree planting for brides and grooms giving birth for various reasons including the added cost of buying trees, limited land and lost tree yields during harvest time. in addition, the lack of regular socialization from the government hampered the course of this program because the community did not know very well how to implement tree planting and there was no legal certainty which was realized in the form of binding sanctions. oversight is carried out by the kendal district community and village empowerment office even though it is stated in article 12 of regulation no. 3 of 2012 concerning planting trees for prospective brides and gives birth but this has not been realized properly. rules that state guidance and supervision cannot be implemented because of the lack of clarity in the bureaucratic structure in this program and the absence of sop (standard operational procedure). the lack of supervision of the implementation of tree planting for brides and grooms gives birth to the community easily ignores the obligations that should be carried out according to existing regulations. references adu-gyamfi, a. 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(2019). coveting neighbors’ wisdom promotes cooperation in structured populations. chaos, solitons and fractals, 122, 202–205. https://doi.org/10.1016/j.chaos.2019.03.023 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 17 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 1, january 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: august 2021 revised: october 2021 accepted: december 2021 how to cite: awotayo, o. o., & akinrinde, o. o. (2022). religious conflict and arms proliferation in the security law reform. journal of law and legal reform, 3(1), 17-38. https://doi.org/10.15294/jllr.v3i1.49238 © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article religious conflicts and arms proliferation in the security law reform olagoke oluwafemi awotayo1 , olawale olufemi akinrinde2 1,2 osun state university, oke bale street, osogbo, nigeria  olawale.akinrinde@uniosun.edu.ng abstract the relationship between small arms and light weapons, religious crises, and insecurity has continued to be a burning issue in the national security discourse in nigeria. religious organizations under the guise of spreading their beliefs now engage in the laundering of donations by members on acquisitions of small and arms and light weapons to protect their jurisdictions and ward off other perceived oppositions. there is no doubt http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i1.49238 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 https://orcid.org/0000-0001-7350-2376 https://orcid.org/0000-0001-7350-2376 18 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that the laundering operations and arms acquisitions by religious organizations in the country are slightly different in scope and activity, although no less complex and hard to detect unless put under the searchlight. however, the effects of this are manifested in the escalation of insecurity and religious crises as evidenced in incessant killings, maiming of innocent citizens, and wanton destruction of properties in the country. this paper observes that the uncontrollable proliferation of arms fuel and prolong religious crises, and has created economic, socio-political crises and a huge burden of humanitarian cost in all facets of the polity. the paper concludes that it has become imperative to address this phenomenon as the emerging scenario no doubt continues to threaten the achievement of sustainable development goals in the country. keywords: religious conflicts; arms proliferation; money laundering, insecurity; sustainable development goals introduction the relationship between small arms and light weapons, religious crises, and insecurity in nigeria has continued to be a burning issue in the national security discourse in nigeria. small arms proliferation, ethnoreligious conflict, banditry, and underdevelopment are multidimensional and interconnected social problems that have bedeviled and undermined progress in many countries across africa. nigeria has been laced with a series of armed violence, conflict of various forms and types, violent crimes, and a series of deadly attacks by religious sect groups. in the further context, some studies generally agreed that the proliferation of small arms and light weapons poses serious challenges to national security. it was also agreed that the availability of small arms has direct causation on the escalation of insecurity in nigeria.1 this is evinced in recent times, 1 nelson alusala, “lessons from small arms and weapons control initiatives in africa.” (2016): 33. working paper 1, 2016. see also z. b. peterside, “the impacts of proliferation of small arms and light weapons on the quest for national security in http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 19 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia violent communal and religious conflicts have become obvious features of social life in nigeria and thereby pose a greater danger to the very fragile cooperative existence in the country. these conflicts result from different value systems. conflicts in this respect, especially in the northern part of the country, vary not only in scope but also in intensity and nature, and have great consequences on human lives, leaving many dead and millions of people displaced. the indiscriminate use of small arms and light weapons is not only a mere security issue, but also a threat to human rights and development in nigeria and across african states. it has caused untold atrocities, including deaths, sexual violence, displacement, shattered communities, and loss of hope for a decent standard of living. ecosap (2007) noted that global experts estimate that at least 500,000 people die every year, on average, and millions more are displaced and abused as a result of armed violence and conflict. the unabating religious conflict in nigeria has destabilizing effects and is linked to the proliferation of arms, and it has greatly become visible in recent times as nigeria is divided along ethnic and religious lines. it is a truism that religious conflict has become a global trend and has turned into a global phenomenon. the effect of this globalization has caught nigeria on the web in the area of insecurity and development. however, the effect and control of religious conflict differ from one country to another. insecurity has affected nigerians in no small measure, and it seems that the government is overwhelmed. the rate of incessant killings and bombings has become a daily occurrence. the government's responses to this security issue remain unimpressive. it seems that the government is static and stuck within the confines of this religious fundamentalist and criminals who daily perpetrate their dastardly acts are not being brought to book. the nexus between religious conflict, the proliferation of arms, security, and development have become much better recognized and understood over the past decade, and it is now widely accepted that the work of sustainable development is under threat from recurrent religious violent conflicts. religious violent conflicts in nigeria are capable of erasing decades of development progress and further entrenching poverty and inequality. the linkage between peace and development speaks to the nigeria.” saudi journal of humanities and social sciences 3, no.7 (2018): 852-860; ogaba oche, the proliferation of small arms and light weapons. fog ventures, 2005. a research project submitted to the national war college, abuja. http://creativecommons.org/licenses/by-nc-sa/4.0/ 20 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia core development mandates of poverty eradication, enhanced human security, inclusion, and governance in an atmosphere that is devoid of religious acrimony, and where religious tolerance is the order that reigns supreme.2 unodc (2010) put it that west africa is a haven for organized crime, offering ideal conducive environments for trafficking contraband: a strategic location, porous borders, weak governance, widespread poverty, and extensive corruption. as a result, criminals and insurgents are exploiting the region to perpetrate these crimes. onuoha emphsized that arm transmitted into the country can be measured under two broad dimensions, which include transnational and national trafficking. transnational trafficking refers to movement across the borders of sovereign states, while national trafficking refers to the movement or smuggling of small arms and light weapons within a national territory. for the unodc (2010), west africa serves as a transit hub between latin america and europe for us $1 billion worth of cocaine, as a destination for counterfeit medicines and toxic waste, and as a source of stolen natural resources, particularly oil. human trafficking, whether for forced labour or sexual exploitation, also occurs in the region.3 adeniyi noted that the rate at which new conflicts are emerging and increasingly putting lives under threat needs serious attention. apart from conventional violent conflict, non-conventional threats are evolving, such as the spread of violent extremist groups in numerous locations in africa.4 he further stated that this spread has been enabled by the unregulated flow of arms, among other socio-economic and political factors. in addition to that, there are proxy wars that are also taking lives, dividing communities, and bringing about prolonged suffering. rana put it that 300 companies in over 50 countries are into manufacturing small arms, equipment, and other accessories. this represents an increase in the percentage of the known number of 2 mutiullah olasupo, and onwuagana okafor. “money laundering and terrorist financing: policy implication for achieving sustainable development goals (sdgs) in west africa.” iosr journal of humanities and social science 23, no. 2 (2018): 10-18. 3 freedom c. onuoha, “oil pipeline sabotage in nigeria: dimensions, actors and implications for national security.” african security review 17, no. 3 (2008): 99-115. see also freedom c. onuoha, “porous borders and boko haram’s arms smuggling operations in nigeria.” al jazeera center for studies 8 (2013). 4 adesoji adeniyi, the human cost of uncontrolled arms in africa: cross-national research on seven african countries. oxfam, 2017. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 21 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia manufacturing countries as compared to ten years earlier.5 those that were in the business of importing small arms have started domestic production through reverse engineering, licenses for coproduction with suppliers, and turn-key production arrangements between sellers and clients. china alone has 16 factories producing small arms. because of this, china currently has the world's largest industrial capacity for producing infantry weapons. the proliferation and destructive impacts of illegal small arms on religious conflicts is an indication that arms do not proliferate in a peaceful environment, but conflicts are the basis upon which the desire for accumulation of arms is nurtured and proliferates given the law of demand and supply. when there are demands there, supply is inevitable. method this paper observes that the uncontrollable proliferation of arms fuel and prolong religious crises, and has created economic, socio-political crises and a huge burden of humanitarian cost in all facets of the polity. the paper concludes that it has become imperative to address this phenomenon as the emerging scenario no doubt continues to threaten the achievement of sustainable development goals in the country. result & discussion this part, authors explore and examines some of problems and challenges on religious crisis and the impact on security law reform in nigeria. this part also describes the impact for the conflict and crisis into sustainable development in nigeria. 5 swadesh rana, small arms and intra-state conflicts. no. 34. un, 1995. http://creativecommons.org/licenses/by-nc-sa/4.0/ 22 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia i. religious violence & the proliferation of arms in nigeria: towards a conceptual framing the immigration and refugee board of canada holds the opinion that the current religious crisis in nigeria has a cause that is complex and intricately linked together. the board noted that the rise of religious fundamentalism, particularly that of islam, coupled with the religious cards played by elements of the political and economic elite, and this play out in all levels of governments' particular religious situations, have all contributed to the escalation of religious conflicts. ellis and haar describe religion as a new political language whose pattern of interaction cannot be overlooked in the study of african politics, especially nigeria.6 otite, in his view, opined that in a democratic situation such as nigeria, ethnicity and religion become weapons of power game as a symbolic difference and an instrumental game of number. this is also a causal factor to the rise of the ethnoreligious crisis in nigeria's political space, especially in a democratic dispensation.7 fox and sandler, in the vein, agree that religion is a potent force in the activities of not only nonstate actors but also the state herself. this influence is bi-directional: it can promote both peace and war. they, however, stated further that this dual purpose of religion does not mean discarding religion as a mere instrument, but it is used by the government or opposition because of its power to mobilize people and to get domestic and international support. ushe notes that the persistent religious conflicts and insecurity in nigeria have given meaningful nigerians a cause for deep concern in recent times. many of them wonder why religion, which used to be the cohesive factor and core of national unity, peaceful co-existence, and 6 stephen ellis, and gerrie ter haar. “religion and politics: taking african epistemologies seriously.” the journal of modern african studies 45, no. 3 (2007): 385401 7 onigu otite, ethnic pluralism ethnicity and ethnic conflict in nigeria: (with comparative materials). shaneson, 2000. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 23 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia national development, has become a tool for political manipulation, violence, and destruction of lives and property in nigeria in contemporary times.8 olojo puts it that in nigeria, there appears to be an almost seamless connection between several violent incidents from the 1960s through the decades up to the current period. and at different phases in this historical trajectory, the controversy between muslims and christians over the definition and interpretation of 'secularity', for instance, has offered opportunities for analysts to gauge what they see as opposed to the platforms of muslims against christians in nigeria.9 olojo further submitted that most of this muslim and christian involvement in the trend of violent deaths. however, there are instances where violent deaths are not underscored by religious issues between muslims and christians. there are cases where violent deaths transpire between groups of the same religious faith. some religious leaders, through their dogmatic teachings and narrow-minded and intolerant predilections, advocate social exclusion for their followers.10 many of the violent conflicts in the world today involve religious animosities. indeed, the history of encounters between the world’s religions is filled with distrust and hatred, violence, and vengeance. the deepest tragedy of the history of religions is that the very movements that should bring human beings closer to each other and their ultimate source and goal have time and again become forces of division. in one conflict after another around the world, religious convictions and interpretations of revelation have been abused as justification for violence.11 ekpang, in his submission, opined that religion also appears as a major factor for instability in certain african countries. christianity and islam are the two major religions on the continent. both religions preach peace. but certain politicians and elites seek to make use of religion to promote disorder and 8 ushe mike. “religious conflicts and education in nigeria: implications for national security.” journal of education and practice 6, no. 2 (2015): 117-129 9 akinola ejodame olojo, “muslims, christians and religious violence in nigeria: patterns and mapping (june 2006-may 2014).” ifra-nigeria working papers series 32 (2014). see also akinola ejodame olojo, “muslims, christians and religious violence in nigeria: patterns and mapping (2006-2014)." violence in nigeria: a qualitative and quantitative analysis (2016): 91-110. 10 akinola ejodame olojo, 2014. 11 john azumah, “my neighbour’s faith.” islam explained for christians. nairobi: hippobooks (2008): 146. http://creativecommons.org/licenses/by-nc-sa/4.0/ 24 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia violence. with the politicization of religion, a country as volatile as nigeria spells doom if care is not taken.12 the proliferation of small arms and light weapons is principally a consequence of conflicts, mostly religious conflicts, where warring groups require arms to protect themselves from the perceived enemy. likewise, other criminal elements require arms to protect their interests while carrying out their nefarious activities. hence, one can submit that conflicts are a major vehicle for both legal and illegal transfer of small arms and light weapons. stohl & hogendoorn noted that the proliferation of salw is not a local problem, but a global problem. over 875 million small arms are estimated to be in circulation the world over, with a significant proportion of them illegally in the hands of non-state actors and civilians.13 kofi annan, while lamenting the issue of illicit transfer of small arms, noted that the uncontrolled proliferation of small arms, light weapons, and the use of mercenaries promote conflicts, exacerbate violence, fuel crime, and terrorism, and promote a culture of violence. national security threats to nigeria include small arms proliferation.14 it is one among many other threats, including refugees, religious and political fundamentalism, terrorism, hiv/aids, drug trafficking, and environmental degradation. saroja noted that the illegal local production of firearms poses a serious security threat. however, it receives little or no attention. indigenous manufactured weapons are always cheap, and while their accuracy cannot be guaranteed, they are highly destructive and impossible to trace using ballistic fingerprinting.15 peterside submits that, apart from the fact that nigeria is a transit and destination for salw, it is also a local manufacturer of these small arms. this was given credence by the presidential committee on small arms and 12 b. m. ekpang, “for a culture of peace in west africa." combating the proliferation of small arms and light weapons in west africa: a handbook for the training of armed and security forces (2005). 13 rachel j. stohl, and ernst jan hogendoorn. stopping the destructive spread of small arms: how small arms and light weapons proliferation undermines security and development. center for american progress, 2010. 14 kofi annan, “un security council takes aim at illegal arms proliferation in africa.” (2003). 15 b. saroja, “proliferation of small arms in south asia: an arc of instability.” international journal of social science & interdisciplinary research. 1, no. 12 (2012): 152-161. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 25 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia light weapons in 2015 when it was confirmed that 60 percent of all illicit arms used in the south-east were locally fabricated.16 saroja again noted that small arms are widely available and accessible. they are not costly and durable and can be reused in one conflict zone after another. this has made them weapons readily available for traditional and non-state combatants who do not have access to larger weapons. in conflicts, the proliferation of weapons in the hands of new and often undisciplined groups has outpaced efforts to ensure compliance with the basic rules of warfare and has led to a deteriorating situation for civilians. nigeria has both strengths and weaknesses in its control initiative efforts to mitigate the salw challenge.17 consequently, unraveling the impact of small arms on nigerian citizens, society and the state is vital to sensitize and guarantee the preparedness of the nigerian security architecture as it will be equipped with the intelligence and know how to deal with the menace of the proliferation of small arms. the conflicts between farmers and herders over land and water in nigeria have been existent for many years, even outdated the entity called nigeria, and have over the years turned deadly due to the availability and accessibility of small arms. the large-scale intrastate conflicts in nigeria have fed the ready availability of small arms to pastoral communities in the region. the prevalence of small arms protracted these harder/farmer conflicts and complicated and rendered useless the traditional methods of peaceful conflict resolution. ii. radicalization & religious violent extremism and proliferation of arms religious intolerance means the inability of some to tolerate the weaknesses or deviant behaviors of other groups, while fanaticism, on the 16 z. b. peterside, “the impacts of proliferation of small arms and light weapons on the quest for national security in nigeria.” saudi journal of humanities and social sciences 3, no. 7 (2018): 852-860. 17 b. saroja, 2012 http://creativecommons.org/licenses/by-nc-sa/4.0/ 26 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia other hand, is wildly excessive or irrational devotion, dedication, or enthusiasm about one’s religious belief. when these two factors fester in any country, tension, discord, hostility, violence, and confrontations are bound to pervade. the continuing polarization and proliferation of doctrines among the major religions in nigeria has bred more tension and has led to the stockpiling of arms. adeniyi, in his own view, put it that the increase in growth and activities of religious groups all over the country has brought to the fore radical extremist ideologies which have festered the spread and use of illicit arms in africa.18 the availability of salw by extremist groups has negatively impacted on security in the west, horn and north africa. he posits further that the manner in which they openly display salw is seen as a requisite element in the identity of violent extremist groups, and extremist groups appear deadlier based on salw increases in their possession. adeniyi also said that islamist militancy has recently received greater attention given the consequence of the violent attacks of boko haram, alqaeda in the islamic maghreb, al-shabaab and other similar groups operating across africa. based on undp estimates, 24,771 people were killed and 5,507 wounded between 2011 and 2015, with most of the fatalities recorded in nigeria and somalia. the porous border and swathes of ‘ungoverned spaces’ in the sahel and west africa are exploited for the illicit transfer of arms to extremist groups.19 iii. money laundering, proliferation of arms & religious crisis in nigeria olasupo and okafor opine that money laundering and terrorist financing are not new in west africa. the effect is far greater than the way literature has portrayed it due to the corrosive effect on a country’s economy, government, and social wellbeing.20 international reports such as the fatf 18 adesoji adeniyi, 2017 19 adesoji adeniyi, 2017 20 mutiullah olasupo, and onwuagana okafor. “money laundering and terrorist financing: policy implication for achieving sustainable development goals (sdgs) in west africa.” iosr journal of humanities and social science 23, no. 2 (2018): 10-18. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 27 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2006 giaba report said that the illicit trade in firearms generates vast sums of revenue valued at $53 million annually. nasir 2017 noted that money laundry has grown sophisticated. there is a nexus between money laundering and financing the arms trade. laundered money is mostly hidden under the globalization of trade and the product of technological breakthroughs in transferring huge funds. both criminal groups and terrorist organizations take advantage of the non-compliance of banks in most african countries to anti-money laundering to operate. nasir 2017 noted that banks play a major role in the application of anti-money laundering and counter financing terrorism (aml and cft) prevention, but not much has been achieved with the level of banks' compliance with the extant legislation and frameworks. however, money laundering, use of terrorism and other transnational crimes, including illicit trading of arms, are far different activities. in most cases, the money is clean, such as donations to charities or gathered through religious tithing, but it will end up being used to fuel the terror operation in some manner. omitola and awotayo, in their own view, noted that money laundering operations are slightly different in scope and activity, although they are complex and mostly hard to detect if not put under the microscope of financial forensic experts. both criminal groups and terrorist organizations take advantage of the weak legislature and control initiatives in the area of jurisdiction. funding through islamic donations (e.g. zakat) is one of the most abused methods by designated terrorist groups operating in west and central africa. this means requires little infrastructure and is huge because it manipulates a common practice of the muslim population as it is an injunction, one of the five pillars of islam. however, the use of these donations to commit violent extremism is unknown to the donor, and regional authorities are unable to control or monitor these movements of money, which are commonly comprised because of the minute nature of the amounts involved. however, this is not to say that some supporters of extremist groups do not also knowingly and willfully finance the activities of the organization with donations. however, all these means are sometimes exploited to finance terrorist organizations and it is difficult for authorities to control them because religious organizations' accounts are not audited and controlled by the government. an attempt by the nigerian government to regulate the finances of the religious body has been greeted with opposition. http://creativecommons.org/licenses/by-nc-sa/4.0/ 28 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia criminals maneuver money across borders, gaining from banks in countries with weak anti-laundering and counter terrorism finance policies. in the same vein, when criminals take control of financial institutions or hold managerial executive positions, countries may find it pretty difficult to detect and stop money laundering. the regulatory agencies should be up and doing with respect to fishing out criminals from financial institutions. fatf recommendation 23 provides that financial institutions should be subject to adequate supervision and regulation to ascertain that they are effectively implementing the fatf recommendations. given the faft recommendations and the nigeria situation, having a regulation in place is not synonymous with enforcement. the outcry of the end sar protest is given credence to the above; the police who are supposed to enforce the law are actually the lawbreakers, coupled with the weak structure of government agencies and a dependent, corrupt, and weak justice system. malhotra opined that the linkage of banks with the internet has posed a new challenge in the area of combating financial crime. the digitalization of money has made it prone to criminality.21 however, it doesn’t rule out the fact that it has greater benefits for the world and that a global entity is driven by its benefits. he, however, decried the misapplication of digitalization for laundering processes, hacking of credit cards and check-kiting. malhotra also noted that the continuing expansion of the commercial airline and freight industries across the globe has eased transportation globally and has been instrumental in increasing penetration of arms in conflict zones.22 21 aditi malhotra, “globalization and the illicit trade of small arms and light weapons.” eurasia review (2011). 22 aditi malhotra, 2011 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 29 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia iv. religion crisis & the proliferation of arms in nigeria: implications for sustainable development generally, achieving millennium development goals remains an unfinished business for most african countries, especially in nigeria. the sustainable development goals (sdgs) capture africa's priorities for the next fifteen years. the future of growth and its impact on poverty reduction in africa will be anchored on what happens to structural transformation. a new development trajectory of structural transformation is required to ensure improving productivity as africa's industrialization takes off. this industrialization of africa requires huge investment in both human and physical capital. africa's major priorities would be greater investment in infrastructure, majorly energy; and, improvement of labour productivity, to meet the needs of manufacturing and agro industries. national development is going to be a ruse when the challenges arising from stunted economic development in nigeria present very real threats to security. the core of the sustainable security approach is to use the nexus between development and security as both a means of identifying threats to our very co-existence and a method for dealing with them. small arms and light weapons, as it were, weaken the impact of development assistance aimed at improving levels of human security and engendering development. development projects that have involved years of planning and implementation and multi-million naira can be destroyed just because religion is intolerant. ibrahim and azubuike argue that underdevelopment threatens human security and exposes a large number of people to poverty, illness, and poor political and economic recession. the stockholm international peace research institute (sipri) in 2015 noted that the consequences of conflict, especially civil conflicts, for development are profound. armed conflict often leads to forced migration, long-term refugee problems, and the destruction of infrastructure. social, political, and economic institutions are permanently damaged. the implications of all these on development are enormous and devastating. as noted, internally http://creativecommons.org/licenses/by-nc-sa/4.0/ 30 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia displaced populations have overstretched health systems of host countries to capacity, both in terms of finances and staff resources. the increased demands on services like health, education, water and sanitation are overwhelming, exposing countries to serious health risks and resulting in the loss of health-related development goals achieved with years of hard work. displacement exposes internally displaced people to new hazards and accrued vulnerability. these dynamics result in a greater risk of illness and death. most of the time, access of internally displaced persons to health care and humanitarian assistance is deliberately excluded by conflicting parties. furthermore, the arrival of idps can strain local health systems and the host population ends up sharing the sufferings of the internally displaced. the cumulative public health consequences of emergencies in the region on displaced populations are profound and enduring, affecting not only the displaced populations themselves, but also host communities, and playing a key role in determining the health security of the entire region. with injuries remaining a considerable burden among refugees, some types of wounds require costly surgical treatment and lengthy rehabilitation. agbikimi argues that scholarly debates over modernization and social change in the late twentieth century have raised far-reaching questions about the possible consequences of religious group conflict and differences in behavior, identity, and opinions.23 aver et al. view that the proliferation of arms and weapons is among the social problems retarding the development of democracy in nigeria today. this particular social problem came into being as a result of the greediness of contemporary politicians.24 23 n. a. u. agbikimi, “current trends in theories of religious studies: a clue to proliferation of religions worldwide.” global journal of arts humanities and social sciences 2, no. 7 (2014): 27-46. 24 aver et al, (2014) the proliferation of arms and its effect on the development of democracy in toyin cotties adetiba, “socio-political and economic development under threat: the proliferation of small arms and light weapons in nigeria.” greener journal of social sciences 2, no. 5 (2012): 179-189. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 31 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia v. the economic & socio-political costs of religious conflict & uncontrollable arms in nigeria the cost of religious conflicts on the proliferation of illegal small arms is alarming because arms used during ethno-religious conflicts cause injuries and maiming, create a general sense of insecurity, destruction of lives and properties, and displacement of people. furthermore, small arms contribute to deaths and injuries, killing hundreds of thousands and injuring thousands more every year. in fact, one person dies every minute from gun violence, according to the international action network on small arms, which noted that small arms are used to kill, and they are also used for forced disappearances, torture, and for sexual violence, particularly rape and forced prostitution. conflicts and violence fueled by these weapons often force large numbers of people to flee their homes, and refugees and internally displaced populations are prevented from returning home after a conflict because large numbers of weapons remain in circulation. small arms violence also contributes to psychosocial trauma, which takes much longer than physical wounds to heal.25 moussou agrees that the cost of proliferating arms is a social, economic and environmental cost. he said socially, people are in palpable fear and insecurity because certain places and times are known to be unsafe. moussou noted further that, economically, it has been observed that economic operators are reluctant to invest in an environment where violence is the order of the day. going by moussou’s assertion, it is deduced that the proliferation of arms and religious conflict drives away direct foreign investment, thereby reducing financial investment and therefore slowing down the desired development. 25 m. okiro, "proliferation of illegal arms and ethno-religious violence in nigeria." alemika, eo and chukwuma, ic crime and policing in nigeria: challenges and options. network on police reform in nigeria (2005). http://creativecommons.org/licenses/by-nc-sa/4.0/ 32 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia vi. religion crisis & proliferation arms in nigeria: the role of control initiatives the continuing massive illicit small arms and light weapons inflow through the maritime border, from the sahel through very porous northern borders, and from west africa through southwest borders. without effective controls and methods of deterrence, the already high levels of small arms and light weapons proliferation in nigeria will continue to increase, as well as insecurity among the citizens. in addition to that, is that nigeria’s firearms law is obsolete and ineffective in the face of the dynamics of 21st century security challenges. there is a need to generate a new document in collaboration with relevant agencies to cause a repeal of the firearms bill. the 1959 firearms act is obsolete. in recent times, these threats to human security are transnational and also inter-connected in nature and, therefore, require a rapid response strategy that is integrated and also transnational. omitola and awotayo noted that nigeria, like any other developing country, has no human intelligence capacity to guarantee the security of life and property of its citizens. there are obstacles to effective national and organizational intelligence service delivery to control the proliferation of arms. major of the obstacles are lack of coordination and rivalry between intelligence agencies. rivalry is a major problem which is compounded in a country like nigeria with a proliferation of security and intelligence agencies and layers of government authorities. in nigeria, the poverty rate has greater effect on the proliferation of arms and religious conflict. most religion leaders take advantage of the prevailing poverty and youth unemployment to lure them into various nefarious activities such as violent conflict. all control initiatives should factor in the alleviation of poverty. in the same vein, the absence of strong coercive law creates a vacuum and even with the existing law, there has not been political will to enforce it. closer to it is the lack of national strategies. onuoha noted that it is important to design and enforce strategies for effective coordination, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 33 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia detention, tracking, and control of small arms and light weapons, the need to beam government search light on the teachings and doctrines of the proliferation of worship houses, as most religious leaders aid and abet money laundering.26 for effective control of religious conflict and arms proliferation, there is a need for effective public education to disabuse any violent doctrines that have permeated our worship centers, prompt and peaceful resolution of conflicts before they escalate. resourcing and rigging the security architecture to deal effectively with the menace of religious conflict and the proliferation of arms. in addition to this is to increase the state government's commitments and roles in security in their states. conclusion the relationship between small arms and light weapons, religious crises, and insecurity has had a more devastating effect on our social, political, and economic wellbeing and our national security has been challenged. religious organizations under the guise of spreading their beliefs now engage in laundering of donations by members for acquisitions of small arms and light weapons to protect their jurisdictions and ward off other perceived opposition. there is no doubt that the laundering operations and arms acquisitions by religious organizations in the country are slightly different in scope and activity, although no less complex and hard to detect unless put under the search light. the growth of extremists has also increased the rate at which arms proliferate. however, the effects of this are manifested in the escalation of insecurity and religious crises, as evidenced by incessant killings, maiming of innocent citizens and wanton destruction of properties in the country. the uncontrollable proliferation of arms fuels and prolongs religious crises, and has created economic, socio-political, and humanitarian crises in all facets of the polity. the proliferation of arms and religious conflict drives away direct foreign investment, thereby reducing financial investment and therefore slowing down the desired development. the paper noted that it has become imperative to address this phenomenon as the emerging scenario no doubt continues to threaten the achievement of sustainable development goals in the country as most previous control initiatives have no national 26 freedom c. onuohona, 2008. see also freedom c. onuohona, 2013 http://creativecommons.org/licenses/by-nc-sa/4.0/ 34 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia coordinated strategies. enhance legislation is also very key to controlling the proliferation of arms because the current law is obsolete. national value reorientation is important to orientate our youth toward national integration. the open greediness and corruption of contemporary politicians, which has led to the impoverishment of many, also call for concern, because if the poor are awake, the rich will not certainly sleep. references abuja malgwi, charles a. 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"trade-based money laundering and terrorist financing." review of law & economics 5. no. 2 (2009): 855-878. zerzan, andrew. new technologies, new risks?: innovation and countering the financing of terrorism. vol. 174. world bank publications, 2009. acknowledgment none funding information none conflicting interest statement all authors declared that there is no potential conflict of interest on publishing this article. http://creativecommons.org/licenses/by-nc-sa/4.0/ 38 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. about author(s) olagoke oluwafemi owotayo is a lecturer osun state university, osogbo, nigeria. his area of expertise concerning the intersection between security studies, law and social sciences. some of his works have been published on several journals, such as relationship between head of department leadership styles and lecturers job satisfactions in nigerian public universities (asian social science, 2014). olawale olufemi akinrinde is a lecturer at the department of political sciences, osun state university, osogbo, nigeria. some of his recent publications such as nigerian political elites and the covid-19 pandemic’s management deficits: implications for national economic and sustainable development (administrative law & governance journal, 2021), an empirical-causative analysis of the politics of xenophobia in south africa (law research review quarterly, 2021), political crisis and the politics of religious divisiveness in nigeria’s fourth republic (the digest: journal of jurisprudence & legisprudence, 2021), human insecurities in afrika, the politics of non-refoulement and the plights of the african refugees along mexican-american borders (studia politica slovaca, 2021), analiza mikropolityczna samorządu lokalnego w nigerii: przypadek władz samorządowych irepodun (przegląd politologiczny, 2021), and nigeriasouth africa relations and the politics of xenophobia in post-apartheid south africa (ssrn, 2021). http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.semanticscholar.org/author/awotayo-olagoke-oluwafemi/113914406 https://www.semanticscholar.org/author/awotayo-olagoke-oluwafemi/113914406 https://www.semanticscholar.org/author/awotayo-olagoke-oluwafemi/113914406 https://www.semanticscholar.org/author/awotayo-olagoke-oluwafemi/113914406 https://ejournal2.undip.ac.id/index.php/alj/article/view/9899/remoteurl https://ejournal2.undip.ac.id/index.php/alj/article/view/9899/remoteurl https://ejournal2.undip.ac.id/index.php/alj/article/view/9899/remoteurl https://journal.unnes.ac.id/sju/index.php/snh/article/view/48055 https://journal.unnes.ac.id/sju/index.php/snh/article/view/48055 https://journal.unnes.ac.id/sju/index.php/digest/article/view/48586 https://journal.unnes.ac.id/sju/index.php/digest/article/view/48586 http://cejsh.icm.edu.pl/cejsh/element/bwmeta1.element.cejsh-a3bfd9af-f922-4e19-aa56-108b482b2bd6 http://cejsh.icm.edu.pl/cejsh/element/bwmeta1.element.cejsh-a3bfd9af-f922-4e19-aa56-108b482b2bd6 http://cejsh.icm.edu.pl/cejsh/element/bwmeta1.element.cejsh-a3bfd9af-f922-4e19-aa56-108b482b2bd6 http://cejsh.icm.edu.pl/cejsh/element/bwmeta1.element.cejsh-fd06bb7b-30d3-4084-aa01-1e353e220f56 https://pressto.amu.edu.pl/index.php/pp/article/view/31032 https://pressto.amu.edu.pl/index.php/pp/article/view/31032 https://pressto.amu.edu.pl/index.php/pp/article/view/31032 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3896960 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3896960 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3896960 journal of law & legal reform volume 3(1) 2022 1 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 1, january 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: november 2021 revised: december 2021 accepted: january 2022 how to cite: fuadi, m. z. r. h., & diniyanto, a. (2022). written quotations and its legal protection: how indonesian law reform on copyrights law? journal of law and legal reform, 3(1), 1-16. https://doi.org/10.15294/jllr.v3i1.53630 © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article written quotations and its legal protection: how indonesian law reform on copyrights law? m. zulvi romzul huda fuadi1, ayon diniyanto2 1,2 iain pekalongan, pekalongan, central java, indonesia, 51161  m.zulvi.romzul.hf@iainpekalongan.ac.id abstract copyright is still on its way to legalizing a lot of homework to be done. one of these jobs is to protect the economic rights of cited sources for commercial use. so far, the copyright law has not specifically regulated this matter. the law does not even protect the economic rights of citation sources quoted for commercial purposes. this study formulates the problem (1) how is the current legal protection regarding copyright for http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i1.53630 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 mailto:m.zulvi.romzul.hf@iainpekalongan.ac.id http://orcid.org/0000-0002-3954-7893 2 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia written works? and (2) how the legal protection should be regarding copyrights for excerpts of written works. the aims of this research are (1) to find out the current legal protection regarding copyright for citations of written works; and (2) formulating the legal protection that should be on copyright for excerpts of written works. the method used in this research is using normative juridical research. the conclusion in this study is to answer the formulation of the problem. keywords: legal protection; copyright; quote; papers; economic rights introduction the development of copyright until now continues to develop. especially with the development and advancement of technology so rapidly. the development of copyright also continues to experience varied developments. these variations are, for example, related to copyright in the realm of technology1. for example, if previously the copyright in the form of writing only existed in books and other written works in printed form. along with the development of technology. copyright penetrates, for example, e-books (electronic books), electronic journals, opinion writing in digital media, and others. but in addition to the development of copyright that goes hand in hand with technology. copyright issues are also increasingly complex. for example, it is related to the economic rights to quotations from writings that are sold commercially. currently, 1 irawati, “digital right managements (teknologi pengaman) dalam perlindungan terhadap hak cipta di era digital,” diponegoro private law review 4, no. 1 (2019): 382–89; ayon diniyanto and heris suhendar, “how law responds to technological development?,” unnes law journal: jurnal hukum universitas negeri semarang 6, no. 2 (2020): 405–26, https://journal.unnes.ac.id/sju/index.php/ulj/article/view/41297; kholil said and ayon diniyanto, “determination of advancement of technology against law,” journal of law and legal reform 2, no. 1 (2021): 125–34, https://doi.org/https://doi.org/10.15294/jllr.v2i1.44525; khwarizmi maulana simatupang, “tinjauan yuridis perlindungan hak cipta dalam ranah digital,” jurnal ilmiah kebijakan hukum 15, no. 1 (2021): 67, https://doi.org/10.30641/kebijakan.2021.v15.67-80. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 3 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia everyone has the right to quote sentences in written works without having to give economic rights to the creator or author of the paper. in fact, the quoter who creates the written work can trade the written work commercially. this means that the citation gets economic benefits from the results of the citations as outlined in the paper. meanwhile, the authors of the cited works do not get economic rights from the cited works2. especially in the current era, the culture of writing is increasingly emphasized, especially in the academic environment. many academics are currently being encouraged to write papers such as books, journal articles, opinions, and others3. of course, the creation or creation of these works cannot be separated from the existence of quotations, especially quotations from previous writings or existing writings. then the creation of these works also has the potential to gain commercial profits this condition can certainly be said to be detrimental to the author of the written work whose writings are quoted. the author of the written work does not get protection of economic rights due to his work being quoted by other people. even though the author of the written work gets moral rights from the quoted writing. this moral right occurs, for example, when a citation includes the source of the quote in a footnote, body note, bibliography, or reference. but, in the exclusive right to copyright does not only talk about moral rights. but there are also economic rights that can be 2 antonio rajoli ginting, “perlindungan hak moral dan hak ekonomi terhadap konten youtube yang dijadikan sumber berita,” jurnal ilmiah kebijakan hukum 14, no. 3 (2020): 579–96, https://doi.org/ttp://dx.doi.org/10.30641/kebijakan.2020.v14.579596; arif rahman, efridani lubis, and agus surachman, “perlindungan hak ekonomi pencipta e-book pada situs buku gratis merespon perkembangan hukum informatika dan transaksi elektronik,” jurnal ilmiah living law 12, no. 2 (2020): 167– 84; rizky pratama p. karo, “analisis yuridis perlindungan hak ekonomi terhadap buku teks pada penerbit gadjah mada university press berdasarkan undangundang nomor 28 tahun 2014 tentang hak cipta,” jurnal penelitian hukum 2, no. 1 (2015): 37–44; denny kusmawan, “perlindungan hak cipta atas buku,” perspektif xix, no. 2 (2014): 137–43; ade uswatun sitorus, “hak cipta dan perpustakaan,” jurnal iqra 09, no. 02 (2015): 252–67; achmad chosyali, “perlindungan hukum hak cipta buku pengetahuan tentang hak cipta,” refleksi hukum 3, no. 28 (2018): 49–66, https://doi.org/https://doi.org/10.24246/jrh.2018.v3.i1.p49-66. 3 agregasi kr jogja, “guru besar dan dosen wajib publikasi ilmiah,” okedukasi, 2018; asep rudi nurjaman, “menyoal dosen wajib menulis,” kumparan.com, 2020; iradhatie wuriananda, “dosen punya kewajiban terbitkan buku,” okedukasi, 2016. http://creativecommons.org/licenses/by-nc-sa/4.0/ 4 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia attached to the creator. this is stated in article 4 of law number 28 of 2014 concerning copyright which states that copyright as referred to in article 3 letter a is an exclusive right consisting of moral rights and economic rights. then article 9 paragraph (3) states that any person without permission from the author or copyright holder is prohibited from reproduction and/or commercial use of works. article 9 paragraph (3) implies that the author of a written work whose writing is quoted for commercialization is entitled to economic rights. seeing these problems, the researcher is interested in seeing how far the protection of economic rights for the works whose writings are quoted will be commercialized by the quoting. by someone else. the formulation of the problem in this study is (1) how is the current legal protection regarding copyright for written works? and (2) what should be the legal protection regarding copyrights for excerpts of written works? the aims of this research are (1) to find out the current legal protection regarding copyright for citations of written works; and (2) formulating the legal protection that should be on copyright for excerpts of written works. method this research was conducted using a qualitative research approach. qualitative approach is the approach of researchers who look at social phenomena in society then photographed and then described in the form of a narrative. this means that this research will look at the symptoms that exist in the community related to legal protection for authors whose writings are quoted and commercialized by the citation. the researcher then described the symptoms in the form of a narrative. the type of research used in this research is using normative juridical research. this type of research emphasizes the study of the normative aspect of the legislation and is also studied from the aspect of the issues raised. the laws and regulations studied are law number 28 of 2014 concerning copyright and other laws and regulations. the issue raised concerns copyright http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 5 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia protection for creators whose written works are quoted and commercialized by the author. sources of data in this study include primary and secondary legal materials. the data collection technique was carried out by literature study. the validity of this research data using triangulation. data analysis in this study was carried out using an interactive model4. result & discussion legal protection regarding copyright has actually been regulated in laws and regulations. the legislation in question is law number 28 of 2014 concerning copyright. previously, legal protection regarding copyright was regulated in several laws and regulations such as (1) law number 12 of 1982 concerning copyright; (2) law number 7 of 1987 concerning amendments to law number 12 of 1982 concerning copyright; and (3) law number 19 of 2002 concerning copyrights. these three regulations are regulations that have been in force in indonesia which regulate copyright, including legal protection in copyright. 4 ayon diniyanto, “reformasi hukum tanah desa: redefinisi dan penguatan kedudukan,” jurnal rechts vinding: media pembinaan hukum nasional 8, no. 3 (2019): 351–65, https://doi.org/10.33331/rechtsvinding.v8i3.331; hardani et al., metode penelitian kualitatif & kuantitatif (yogyakarta: penerbit pustaka ilmu, 2020); bachtiar s bachri, “meyakinkan validitas data melalui triangulasi pada penelitian kualitatif,” jurnal teknologi pendidikan 10, no. 1 (2010): 46–62; matthew b. miles and a. michael huberman, an expanded sourcebook qualitative data analysis, sage publications, inc., 2nd ed., vol. 1304 (california: sage publications, inc., 1994); matthew b. miles, a. michael huberman, and johnny saldaña, “qualitative data analysis: a methods sourcebook,” in nursing standard (royal college of nursing (great britain) : 1987), 3rd ed., vol. 30, 2016, 33, https://doi.org/10.7748/ns.30.25.33.s40. http://creativecommons.org/licenses/by-nc-sa/4.0/ 6 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia i. the current legal protection regarding copyrights for citations of essays talking about legal protection, it cannot be separated from the theory of legal protection. the theory of legal protection basically has two aspects. first, preventive protection. preventive legal protection is legal protection to prevent an action against the law. this prevention then gives rise to laws or statutory regulations as instruments to prevent acts or acts against the law. the legal instrument is carried out by the authorities who have the authority to form a statutory regulation regarding copyright. second, repressive protection. repressive legal protection is legal protection in the context of resolving legal problems. this means that repressive legal protection is a mechanism for resolving problems legally, including in handling the settlement before the court 5. in relation to copyright, the theory of legal protection is very closely related. copyright is an exclusive right granted to creators and copyright holders to publish, distribute, and obtain related rights in it for the work 5 zennia almaida and moch. najib imanullah, “perlindungan hukum preventif dan represif bagi pengguna uang elektronik dalam melakukan transaksi tol nontunai,” privat law 9, no. 1 (2021): 222–24; dyah permata budi asri, “perlindungan hukum preventif terhadap ekspresi budaya tradisional di daerah istimewa yogyakarta berdasarkan undang-undang nomor 28 tahun 2014 tentang hak cipta,” journal of intellectual property 1, no. 1 (2018): 16; agus antara putra, i nyoman putu budiartha, and desak gde dwi arini, “perlindungan hukum terhadap pekerja dengan perjanjian kerja waktu di indonesia,” jurnal interpretasi hukum 1, no. 2 (2020): 15–16, https://doi.org/10.22225/juinhum.1.2.2428.12-17; luthvi febryka nola, “upaya pelindungan hukum secara terpadu bagi tenaga kerja indonesia (tki),” negara hukum 7, no. 1 (2016): 40. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 7 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that has been created 6. this is in accordance with article 1 number (1) of law number 28 of 2014 concerning copyright which states that copyright is the exclusive right of the creator that arises automatically based on declarative principles after a work is manifested in a tangible form without reducing restrictions in accordance with the provisions of the regulations. legislation. this means that every work that has been published is protected by declarative principles. one of these protections is legal protection. this is where the importance of legal protection in copyright with the aim of protecting the work that has been created. considering that the creator in this case has or has moral rights and economic rights to the work created. moral rights according to article 5 of law number 28 of 2014 concerning copyright are rights that are inherent in the creator on an eternal basis and cannot be transferred and contested. economic rights in accordance with article 8 of law number 8 of 2014 are rights owned by creators or copyright holders to obtain economic benefits for the copyrighted works that have been created. then copyright is protected, for example, copyrighted works about books, written works, and other works that have been published. including other works regulated in article 40 paragraph (1) of law number 28 of 2014 concerning copyright. the copyrights that are not protected are works that have not been realized, ideas or ideas, results of meetings, statutory regulations, holy books, and others as referred to in articles 41 and 42 of law number 28 of 2014 concerning copyright. furthermore, there are also restrictions related to copyright, for example the use, retrieval, copying, partial conversion, etc. are not stated as legal protection of copyright. then creations whose 6 oksidelfa yanto, “konsep perlindungan hak cipta dalam ranah hukum hak kekayaan intelektual (studi kritis pembajakan karya cipta musik dalam bentuk vcd dan dvd),” yustisia 4, no. 3 (2015): 746–60, https://doi.org/10.20961/yustisia.v93i0.3702; ronna novy yosia taliwongso, “perlindungan hukum atas hak kekayaan intelektual khususnya merek di indonesia,” lex et societatis ii, no. 8 (2014): 147–58; hasbir paserangi, “perlindungan hukum hak cipta software program komputer di indonesia,” jurnal hukum 18, no. 19 (2011): 21; fajar alamsyah akbar, “perlindungan hukum terhadap hak cipta menurut pasal 12 undang-undang nomor 28 tahun 2014 tentang hak cipta di indonesia,” jom fakultas hukum iii, no. 2 (2016): 8. http://creativecommons.org/licenses/by-nc-sa/4.0/ 8 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia sources are listed in full and not for commercial use. this is in accordance with article 42 to article 51 of law number 28 of 2014 concerning copyright. this means that every use of substance in a copyrighted work may be cited with certain limitations and as long as it is not for commercial purposes. for example, in the use of written works that cite the substance of other people's works for educational purposes and to make it easier to convey information to people with disabilities and not for commercial purposes. it is allowed. but in fact, many of the citations of written works are done for commercial purposes. for example, someone who quotes something substantial from someone else's work, and then turns it into a new paper and the new paper is for commercial gain. for example, a makes a book. the book has a section citing books by b, c, d, and e. the books produced by a are then traded and profited economically. meanwhile, b, c, d, and e whose books are quoted by a only get moral rights and do not get economic rights that arise from economic benefits in the books created by a. these examples are real facts that we see clearly and often occur until now. with today. up to now, the law has not provided specific arrangements in the legal protection of economic rights in the copyright of written works cited for economic purposes. there are still many things that have not been arranged. article 40 paragraph (1) letter a of law number 28 of 2014 concerning copyright states that written works are part of things protected by copyright. meanwhile, based on article 44 paragraph (1) letter a which explains that the use, retrieval, duplication and/or alteration of a work and/or related product/right in its entirety or substantial subsection is not considered a copyright infringement if the source is fully stated, mainly for commercial purposes. then it is also clarified in article 9 paragraph (3) that anyone without the permission of the creator or copyright holder is prohibited from duplicating and/or commercially using the work. this is also further strengthened in article 1 paragraph (24) that what is meant by commercial use is the use of works and/or related rights products with the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 9 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia aim of obtaining economic benefits from various sources or for a fee. create new writings for commercial purposes. judging from the material of the articles, there is no specific statement to discuss the use of citations which are regulated by law number 28 of 2014 concerning copyright. this is different from article 1 number 23 of law number 28 of 2014 concerning copyright related to the piracy and illegal copying of works and/or related rights products and the distribution of goods resulting from the reproduction in question widely to obtain economic benefits. article 1 number 23 is clearer about its content. the quotation does not explain specifically, but the quotation from the written work is a substantial part or sub-section in accordance with article 44 paragraph (1) which means that the quotation should also get copyright protection. currently, there are many authors who in creating written works understand by including the author in the quote as a form of moral right and so that it is not indicated as an act of plagiarism in a written work. this quote has obtained moral rights which have been regulated in accordance with law number 28 of 2014 concerning copyright, but there are no clear and specific regulations in law number 28 of 2014 concerning copyright which explain the economic rights of the quote. a written work in which the citation is a substantial part or subsection of a written work. finally, today, the fact that we see there is no distribution of economic rights for the creators whose writings are quoted by others for commercial purposes. the law also does not provide specific protection for substantial excerpts from works whose citations have a commercially profitable impact. this certainly has an impact on the authors of the papers whose works are quoted. the impact in question is that the author does not get economic rights from the cited work for commercial gain. authors should be protected not only get moral rights over written works cited for commercial purposes. the author has the right to get economic rights from the paper quoted by the citation if the citation gets economic benefits from the quote. http://creativecommons.org/licenses/by-nc-sa/4.0/ 10 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ii. legal protection that should be about copyrights for writing quotes the facts mentioned above indicate that there are problems, especially regarding the economic rights of authors whose works are cited for commercial gain. the laws and regulations, in this case law number 28 of 2014 concerning copyright, do not appear to have regulated this matter. this condition can be interpreted that there is no preventive legal protection. preventive legal protection in question is legal protection for authors whose works are quoted by others for commercial purposes. actually, law number 28 of 2014 concerning copyright has accommodated economic rights, as previously mentioned. however, the economic rights referred to in law number 28 of 2014 concerning copyright do not or have not focused on the protection of citations. this means that law number 28 of 2014 concerning copyright does not or has not specifically regulated economic rights in quotations. the absence of specific legal protection for the author whose writings are quoted for commercial purposes certainly has an impact on the creator. because it should be able to generate economic prosperity for the creators whose writings are quoted for commercial purposes. the absence or absence of such regulation makes it important to create a rule that regulates the provision in question. the rules or regulations that must be carried out must reflect at least two aspects. first, legal protection to obtain economic rights to written works cited for commercial purposes. second, the economic impact on papers cited for commercial purposes. the formulation of the right regulation is by making a rule that everyone who cites for commercial purposes is obliged to give some economic rights to the author or creator of the cited work (source of the quote). the distribution of economic rights must be regulated in detail up http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 11 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia to a percentage. the distribution of economic rights is carried out by an institution that deals with this matter, such as the national collective management institute (lmkn). the formulation must be carried out or included in a regulation that regulates copyright. if necessary, the formulation can be done by establishing a new regulation that regulates the economic rights of written works. but in order to maintain the simplification and harmonization of regulations, it is better if the formulation is included in the existing laws and regulations, namely the law that regulates copyright. why does it have to be statutory? because the law is hierarchically statutory regulations have a strong position. this strong position has the consequence of strong legal protection. if the formulation of the regulation is made in the form of a legal policy in the form of a law. of course it will have an economic impact on the papers quoted for commercial purposes. the author has at least mapped out some of the impacts that will be obtained. the impact in question is a positive impact on the creator of the written work whose work is quoted (source of quotation/source cited) for commercial purposes. there are at least three impacts that will be obtained, namely (1) providing awards and copyright protection for authors whose writings are quoted; (2) obtain economic benefits; and (3) increase productivity and enthusiasm for writers in pouring new ideas into written works. the first impact, is to provide appreciation and copyright protection for authors whose writings are quoted, which is not a new impact. considering that this phenomenon has already taken place and we can see it in various written works. this is because so far, everyone who quotes must include the source of the quote. this means that there is an award made by the citation to the source cited. the second impact is to gain economic benefits. this impact is a new impact because it has not happened before. previously there was no obligation for the quoting agent to grant economic rights to the quoting source. the quoters who make writings to be commercialized and the writings are made by citing various sources, there is no obligation to provide profit sharing or some economic rights to the source of the http://creativecommons.org/licenses/by-nc-sa/4.0/ 12 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quotation. economic rights can be said to be or owned by the creator or publisher. after the regulation that requires the citation to give economic rights to the source of the citation, it is certain that the source of the citation will also receive the economic rights of the cited paper. this economic advantage will certainly benefit the source of the quote or the author of the paper whose work is quoted for commercial purposes. the third impact, of course, can increase or increase productivity and enthusiasm for the creator or writer of the paper whose works are quoted for commercial purposes. productivity and enthusiasm are meant to be productive and enthusiastic in expressing new ideas. the existence of a policy of economic rights for the source of quotations or authors whose writings are quoted for commercial purposes can certainly provide encouragement for writers or authors to increase writing productivity. this impact is actually very important because it will have the potential to produce many new, unique, and interesting ideas or ideas that are set forth in the form of written works. indeed, some of these impacts have already occurred and some are still potential. but with this impact, it can at least provide a breath of fresh air for writers or writers. the existence of this impact also indicates that there is legal protection in copyright, including economic rights in written works that are quoted for commercial purposes. conclusion the existence of the cited written work (source of the quote) to be used as a work that has economic rights can be said to have not received protection. law number 28 of 2014 concerning copyright can be said to have not provided protection, especially legal protection in economic rights for the creators of written works whose works are quoted by others for commercial gain. the author of the written work or the source of the quotation has not yet obtained economic rights from the quotation that has http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 13 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia been made into a written work for commercial gain. therefore, it is necessary to formulate regulations that regulate the protection of citation sources whose quotations are used for commercial purposes. the formulation at least includes an obligation for every person who makes citations for commercial use must provide economic rights to the source of the citation. the distribution of economic rights is carried out or managed by a body that handles economic rights in copyright. the formulation can be contained in a new law or embedded in a revised copyright law. if the formulation of the regulation is implemented or implemented, there will be at least three 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sitorus, ade uswatun. “hak cipta dan perpustakaan.” jurnal iqra 09, no. 02 (2015): 252–67. taliwongso, ronna novy yosia. “perlindungan hukum atas hak kekayaan intelektual khususnya merek di indonesia.” lex et societatis ii, no. 8 (2014): 147–58. wuriananda, iradhatie. “dosen punya kewajiban terbitkan buku.” okedukasi, 2016. yanto, oksidelfa. “konsep perlindungan hak cipta dalam ranah hukum hak kekayaan intelektual (studi kritis pembajakan karya cipta musik dalam bentuk vcd dan dvd).” yustisia 4, no. 3 (2015): 746– 60. https://doi.org/10.20961/yustisia.v93i0.3702. http://creativecommons.org/licenses/by-nc-sa/4.0/ 16 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia acknowledgment none funding information none conflicting interest statement all authors declared that there is no potential conflict of interest on publishing this article. publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. about author(s) m. zulvi romzul huda fuadi, s.h., m.h., is a lecturer at faculty of law iain pekalongan indonesia. he also one of editors at al hukkam: journal of islamic family law. ayon diniyanto, s.h., m.h., is a lecturer at faculty of law iain pekalongan indonesia. some of his recent publications such as menyelamatkan korban dari jerat uu ite: studi kasus baiq nuril maknun dan relevansinya bagi penguatan peran pemerintah melindungi pelapor tindak asusila (supremasi hukum: jurnal kajian ilmu hukum, 2021), peraturan daerah dana cadangan: strategi alternatif pembangunan daerah (jurnal legislasi indonesia, 2021), penataan regulasi di indonesia melalui lembaga independen (pandecta: research law journal, 2021), and legal protection policy for minority groups (evidence from aboge group in purbalingga indonesia) (journal of indonesian legal studies, 2021). http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=v0syky8aaaaj&sortby=pubdate&authuser=2&citation_for_view=v0syky8aaaaj:tqgyirikucic https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=v0syky8aaaaj&sortby=pubdate&authuser=2&citation_for_view=v0syky8aaaaj:tqgyirikucic https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=v0syky8aaaaj&sortby=pubdate&authuser=2&citation_for_view=v0syky8aaaaj:tqgyirikucic https://scholar.google.co.id/citations?view_op=view_citation&hl=id&user=v0syky8aaaaj&sortby=pubdate&authuser=2&citation_for_view=v0syky8aaaaj:e5wmg9sq2kic 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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: 7fbf23cdab30209d • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(4) 2020 671 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article legal protection of copyright in the globalization era: a comparison of indonesia and china bimo satria fajrin nugroho1, muhamad adji rahardian utama2 1 wuhan university of science and technology, wuhan, people republic of china 2 faculty of law, universitas negeri semarang, indonesia  adji.info@gmail.com cited as nugroho, b. s. f., & utama, m. a. r. (2020). legal protection of copyright in the globalization era: a comparison of indonesia and china. journal of law and legal reform, 1(4), 671-680. https://doi.org/10.15294/jllr.v1i4.39424 abstract the aim of this study is to analyze and compare the copyrights protection between indonesia and china in the globalization era. the copyright in reference to the republic indonesia law number 19 of the year 2002 on the copyright system is as an exclusive of right which is for a so called creator or a receiver of copyright itself to be able to display or to reproduced a creation or by giving the permission to it by not reducing its own restrictions under applicable copyright law. hierarchically the copyright system itself belongs to the proprietary system of property that is immaterial because it also includes the ideas of thoughts, ideas, as well as from the imaginative form of a person who has poured it into a form of copyrighted work/copyright, as is the case with the copyright in the form of scientific books, literary works, or in the form of artwork. many of the countries of the wor ld both individuals and legal entities apply this copyright. the copyright system of each country must vary where this difference is the advantage of the country's copyright system itself compared to other countries copyright systems. keywords: copyrights, creation, immaterial property; protection submitted: 28 may 2020, revised: 15 june 2020, accepted: 27 june 2020 journal of law and legal reform (2020), 1(4), pp. 671-680. doi: https://doi.org/10.15294/jllr.v1i4.39424 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 672 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 671 table of contents ………………………………………………………….. 672 introduction …………………………………………………………………. 672 method …………………………………………………………………………… 673 discussion ………………………………………………………………………. 673 copyrights in contemporary development ..…………………. 674 i. copyright in indonesia: current development ….……... 674 ii. copyright in the people’s republic of china ……………… 676 conclusion …………………………………………………………………….. 679 references ……………………………………………………………………... 678 introduction copyright has a quite broad dimension, in the sense of the copyright system, actual knowledge of the scope of the copyright system is needed to avoid confusion in understanding the general understanding of copyright in society. copyrights related to many products of national culture that are recognized by other countries, most of the requests from the central government to be able to promote "patenting" the copyright of products on cultural arts. where in the case of copyright, the term "patented" is not justified, because "patenting" will only be appropriate for the right to industrial property, namely in the form of a right to a patent, not a copyright (irawan, 2018). copyright in indonesia refers to law no. 19 of 2002 regarding copyright is an exclusive right of a creator or recipient of the copyright itself to be able to display or reproduce a work or to give permission to him without reducing the restriction itself based on the applicable copyright law (usman, 2016 ). hierarchically the copyright system itself is included in the immaterial property rights system because it also includes ideas, ideas, including imaginative forms of someone who has put them into a work form for copyright , for example, with copyright in the form of scientific books, literary works, including works of art (usman, 2016). many of the countries in the world both individuals and legal entities apply this copyright. of course, the system of copyright of each country must be different where this difference gives rise to the advantages of that country's own copyright system over other countries' copyright systems. this is the reason this paper http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 673 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia would analyze concerning comparison of case study copyright: republic of indonesia and people's republic of china. method the study used a juridical normative approach. where through such an approach, this article is focused on analyzing the comparison of copyright systems that take case studies between the republic of indonesia and the people's republic of china through literature analysis such as book articles and journals, data cases through the media, and other related legislation. in addition, this paper also analyzes the relationship between the system of rights that are related to one another and theoretical concepts from the related literature. therefore, the data used for writing articles is secondary data. sources of this data are obtained through books, articles, and special journals from local and international media such as the united nations and others as well as from legal experts as well as from applicable local and international regulations. discussion basically, the right to an author is "the right to copy a work". copyright allows the owner of the right itself to be restricted from reproduction of works that are not authorized (damian, 2004). where in general, the copyright itself has a certain validity period. where the copyright itself can be applied to several kinds of works of arts and crafts, the right to the creator is called "creation". it was explained that the right to creation is several forms of intellectual property rights, but also that the rights to creation itself are fundamentally differentiated from other intellectual property rights (such as rights to patents, which are those that can be granted rights) on monopolizing the use of the work itself), because the rights to creation itsel f are not in the form of monopoly rights to be able to do something, but these rights are to prevent other people from using it. http://creativecommons.org/licenses/by-nc-sa/4.0/ 674 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia copyrights in contemporary development i. copyright in indonesia: current development in the republic of indonesia itself, the issue of copyright itself is regulated by law regarding copyright, which, where applicable, the current law is the copyrights law (law number 24 of 2014). where in the regulation itself, the meaning of copyright itself is an "exclusive right for the author or the opinion of a right to be able to notify or reproduce a work or hereby give permission for it without reducing the restrictions under applicable laws and regulations" ( article 1 paragraph 1). copyright in the republic of indonesia also recognizes the conceptualization of the terms "right to the economy" and "right to morals". the right to the economy is the right to obtain an advantage from economic creation, then the right to morality is a right which has been attached to the maker and / or actor (art, recording, broadcast) which cannot be eliminated for any reason, even if the copyright or related rights have been transferred. an example of the implementation of the right to morals is the inclusion of the name of the author on the creation, even though, for example, the copyright of this work has been sold to other parties for use (ismail & randi, 2018). the right to moral itself has been regulated by articles 24-26 of this copyright law. 1. duration of copyright protection in the republic of indonesia, the term for protection of copyright in general is that throughout the life of the creator, it is added for 70 years so that the work is known to the creator and the collaborative work or 50 years after it was first published or published or made for works made by legal entities, photography, and anonymous works (law no. 28/2014 chapter ix and section 58), except 20 years after first broadcast for broadcast work (law no. 28/2014 chapter ix and section 63), or without limitation the moral rights of the inclusion of names the creator at creation and for copyrights held by the state folklore and the cultural results of the people belong to the applicable invitation "(law no. 28/2014 chapter ix and article 38; islamil & randi, 2018). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 675 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. law enforcement of copyright criminal sanctions for copyright infringement in indonesia are generally threatened by a prison term of at least ten years which may or may not be accompanied by a minimum fine of 4,000,000,000 rupiah, while creation or goods that are the result of copyright crimes and tools used to commit a criminal act that is confiscated by the state to be eradicated (law 28/2014 chapter xvii). 3. copyright exceptions and limitations in the republic of indonesia exclusion of copyright in this case means invalidity of the exclusive rights established in copyright law. examples of exceptions to copyright are the fair use or fair use doctrine applied to some countries which allows the reproduction of a work without violating copyright. in the copyright law that applies in indonesia, several things are regulated as not violating copyright (chapters 14-18) (maarif, 2019). the use of a work is not considered a copyright infringement when the source is mentioned or stated clearly and is limited to non-commercial activities including social activities, for example, activities within the scope of education and science, research and development activities, provided that they do not harm the reasonable interests of its creator. the natural interest in this is "interest based on equilibrium in enjoying the economic benefits of creation." included in this definition is the creation for performance or performance which is not subject to payment. especially for quoting writings, mentioning or inclusion of sources cited creation must be completed in full. that is, by including at least the name, title or name of the creator's work, and the name of the publisher if any. in addition, an owner (not a copyright holder) of a computer program is allowed to make a copy of the computer program, it must be backed up solely for their own use. copyright photos are generally held by the photographer, but portrait photos of a person (or persons) are prohibited from sharing when they conflict with the reasonable interests of the person being photographed. when people take copyright from someone, that person will get the right punishment for the crime that was committed (rumbekwan, 2016). according to law no. 28 of 2014 article 42, there is no copyright on the results of open meetings of state institutions, laws and regulations, state speeches or speeches of government officials, court decisions or judges, or decisions of arbitration bodies or decisions of other similar bodies (such as decisions that decide the dispute). in the united states, http://creativecommons.org/licenses/by-nc-sa/4.0/ 676 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia all government documents, no matter the date, are in the public domain, i.e. they are not copyrighted. article 43 of copyright law provides that the use or duplication of the national emblem and national anthem by their original nature does not violate copyright. likewise, the actual news is taken in whole or in part from news agencies, broadcasters, and newspapers or other similar sources, provided the source will be mentioned in full (nugroho, 2019). 4. registration of works in indonesia in indonesia, recording a work is not an obligation for the creator or copyright holder. copyright protection appears since its creation and publication (nugroho, 2019). however, the creation letter can be used as a means of initial evidence in a dispute. as stipulated in chapter x of the copyright law, copyright registration is held by the directorate general of intellectual property (djki), which is now under the ministry of law and human rights. creators or copyright holders can record their creations in person or by appointing a representative (intellectual property consultant). applications for creation registration are subject to fees. works that have been recorded through dgip are included in the general list of creations. public lists can be accessed in the intellectual property database maintained by dgip (sudargo & winata, 1997). ii. copyright in the people’s republic of china formally, china's copyright law has been in line with the united states and other developed countries since china became a signatory to the bern convention in 1992 and the deal on trade hotspots related to intellectual property rights (trips) in 2001. but it's hardly news that you can get pirated copies of almost any movie, cd, or book in china with very little effort. few years ago, we could find pirated dvds outside of nearly every supermarket and mall in the country. it is currently more difficult to find the seller, but not because of china's efforts to limit counterfeit goods; it is because the market has moved to the internet. but as chinese homegrown media companies such as baidu, alibaba, and tencent continue to pay serious money for the right to stream tv shows, films, and other copyrighted material, more lawsuits filed in chinese courts seek to enforce china's copyright laws, and efforts more formal work is being done to reduce the amount of pirated material available in china. a (few) more subtle forms of copyright infringement are still developing, however: creative work that cut the key elements of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 677 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia copyrighted material, from storylines to characters to musical cues and beyond. television shows in china will make some slight changes to a copyright-protected format and then insist it is an entirely new creation, like last year's chinese voice. it's not always clearly copyright dodge, either; the popular chinese singing competition i am a singer was officially licensed out of the copyrighted korean format or that, until the title and format were changed recently amid china's unofficial restrictions on korean content. perhaps it is no longer considered korean-content shows, which as a side benefit may mean the show cannot be held responsible for copyright infringement (sudargo & winata, 1997). chinese manufacturers have long excelled at taking key elements of existing products and incorporating them into "new" products. so, it is no surprise that the same is true in entertainment. this has been going on for decades with china's most famous story, the 16th century novel "journey to the west" which has been adapted into a film or tv series dozens of times. we complain in america about the many sequels and superhero films, but at least most of them have different plots. it would be like having one of our greatest stories, like point break remade several times in different formats every year for 40 years. it is important to understand, however, that chinese law prohibits unauthorized use of copyrighted works, or elements thereof, unless such use falls under one of the twelve specific exceptions listed in article 22 of the chinese copyright law: 1. personal use 2. quote "exactly" to introduce, comment on, or explain 3. use of the media to report current events 4. republishing or re-broadcasting of other media entity stories 5. publish or broadcast a public speech 6. translation or reproduction of scientific works solely for use in teaching or research 7. is used by a government agency "to a degree justifiable for the purpose of fulfilling its official duties" 8. reproduction of works in their collections by libraries, museums, etc. for exhibition or preservation purposes 9. life free performance 10. copy, draw, photograph, or record video with public works of art 11. translating works of chinese citizens from mandarin into chinese minority languages, for distribution in china 12. transliterations of published works into braille for publication. http://creativecommons.org/licenses/by-nc-sa/4.0/ 678 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the above exception is similar to the american concept of "fair use," a doctrine that allows for unauthorized use of copyrighted material under certain conditions. while not always interpreted consistently, china's fair use exceptions are quite limited. when you watch a chinese reality show and hear a dozen uplifting musical cues from american pop songs, that's not fair use. when we watch a chinese television show that looks exactly like mad about you, it is not fair to use either. that leaves the (former) copyright infringement and the legal license of the copyrighted format (the latter). as the value of copyrighted material in china increases, it is increasingly important to take a broader view of ip protection. licensing tv shows to china is big and growing business. anti-piracy efforts are still important, but it is even more important to have a well-structured license agreement, and to take legal action when you find another media company using your copyrighted material. conclusion in the sense of the copyright system, actual knowledge of the scope of the copyright system is needed to avoid confusion over understanding of copyright that is common in society. copyrights related to many products of national culture that are recognized by other countries, most of the requests from the central government to be able to promote "patenting" the copyright of products on cultural arts. where in the case of copyright, the terminology of the word "patented" is not justified, because "patenting" will only be appropriate for the right to industrial property, namely in the form of a right to a patent, not for a copyright. many of the countries in the world both individuals and legal entities apply this copyright. of course, the system of copyright of each country must be different where this difference gives rise to the advantages of that country's own copyright system over other countries' copyright systems. where in this case, even though each country has a different copyright system which, when compared, certainly has a comparison of advantages and disadvantages, it cannot be denied that it can also be used as a complementary system between countries to strengthen cooperation between countries. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 679 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references damian, e. (2004). hukum hak cipta: uuhc no. 19 tahun 2002. bandung: penerbit alumni. irawan, c. (2018). politik hukum hak kekayaan intelektual indonesia: kritik terhadap wto/trips agreement dan upaya membangun hukum kekayaan intelektual demi kepentingan nasional. bandung: penerbit maju mandar. ismail, i., & randi, r. (2018). upaya hukum kasasi terhadap putusan pengadilan niaga atas gugatan pelanggaran hak cipta menurut undang-undang nomor 28 tahun 2014 tentang hak cipta. jurnal lex privatum, 6(1), 3-4. maarif, a. (2019). perlindungan hukum terhadap pemegang hak cipta berdasarkan uu no. 28 tahun 2014 tentang hak cipta (studi kasus terhadap perkara no. 353/pid.sus/2015/pn.smn). jurnal kajian hasil penelitian hukum, 1(2), 128-155. nugroho, e. r., & priyanka, w. (2019). tanggung gugat pemegang hak cipta terhadap perbuatan melawan hukum pelanggaran hak cipta, journal of intelectual property rights, 2(2), 23-37. https://journal.uii.ac.id/jipro/article/view/13209/9329 republic of indonesia. (2014). law number 24 of 2014 concerning copyright [undang-undang nomor 24 tahun 2014 tentang hak atas cipta]. https://dgip.go.id/images/ki-images/pdffiles/hak_cipta/uu_pp/uu_hc_%2028_2014.pdf rumbekwan, r. g.e. (2016). penyelesaian sengketa akibat terjadinya pelanggaran hak cipta di pengadilan niaga. lex crimen, 5(3), 129-138. https://ejournal.unsrat.ac.id/index.php/lexcrimen/article/view/11704 sudargo, g., & winata, r. (1997). konvensi-konvensi hak milik intelektual baru untuk indonesia. bandung: penerbit citra aditya. usman, r. (2016). hukum hak atas kekayaan intelektual: perlindungan dan dimensi hukumnya di indonesia. bandung: penerbit alumni. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://journal.uii.ac.id/jipro/article/view/13209/9329 https://dgip.go.id/images/ki-images/pdf-files/hak_cipta/uu_pp/uu_hc_%2028_2014.pdf https://dgip.go.id/images/ki-images/pdf-files/hak_cipta/uu_pp/uu_hc_%2028_2014.pdf https://ejournal.unsrat.ac.id/index.php/lexcrimen/article/view/11704 680 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote “copyright law has got to give up its obsession with 'the copy.' the law should not regulate 'copies' or 'modern reproductions' on their own. it should instead regulate uses--like public distributions of copies of copyrighted work--that connect directly to the economic incentive copyright law was intended to foster.” lawrence lessig remix: making art and commerce thrive in the hybrid economy http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.goodreads.com/work/quotes/2918930 journal of law & legal reform volume 1(4) 2020 681 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article politics of law in the establishment of a national regulatory body: a new direction for legal reform irfan jamallullail 1 postgraduate program, master of laws, universitas negeri semarang, indonesia  irfanjamal96@gmail.com cited as jamallullail, i. (2020). politics of law in the establishment of a national regulatory body: a new direction for legal reform. journal of law and legal reform, 1(4), 681-690. https://doi.org/10.15294/jllr.v1i4.39781 abstract the aims of this study are to analyze and describe national regulatory body in the context of indonesian law after the amendment of formulation of laws and legislation act. the method used is a qualitative research method that is normative legal research with a focus of research that is discussing the politics of law of forming a national regulatory body. the study revealed that the substance in law number 15 of 2019 is the existence of a new institution that organizes government affairs in the field of the formation of legislation. the agency in the amendment to the ppp act, among others, has the function or task of coordinating the preparation of legislation program within the government, coordinating the planning of the drafting of presidential decree coordinating the harmonization, rounding up, and consolidating the conception of a draft bill originating from the president, coordinating the preparation of deliberations for the draft bill with the parliament, coordinating the harmonization, rounding up, and consolidating the conception of the bill originating from the president and strengthening the conception of the draft of decree, coordinating the harmonization, rounding and consolidation of the draft decree, enacting legislation in the official gazette of the republic of indonesia or the official gazette of the republic of indonesia. keywords: politics of law; legal policy; legislation journal of law and legal reform (2020), 1(4), pp. 681-690. doi: https://doi.org/10.15294/jllr.v1i4.39424 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 11 may 2020, revised: 11 june 2020, accepted: 30 june 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i4.39781 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 682 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 681 table of contents ………………………………………………………….. 682 introduction …………………………………………………………………. 682 method …………………………………………………………………………… 683 analysis of politics of law in the establishment of the national regulatory agency ……………………………………….. 683 i. politics of law in indonesia ……………………………...………. 683 ii. national regulatory agency …………………………………... 687 conclusion …………………………………………………………………….. 688 references ……………………………………………………………………... 689 introduction in the 2019 presidential and vice-presidential debates, the jokowi-ma'ruf amin pair conveyed one of their programs in responding to the issue of law and human rights to create a national regulatory body (bln). the breakthrough offered by jokowima’ruf amen arose from the turmoil in the legal dynamics that occurred in indonesia. there are many regulations at the ministry or regional level that are not in line with the central government's agenda. besides, many rules and regulations overlap one another. thereby hampering the rate of movement of legal reform efforts launched by the government. besides, the agencies tasked with drafting national legislation ranging from the bphn to the kemenkumham institutions are considered to be less alert and productive. this happens because of the partial division of labor between institutions, which slows down communication and synergy in the preparation of legislation products. as a result, the resulting legislative products tend to be slow. responding to this, jokowi-makruf amin in his national agenda will declare legal reform by forming the national regulation agency (badan legislasi nasiona, hereinafter as bln). this unification is the government's effort to minimize the obstacles in making prolegnas. at present, jokowi-makruf amin has been legally elected as president and vice president of the republic of indonesia. the bln idea will be realized as one of the promises of the campaign. this is supported by the validity of law number 15 of 2019 concerning the formation of laws and regulations as amendments to law number 12 of 2011. the president and the parliament have one voice to create an institution that http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 683 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia functions as a navel for national legislation, harmonizing the laws which ha ve tended to overlap, obesity regulations, and regulations that hinder government programs and performance. method the research method used is qualitative research methods, namely normative legal research. the focus of the research is to discuss the politics of law of forming a national regulatory body. data sources consist of primary sources in the form of law no. 15 of 2019, secondary in the form of legal books relating to the study of this research such as theses, journals, and dictionaries. third, tertiary sources in the form of supporting theories. analysis of politics of law in the establishment of the national regulatory agency i. politics of law in indonesia padmo wahjono in his book indonesia negara based on law defines politics of law as the basic policy that determines the direction, form, and content of the law to be formed. (wahyono, 1986) this definition is still abstract and is then supplemented by an article entitled "investigating the process of establishing legislation," which says that politics of law is the policy of state administrators about what is used as a criterion to punish something. in this case, the policy can be related to the formation of law, the application of the law, and enforcement itself (wahyono, 1991). so that the understanding of politics of law in the indonesian context, namely legal policies that will or have been implemented nationally by the indonesian government include; legal development that focuses on making and updating legal materials to suit their needs; the implementation of existing legal provisions including the affirmation of the functions of the institution and the development of law enforcers political law becomes the basic policy that determines the direction, form, and content of the law formed. national politics of law as a basic form for all forms and http://creativecommons.org/licenses/by-nc-sa/4.0/ 684 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia processes of formulation, formation, and development of law in indonesia which consists of several interdependent and related components to achieve the agreed common goals (mahfud, 1989). furthermore, it can be concluded that politics of law was born on the encounter between the realism of life with the demands of idealism. politics of law talks about "what should be" which is not always the same as "what is". political law is not passive about "what is" but must actively find "what should be". thus, politics of law should not be shackled by "what is". therefore, the existence of politics of law is marked by demands to choose and take an action or decision (mattalatta, 2009). 1. national legislation program the national legislation program is usually abbreviated as prolegnas in the context of political and legal policy in indonesia intended to plan a program of law formation which is considered a national priority to overcome various legal problems in society. prolegnas is carried out for five years of the term of office of the house of representatives and the president as two institutions that have the authority to propose laws and regulations as referred to in the provisions of article 20 of the 1945 constitution after the amendment (riswanto, 2016). regulations on prolegnas are regulated in article 16 of law no. 12 of 2011 concerning the formation of laws and regulations which state that planning for the formulation of laws is carried out in prolegnas. the prolegnas is equipped with instruments for setting priorities in the formation of laws. next, the prolegnas mechanism is regulated in perpres no. 87 of 2014 concerning implementing regulations of law no .12/2011 concerning the formation of regulations and regulations that become binding regulations for all ministries and non-ministerial government agencies when preparing and proposing a draft law. then, dpr ri regulation no. 1 of 2012 concerning procedures for the preparation of the national legislation program and dpr ri regulation no. 1 of 2012 jo. dpr ri regulation no. 1 of 2014 concerning the dpr ri rules of conduct which bind dpr members who are members of the commission, the legislative body (baleg), and the factions in the dpr ri in proposing a bill. the mechanism of drafting and proposing a bill in the presidential regulation and dpr ri regulations binds each institution (president and dpr) to then determine prolegnas in the dpr ri plenary session in the form of the dpr ri decree on prolegnas annually and priority prolegnas annually. for example, based on the mechanism stipulated in perpres no.87/2014 and dpr ri regulation no.1 / 2012 jo. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 685 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia dpr ri regulation no.1 / 2014 dpr plenary session has decided dpr ri decree no. 06a / dpr ri / ii / 2014-2015 regarding the 2014-2015 national legislation program and the national legislation program of the draft priority laws for 2015 have approved the prolegnas 2015-2019 as many as 160 bills were targeted by the dpr and the government to be completed throughout 2015-2019 or during one period of dpr membership. since it was first conceived in 1976/77, the national legislative program was intended as an instrument of planning the formation of laws and regulations which was carried out in a directed, coordinated, and systematic manner. because the ultimate goal of the national legislation program is the realization of a national legal system that guarantees justice and welfare of the people with the ideals of the proclamation, the goals of the state, and the 1945 constitution (utrecth, 1996). however, based on empirical facts, the existing patterns and mechanisms have not been able to produce satisfying results because the good enough concept has not been effectively implemented. therefore, the urgency of compiling prolegnas through one door at this time becomes urgent to be carried out based on the following considerations and reasons (riswanto, 2016): 1) the large number of prolegnas made outside the existing mechanisms and procedures will only disrupt and spoil the existing system. 2) the tendency for the preparation of prolegnas through many doors will trigger the emergence of ego and sectoral agility in the submission of the bill which, on the one hand, is not oriented to the legal needs of society. this in the end can trap us into acts of corruption. 3) there was an overlap in the law formation program due to coordination in the preparation of the national legislation program. 4) it can create a heavy burden for both the dpr and the government itself. in practice, there is a tendency for the bill to be launched as arrears that must be settled outside the priority year. 5) the waste of the state budget is caused by the drafting of a bill carried out b y more than one proponent with their respective members. besides, we still often see the existence of laws whose contents are canceled by the constitutional court vertically inconsistent with the constitution or horizontally overlap with other laws. this fact can be supplemented by the results of a study conducted by a team formed by the indonesian parliament. the team found four main problems in the legislated field: firstly, the quality of the resulting law was inadequate so it lacked direct benefits for people's lives. secondly, the target for the number of resolutions of bills set in the national http://creativecommons.org/licenses/by-nc-sa/4.0/ 686 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia legislation program has not been fulfilled yet. thirdly, the discussion of the draft bill is not transparent so it is difficult to access by the public. fourth, there is still a weak level of coordination among the council's tools in the preparation and discussion of a bill. if judging since indonesia's independence, there is no consistency in what direction the legal development program will be, such as: 1) during the sukarno administration, the direction of the legal program was shown to replace colonial law 2) during the soeharto government the direction of the program was aimed at economic development, in addition to replacing colonial laws and regulations that were formed during the soekarno era. 3) after the suharto government, the direction of the law became increasingly uncertain because each government seemed to have an interest. 4) the national legislation program is not heeded. 5) prolegnas is increasingly meaningless if there is a desire from abroad for a law 6) the more indonesia depends economically on international financial institutions or developed countries, the more it will be undermined by its legal sovereignty. 7) if during the soeharto era there was a statement about changing the minister to replace the policy, then at the moment there is an impression of changing the president to change the policy, including the priority of establishing the law. 8) many laws are made very sectoral ego of the department 9) the law has not yet been made to meet the needs of the community and to pay attention to the existing infrastructure in various parts of indonesia. therefore, from so many weaknesses that occur in the preparation of national legislation program, regardless of the institutions involved, president jokowi with his legal reform agenda tries to break the new form of forming an institution or a ministry-level body under the direct command of the president of the republic of indonesia deal with everything related to legislation. 2. regulatory obesity at the same time, the legislation also recognizes the enactment of customary law and islamic law. therefore, politics of law in legal reform is implemented to encourage legal reform policies that lead to the replacement of colonial inheritance laws, and the adoption of very diverse customary law and islamic law into positive state law (maryanto, 2012). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 687 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia meanwhile, the provisions of international law created due to the entry of indonesia as a member of international, regional and or bilateral cooperation organizations and the ratification of various treaties and relating to human rights also have implications for the state's obligations to make laws, even as well as obligations to harmonize the principles of national law that we have with the international instruments we are related to. the legal pluralism is also augmented by the development of regional regulations (perda) as a result of the implementation of regional autonomy as well as written rules outside the order of the law. where the provisions in these regulations emphasize the role and power of state institutions (including regional government) informing and interpreting written law to achieve the goals of the institutions (mattalatta, 2009). indonesia is a legal country and an important element to support this is the laws and regulations that govern all aspects of national and state life. the regulation was made solely for the benefit of welfare and public interest. in the indonesian context, the number of regulations currently reaches 42,996 with the breakdown of central regulations of 8,414, ministerial regulations of 14,453, regulations of non ministerial government institutions 4,164, and regional regulations of 15,965. supposedly, the more the number of regulations or existing laws and regulations, the higher the level of welfare. however, quite a lot of regulations lead to regulatory obesity resulting in slow performance to achieve prosperity (triningsih, 2017). ii. national regulatory agency the duties of the national regulatory body are as follows: 1) representing the government to prepare prolegnas in the dpr. 2) representing the government filed a bill in the parliament outside the national legislation program. 3) drafting the draft of a bill from the president. 4) harmonize, round up, and solidify the concept of the bill from the president. 5) representing the president coordinating the discussion of the bill in the dpr. 6) drafting government regulations. 7) harmonize, round up, and solidify the draft government regulation draft. 8) harmonize, round up, and solidify the draft presidential regulation draft. 9) harmonize, round up, and solidify the concept of the draft provincial regulation. http://creativecommons.org/licenses/by-nc-sa/4.0/ 688 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 10) translating laws and regulations into foreign languages. monitor and review the implementation of laws representing the government. actually, before the existence of the national regulatory agency, there was a national regulatory body (brn) which had the same functions and duties as the national legislation center. the national regulatory body (brn) is a government agency tasked with fostering an integrated and comprehensive national legal system from planning to analysis and evaluation of laws and regulations. brn is a continuation of the national legal development institute (lphn) formed by the government in 1958. the task of brn is to carry out efforts to improve and perfect national law, among others, by updating the codification and unification of law in certain fields by paying attention to legal awareness in the community. while its functions include: (a) fostering the holding of scientific meetings in the field of law, (b) fostering research and development of national law, (c) fostering drafting of draft codification laws (d) fostering documentation centers. if it is observed, the composition that will fill the new agency will most likely be taken from institutions and bodies that have long been involved in and jurisdiction with legislation. like brn, the state secretary and the ministry of home affairs, which collects regulations from various regions. conclusion one of the substances in law number 15 of 2019 concerning formation of regulations and regulations is the existence of institutions that conduct government affairs in the field of the formation of legislation. the agency in the amendment to the ppp act, among others, has the function or task of coordinating the preparation of prolegnas within the government, coordinating the planning of the drafting of pps, coordinating the harmonization, rounding up, and consolidating the conception of a draft bill originating from the president, coordinating the preparation of deliberations for the draft bill with the parliament, coordinating the harmonization, rounding up, and consolidating the conception of the bill originating from the president and strengthening the conception of the rpp, coordinating the harmonization, rounding and consolidation of the draft perpres, enacting legislation in the official gazette of the republic of indonesia or the official gazette of the republic of indonesia. hopefully in the future with the existence of special institutions that are given more power and authority to oversee national legislation, national law will be more advanced and developed. the overlap between laws will no longer be found. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 689 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia coordination between institutions is easy so that it makes it easier and more effective for budget and performance to be more focused. with the existence of this new institution, it is not even an institution that complicates the enforcement and development of existing laws in indonesia. references ali, a. (2011). politik hukum. jakarta: sinar garfika hartono, s. (1991). politik hukum menjadi satu sistem hukum nasional. bandung: alumni mahfud, m. (1989). politik hukum di indonesia. yogyakarta: lp3es maryanto, m. (2012). politik hukum pendidikan. civis, ii(1), 199–216. mattalatta, a. (2009). negara kesatuan republik indonesia adalah negara hukum ( rechsstaat ), tidak berdasarkan kekuasaan belaka ( machtsstaat ). konsepsi negara hukum yang diinginkan oleh founding fathers sejak awal perjuangan kemerdekaan ini terlihat jelas dengan dimuatnya po. 571–584. riswanto, a. (2016). strategi politik-hukum meningkatkan kualitas kinerja dpr ri dalam produktivitas legislasi nasional. jurnal cita hukum, 4(2), 267–286. https://doi.org/10.15408/jch.v4i2.4140 triningsih, a. (2017). politik hukum pendidikan nasional: analisis politik hukum dalam masa reformasi. jurnal konstitusi, 14(2), 332. https://doi.org/10.31078/jk1425 utrecht, e. (1996) pengantar dalam hukum indonesia. jakarta: penerbit universitas. wahyono, p. (1986). indonesia negara berdasarkan hukum. jakarta: ghalia indonesia. wahyono, p. (1991). menelisik proses terbentuknya perundang-undangan. jakarta: forum keadilan http://creativecommons.org/licenses/by-nc-sa/4.0/ 690 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote “under a system in which no single question is submitted to the electorate for direct decision, an ardent minority for or against a particular measure may often count for more than an apathetic majority.” patrick devlin the enforcement of morals http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.goodreads.com/work/quotes/2233309 journal of law & legal reform volume 1(4) 2020 617 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia research article how does islamic law and national law look at the relinquishing of children's responsibilities to their parents? rokhmat sucipto sekolah tinggi agama islam walisembilan, semarang, indonesia  rokhmatsucipto2@gmail.com cited as sucipto, r. (2020). how does islamic law and national law look at the relinquishing of children’s responsibilities to their parents?. journal of law and legal reform, 1(4), 617-630. https://doi.org/10.15294/jllr.v1i4.39888 abstract the obligation of children to provide for their parents and the growing reality in indonesia today, many children leave their parents but give up their livelihood obligations. the question arises how the practice of releasing children from their parents at the wredha harapan ibu (pwhi) nursing home in bringin ngaliyan semarang is a perspective of islamic law and positive law. article 46 paragraph (2) marriage law number 1 of 1974. the research author uses descriptive analysis method that is analyzing information about the real situation now. the study uses field research with interview and documentation methods as well as taking various supporting literature to be used as a reference in the preparation of this stud y. this research approach is normative. the results of the author's research: first, first entrusted until now the parents have never filled their children. secondly, first of all, they are left with routine maintenance once fulfilled, but the habit does not last long. third, the first deposited until now has never given a living, but still gives a living only rarely given. in islamic law the release of parents' living is not in line with the teachings and recommendations of the islamic religion which are stated in the alquran and al-hadith as well as the agreement of the ulama as well as contrary to the positive law in force in indonesia as stated in the law article 46 paragraph (2) law number 1 of 1974 concerning marriage. keywords: parents rights; islamic law; national law; children responsibilities journal of law and legal reform (2020), 1(4), pp. 617-630. doi: https://doi.org/10.15294/jllr.v1i4.39888 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 11 april 2020, revised: 22 may 2020, accepted: 29 june 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://journal.unnes.ac.id/sju/index.php/jllr/article/view/39888 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/39888 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/39888 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/39888 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/39888 https://doi.org/10.15294/jllr.v1i4.39888 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 618 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 617 table of contents ………………………………………………………….. 618 introduction …………………………………………………………………. 618 method …………………………………………………………………………… 619 discussion ………………………………………………………………………. 619 analysis of islamic law on the release of children's livelihoods to parents at the harapan ibu wredha nursing home (pwhi) has to do with the implications of article 46 paragraph (2) marriage law no. 1 of 1974 ………… 624 conclusion …………………………………………………………………….. 628 references ……………………………………………………………………... 629 introduction children and parents have a close relationship and cannot be separated in the family environment. one of the obligations that must be fulfilled is fulfilling or providing a living, so that there is a very close reciprocal relationship between a child and parents as well as in terms of living (al-baihaqi, 789). in the book of islamic law, it is said, a person who has a spacious life means that he has the obligation to maintain or provide for his father's parents who are lacking, as well as the mother of his parents from both parties. (asef. a.a. fyzee, 1960). the obligation to provide for both parents as allah swt commands to his servants contained in the qur'an such as surah al-baqarah verse 215, al-israa 'verse 83, surat an-nisaa' verse 36, surah luqman verses 14 and 15, surat al-ankabut verse 8, surat al-halab verse 2, surat ath-thalaq verse 7 in which explains the obligation to provide for parents. parents are also included in some so-called relatives, but in islam the term is separated, especially in terms of living. obligation of children in providing a living is the right of parents to receive a living. the child's obligation to provide for his parents is confirmed in the word of allah al-baqarah [2]: 215) (ministry of religion of the republic of indonesia, 2007). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 619 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia method in this research the method used is descriptive analysis method, while the type of field research is research that relies on observations in field data collection such as the interview method (interview), documentation. because this concerns the issue of interrelation between the law and other social institutions, this research is a non doctrinal social study, or it can also be referred to as sociological legal research (social legal research). because this research is a sociological law research, it is emphasized on the value of benefit and the value of justice. the data sources are primary and secondary data. discussion 1. understanding making a living etymologically, living comes from arabic namely from the syllable anfaqa yunfiqu infāqan ( قفنا -قفنی -اقافنا ). in the arabic-indonesian dictionary, etymologically the word living is defined as the right to spend and/or spend (yunus, 1989). there are also those that specifically limit the definition of living to only three main aspects, food (mathˊam), clothing (malbas), and boards (maskan), even narrower than that is only on mathˊam (erfani, 2011; subaidi, 2014). 2. basic law of livelihood in terms of the obligation of children to provide for their parents has been affirmed based on the proposition of the qur'an, as-sunnah and ijma (agreement of the scholars) as well as positive law of indonesia. a) the basis of the qur'an yas-aluunaka maadzaa yunfiquuna qul maa anfaqtum min khayrin falilwaalidayni waal-aqrabiina waalyataamaa waalmasaakiini waibni alssabiili wamaa taf’aluu min khayrin fa-inna allaaha bihi ‘aliimun meaning: "they ask about what they spend. answer: "whatever wealth you give should be given to ladies and gentlemen, relatives, orphans, poor people and people who are on their way." and whatever good you make, then surely allah knows. "(q.s al-baqarah: 215) (erfani, 2011). http://creativecommons.org/licenses/by-nc-sa/4.0/ 620 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b) the basis of hadith the issue of income for both parents is also mentioned in the hadith of the prophet muhammad which is narrated by an-nasa’i: وابدأ مبن تعول أمك وأابك وأختك وأخاك أدانك أدانك "begin (give a living) to those who are your dependents, your mother, your father, your sister, your brother, and so on." (hr. an-nasa'i 1/350, ibnu hibban 810). c) the basis of ijma from the proposition ijmaˊ (consensus of the scholars) above, quoted by ibn almundzir states that scholars agree, it is obligatory for the child to provide for both parents who are poor and have no job (ibn qudamah al -maqdisi, 1432 h). d) positive law 1) marriage law no. 1 of 1974 article 46, which reads: 1. children should respect their parents and obey their good wishes. 2. when a child is an adult, he or she must keep his or her parents, and family in a straight line if they need help. 2) presidential instruction no. 1 1991 1991 compilation of islamic law (khi) in indonesia related to living obligations to parents as well as repayment of parental debt to others. in the compilation of islamic law at article 175 it is explained that when a parent dies and has debt then the child as heir has an obligation to settle his debts including medical expenses, treatment and more. 3) article 321 of the indonesian civil code: "the children are obligated to support their parents and blood relatives in the ascending line, in the event that they become destitute. (bw.311, 323, 329, 1282, 1296, 1429-3; rv.749-3; civ.205) 3. some limitations and development of case this research underlines some of the definitions and limitations related to cases of neglect by children in indonesia. some of the things underlined by the author are: 1) there is a family relationship (abidin & aminuddin, 1999). 2) the members of the household concerned need to make a living. 3) relatives who demand their living are not able/unable to work on their own (abidin & aminuddin, 1999). 4) the person burdened with the obligation of living is capable or rich, except in the matter of the maintenance of the mother being compulsory to the child, and the maintenance of the child obligated to the father. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 621 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia 5) the breadwinner and the breadwinner are religious, except in the matter of the father's maintenance of his son and of his parents' children. thus, regardless of the religion adopted by the parents, the capable child must provide for the parents, regardless whether or not the parent is the authority (basyir, 2004). then the obligation to provide for their parents, regardless of some conditions, are: 1) children in the comfort of wealth are to have enough food to eat at that time. 2) parents who have no assets. if the parents have the property, the child is not obligated to provide for the living even if the parents are in pain (zuhri & solomon, 1978). in this case ahmad bin hanbali said that when a child is in want or unemployment, his livelihood falls (sabiq, 1986). in the same way, when it comes to benefiting their property, they should put their parents first, because they have been educating and caring for them from childhood to adulthood (al-maraghi, 1984). furthermore, psychiatrists have determined that the family relationship that makes compulsory living is that there is a close family in need. however, they have differing opinions on who exactly the immediate family is. here are the 4 (four) opinions of jurists: 1) imam malik argues that the bread must be given by the father to the child, and then the child to the father and the mother and is limited only there. 2) this is a farce that is the narrowest determinant of the family relationships that make this living. and the priest reacted to the word of allah almighty qs al-israˋ: 23 (ministry of religion, 2007). 3) imam shafiˊi held that the maintenance should be given to all families with vertical and lower ties, without limiting it to certain members. 4) the hanafi held that the obligation to provide for the living was to all members of the family of the stranger, so that one should provide for all the families of the poor with him. imam hanafi quotes the word of allah swt q.s ar-romans: 3738 5) imam ahmad ibn hanbal was of the opinion that the maintenance should be given to all the surviving relatives, in case one of them died. so the neighborhood is expanding, including the whole family, strangers and non-strangers. ahmad ibn hanbal quotes the word of allah almighty qs al-baqarah: 233 according to ibn taimiyah, a rich child must provide for his father, mother, and younger siblings. if the child does not carry out the obligation, it means he has rebelled against his two parents and has broken off kinship. giving a living to both parents is an obligation, the obligation is not a form of voluntary giving or giving, but a http://creativecommons.org/licenses/by-nc-sa/4.0/ 622 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia virtue (syahatah, 1998). thus, the livelihood obligations apply to children when both parents are no longer strong enough to try and do not have wealth (basjid, 1976). because basically the child and his property are still owned by parents. abdullah bin amr reported that one of his companions came to the prophet and asked about his possessions but he had poor parents. he then asked if he was obliged to provide for his parents? the prophet answered: "indeed, you and your property belong to your parents. and your children are part of your good income, then eat from your children's income” (hr. tirmidzhi). in this case the obligation to provide for the parents by the child is indeed something that is mandatory, but there are exceptions include: 1) although children are obliged to provide for their parents, but if parents do not want to because it is very rich or because of other things, then the legal obligation is lost. 2) if the child is really unable or not strong enough to try, then the law must be null and void (hasyim, 1990). the study revealed that there are some facts that happened at wredha harapan ibu (pwhi) bringin ngaliyan semarang, some from the beginning left their parents until now never fulfilling all their needs, both material or immaterial needs, especially regarding material living which results in neglect of parents. by child. regarding material needs such as clothing, food and shelter, for immaterial needs such as giving attention and affection, respect, pray, obey and avoid everything that hurts him. it is also never given to children by their parents, so that children openly give u p their livelihood obligations and ignore their rights and responsibilities as a person. the occurrence of release of livelihood since the beginning entrusts until now on thi s problem cannot be separated from the problem in the body of the child's family, all caused by: 1) busyness of the child so that they cannot take care of their parents at home. 2) disharmony / always in conflict with parents and there is a misunderstanding between children and parents because of the love that must be divided. 3) because parents do not want to trouble the family in caring for them. 4) because of the physical and psychological condition of parents. from this cause, the child or family who relinquishes their livelihood obligations until they leave their parents in the ngaliyan harapan ibu (pwhi) nursing home semarang turned out to be neglected with conditions that have no living costs and are unable to find a source of livelihood, so that their daily need s rely http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 623 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia solely on the twelve sorry for the orphanage. whereas there is also the existence of parents who, when entrusted at the orphanage by their children, are related to their obligation to provide a living to meet all the needs of parents while living in the orphanage, apparently routinely given every month and their livelihoods are often met. this habit does not last long only lasts at the beginning of day care and only runs about two months. so that after the increasing presence of parents in the orphanage, the income that should be received every month for their daily needs turns out that from time to time there is no longer providing child support for their parents. while the problems related to the release of parents 'living by children in the wredha harapan ibu (pwhi) bringin ngaliyan semarang home apparently there is still also the release of the parents' living, when they first entrusted their parents up to now they have never been given a living, even though they still provide a living. but only modest and rarely given. responsibilities and obligations as a child to support his parents are still very rarely given, it is almost not given at all but when giving his income is inadequate or just enough. seeing so much the needs of parents in the orphanage, material livelihood that should be received is almost never given only enough for the needs of a few days, although still given but not how much given. for the needs of immaterial living alone is not given at all from the beginning of care until now has never been given. from a number of different parental backgrounds, it turns out that it is owned by parents who still have biological children and families, where the biological children have enough income and have their own place of residence that the child should be obliged to finance all their needs and it turns out that the parents are only abandoned or abandoned left to stay at the orphanage, even though parents previously objected to being entrusted and to find out the condition of the parents at the orphanage how it is often said that the caregivers first contacted their children to notify their condition. when tracing back the case of parents who were entrusted at the wredha harapan ibu (pwhi) bringin ngaliyan semarang, it turned out that all the necessities of life of parents both material or immaterial have not been fulfilled their living rights. http://creativecommons.org/licenses/by-nc-sa/4.0/ 624 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia analysis of islamic law on the release of children's livelihoods to parents at the harapan ibu wredha nursing home (pwhi) has to do with the implications of article 46 paragraph (2) marriage law no. 1 of 1974 as the author has explained in the previous discussion, there is a release of parents 'living by the child that occurs at the panti wredha harapan ibu (pwhi) bringin ngaliyan semarang, so that from the discussion above there have been many problems relating to the release of parents' living by the child the in pwhi. various problems of parents who are entrusted in the orphanage are those from the time when they were entrusted until now their children relinquished their parents' livelihood obligations, and some at the beginning of day care provide for their daily needs until after now there is no visible gift from their children, until there was a person who was entrusted until now until he was not given his living, although he still only gave but was not able to meet all his needs. basically, the obligation of children to provide for their parents has been established in islamic law and positive law in indonesia. the obligation of the child to support the parents in the family has been affirmed based on general instructions, namely the word of god in the al-baqarah verse 215, which talks about the obligation of the child to provide for parents (department of religion, 2007). and confirmed again in the word of god q.s al-isra, 17: 26. the verse confirms the relationship between children and parents is a relationship that is very close and inseparable. the obligation to provide for parents is also mentioned in the hadith of the prophet muhammad which is narrated by annasa’i: "begin (give a living) to those who are your dependents, your mother, your father, your sister, your brother, and so on." (hr. an-nasa'i 1/350, ibn hibban 810, and altered by al-albani in irwa 'al -gholil 3/322). of all the scholars of the four schools have agreed, that children have the obligation to provide for their biological parents if they are no longer able to work, do not have income to meet their needs (ibn qudamah al-maqdisi, 1432 h). the scholars of the school of thought differed regarding who are the people who are entitled and obliged to provide for their living and what are the conditions. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 625 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia a. imam hanafi argues, the main requirement for the necessity of living towards relatives is the existence of a relationship that causes marriage forbidden between them, the obligation includes father to up and children to the bottom (mughiyah, 1999). b. imam maliki said that living is only mandatory for both parents and children who are direct descendants and does not include others. c. imam hanbali said, fathers and so on must oblige and be entitled to a living. likewise, for children who continue to go down, with the condition that the person who provides the living has the right to inherit the person who is given a living (mughiyah, 1999). d. imam shafi'i said that children are obliged to provide for their parents and continue to be above both male and female, just as parents provide for their children to continue downward. this obligation does not cover people who are outside the nasab line, such as uncle, both from the path of the mother and father's path (mughiyah, 1999). the scholars of madzhab determined that basically they could not leave their parents in a nursing home, unless they were in a very forced condition and based on their desires, permits and willingness, and were not forced to be caused by their parents' bad behavior (yamami, 2005). as long as there are regulations that allow the child to leave his parents in an orphanage for reasons that are acceptable with the terms and conditions that apply according to customs, culture or beliefs, all of which are fine as long as they do not violate the applicable rules. basically the obligations of children to their parents must be fulfilled directly by their children, but for reasons that are justified by syara 'then the child may carry out obligations to his parents indirectly by representing or entrusting to someone or a social institution such as a nursing home. the existence of elderly parents has been explained in law no. 4 of 1965 chapter 1 article 1. according to law no. 13 of 1998 concerning elderly welfare in chapter i article 1 paragraph 4 stated that: "elderly potential is the elderly who are powerless to make a living so that their lives depend on the help of others". so, based on the act clearly states that the existence of parents is need of assistance in the form of a living to meet the needs of life and prosperity. according to law no. 13 of 1998 concerning elderly welfare in chapter i article 1 paragraph 4 stated that: "elderly potential is the elderly who are powerless to make a living so that their lives depend on the help of others". as a child, he is obliged to pay respect to his parents and obey all his commands both in looking after and caring for him and providing all the necessities needed when the parents are entrusted with pwhi, the statement is explained in the marriage law no. 1 of 1974 article 46 paragraph (1). furthermore, related to the http://creativecommons.org/licenses/by-nc-sa/4.0/ 626 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia release of the parents' living at the panti wredha harapan ibu (pwhi) ngaliyan semarang a few children who abandoned their parents without any provision of living to live their lives, as well as the lack of extra and special attention from the child to parents both material or immaterial living. . if reviewed with positive law / legislation in force in indonesia, namely article 46 paragraph (2) marriage law number 1 of 1974 concerning marriage which states that: "if the child is an adult, he is required to maintain according to his ability, parents and family in a st raight line up, if they need their help". while in the child protection act article 19 letter (a) also states that: "every child has an obligation to respect parents, guardians and teachers" (child protection act). some previous researches also emphasized that there are relationship between moral obligations and responsibilities in the case of parents and children in home for elderly, like pwhi (smeeton, 2011; ardiansyah, nggeboe, & harris, 2017; latifiani, arifin, & ramadhanty, 2018; faridah & afiyani, 2019; dewi & arifin, 2019; muntamah, latifiani, & arifin, 2019). therefore every child has moral obligations and responsibilities towards parents who have raised and nurtured him from childhood to adulthood (shihab, 2005). welfare itself, especially for parents, is when the needs are fulfilled from the child or from family and relatives. in the government regulation of the republic of indonesia no. 43 of 2004 concerning the implementation of efforts to improve social welfare of elderly article 1, which explains the purpose of welfare. the prohibition of someone who has grown up not to give up the obligation to provide for the sake of the survival of people in his old age, the prohibition has been regulated in article 9 paragraph (1) of law number 23 year 2004 concerning the elimination of domestic violence which says that: "everyone is prohibited from neglecting people within the scope of his household, even though according to the law in force for him or because of an agreement or agreement he is obliged to give life, care, or care to that persoz" (djubaidah, 2010). as for the sanctions related to someone who relinquished his livelihood obligations resulting in neglect of others within the scope of the household as referred to in article 9 paragraph (1) of the pkdrt act (substitute for domestic violence) based on article 49 letter (a) of the pkdrt law is a prison sentence a maximum of 3 (three) years or a maximum fine of rp. 15,000,000.(fifteen million rupiah) (djubaidah, 2010). then in the compilation of islamic law (khi) explains about the obligation to make a living to parents only related to the payment of parental debt to others. furthermore, in article 175 of the compilation of islamic law (khi) it is http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 627 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia explained that if a parent dies and has a debt, the child as an heir has an obligation, namely to settle his debts in the form of medication, care and others. so the responsibility of the heirs (children) for the debts of parents is limited to the amount or value of parental inheritance. therefore, if a parent's debt exceeds his inheritance, then a child is not required to pay the parent's debt to someone else. so islamic law lays down the prohibition of giving up livelihood by the child to the parent, because giving income to the parent is the child's obligation and responsibility as a form of reciprocity of the child to the parent who has been raised from childhood to adulthood. so that islamic law provides provisions for parents who receive a living in a state of poverty and are unable to make a living because they are old or sickly as well as children who are mature and have good fortune (able) to provide for both parents and are not allowed by the state and religion. for the authors of the matter, it is very contradictory to article 46 paragraph (2) of the marriage law number 1 of 1974 and is not in line with the aims and objectives of the act. with the proven release of living at the orphanage, it shows that the mandate of the act is not realized and does not provide full awareness of the importance of the child's role in the obligation and responsibility to provide for when parents need help. therefore, the marriage law in article 46 paragraph (2), according to the author, does not provide a confirmation of the obligation to provide for parents. for the sake of legal certainty there needs to be strict sanctions if the child intentionally and blatantly releases his obligations and responsibilities for his livelihood to parents. so the existence of this law can not guarantee the fulfillment of their living rights, so far the condition of parents is still suffering and losses due to the release of parents' living by the child in the orphanage. from this the lack of serious attention to the obligations and responsibilities of children in meeting their parents' living needs as stipulated in article 46 paragraph (2) of marriage law no. 1 of 1974 concerning marriage. the lack of effectiveness of the act has a significant impact on children's understanding of their obligations to provide for their parents in the form of material or immaterial living. in this case, the author states that there are still many acts that violate or violate the law as well as the neglect of the law by children regarding their obligation to provide for living when parents are in the institution, as is the case in the bringin ngaliyan nursing home (pwhi) bringin ngaliyan semarang. the law is not aware of children and is not applied among families who entrust their parents to be changed so that their duties and obligations to provide for living are not implemented and apparently do not guarantee the fulfillment of the living rights of parents and also the lack of legal certainty in efforts to realize the lives of parents who happy and prosperous, and not http://creativecommons.org/licenses/by-nc-sa/4.0/ 628 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia being able to become a legal umbrella to demand when their living rights from the children are not fulfilled. the author concludes that the problem of releasing a living in the panti wredha harapan ibu (pwhi) bringin ngaliyan semarang is very contradictory or against islamic law and is not in line with the aims and objectives of the act, namely article 46 paragraph (2) marriage law number 1 of 1974 which regulates the obligation of children to support their parents. therefore, legal firmness and strict sanctions are needed so that the rights of parents are protected because the problem of living is a basic necessity in life and is an obligation from the child to the parent. so that positive law in indonesia must be firm, clear and detailed related to sanctions for the release of parents' livelihoods and the enforcement of laws based on justice. conclusion this study highlighted and concluded that, in principle, children are obliged to provide for their parents and are responsible for looking after and caring for them instead of running away from responsibility by putting them in a nursing home, apparently there are still children who run and release their livelihood obligations to parents. as for the practice of releasing a living that occurs in nursing homes, there are some point emphasized, that first there are those who during the period of care from the first time they are deposited in the orphanage for many years until now have never once fulfilled the needs of parents for their children. second, there is also the existence of parents who when first deposited at the orphanage by their children in connection with the obligation to earn a living were routinely given every month and their livelihoods were often met. but the habit does not last long only lasts at the beginning of day care and runs for only a few months, in fact from time to time there is no longer providing child support for their parents until now. third, there are those who first left their parents until now they have never been given a living, but when they still provide only a modest income and still very rarely given. forth, according to islamic law towards children who entrust their parents at the wredha harapan ibu (pwhi) bringin ngaliyan semarang until the release of a living which results in neglect of parents in the orphanage, it turns out the child does not carry out responsibilities and obligations to provide for living and does not meet all the needs of people old. this is clearly not in line with the teachings and recommendations of the islamic religion which are stated in the al-quran and al-hadith as well as the ulama's agreement. the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 629 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia case also contradicts the positive law in force in indonesia as stated in article 46 paragraph (2) of law number 1 of 1974 concerning marriage. references a.a. fyzee, a. 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(1978). terjemahan kifayatul akhyar. semarang: cv toha putra. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 591 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article informed consent in health services: how are the patients’ rights protected? candra istiningsih dwi wahyuni1, batari laskarwati2, noer muthmainnah al qulub3 1 health worker, association of indonesian ear and nose throat and ear surgery 2 postgraduate program, master of laws, universitas negeri semarang 3 faculty of law, universitas negeri semarang  umi_khaerah@staff.uns.ac.id cited as wahyuni, c. i. d., laskarwati, b., & al qulub, n. m. (2020). informed consent in health services: how are the patients’ rights protected?. journal of law and legal reform, 1(4), 591-604. https://doi.org/10.15294/jllr.v1i4.39891 abstract this study aims to analyze the rights of patient in medical services case on batara siang hospital. this study was triggered by various problems regarding the privacy rights of patients in health services. informed consent is an explanation by the doctor related to the condition of the patient's illness and the medical action that the doctor will take to cure the patient and then from the explanation explained by the doctor get the consent of the patient or the patient's family. before giving emergency measures, the batara siang hospital also applies an informed concentration republic of indonesia health minister regulation number 585/men.kes/per/x/1989. this study revealed that batara siang hospital always applies informed consent before taking medical or medical measures, but for emergency cases it is excluded because it concerns the lives of patients. keywords: informed consent, patient rights, health services, privacy rights journal of law and legal reform (2020), 1(4), pp. 591-604. doi: https://doi.org/10.15294/jllr.v1i4.39891 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 15 may 2020, revised: 10 june 2020, accepted: 28 june 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:roziyah307@uitm.edu.my https://doi.org/10.15294/jllr.v1i4.39891 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 592 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 591 table of contents ………………………………………………………….. 592 introduction …………………………………………………………………. 592 theoretical basis …………………………………………………………… 594 method …………………………………………………………………………… 596 informed consent (approval of medical measures) in the health law perspective …………………………………………… 597 i. informed consent in the regulation of the minister of health on approval of medical measures …………... 597 ii. informed consent in batara siang hospital perspective of the regulation of the minister of health on approval of medical measures ………………… 599 conclusion …………………………………………………………………….. 601 references ……………………………………………………………………... 602 introduction law no. 44 of 2009 concerning hospitals has been emphasized that hospital is a health service institution that conducts complete individual health services that provide inpatient, outpatient and emergency services, one of which is to provide protection to patient, community, hospital environment and human resources at home sick by continuing to improve quality and maintain hospital service standards. the relationship between doctors and patients formed in the community is a relationship that has been known since the bc era which is known since the discovery of codex hammurabi where the discovery regulates the obligations between doctors and patients (ramadianto, 2017; hidayati, 2018). a medical emergency is a condition that occurs unexpectedly and requires prompt treatment so as not to cause more severe damage. in this situation, the doctor has an obligation to immediately provide health efforts for the safety of his patients. however, in certain cases, medical emergencies require quite a risky treatment so that there must be responsibility for the patient. therefore, medical approval is needed or known as informed consent. informed consent comes from two words, namely informed which means that it has received an explanation or information and consent which means approval or giving permission (nurrobhika, 2015). doctors have an obligation to immediately http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 593 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia provide health efforts for the safety of their patients. however, in certain cases, medical emergencies require quite a risky treatment so that there must be responsibility for the patient. therefore, medical approval is needed or known as informed consent. informed consent comes from two words, namely informed which means that it has received an explanation or information and consent which means approval or giving permission (nurrobhika, 2015: 28). doctors have an obligation to immediately provide health efforts for the safety of their patients. however, in certain cases, medical emergencies require quite a risky treatment so that there must be responsibility for the patient. therefore, medical approval is needed or known as informed consent. informed consent comes from two words, namely informed which means that it has received an explanation or information and consent which means approval or giving permission (nurrobhika, 2015). informed consent is a tool to determine the patient's own fate in medical action, so that patients can only give concrete approval if the patient can receive and understand the contents of information about the actions to be given (komalawati, 2002). approval of medical action is used as a form of guarantee or responsibility for an action and the consequences arising from the actions of doctors in providing health care to the patient concerned. doctors in providing a health effort in medical emergencies require a legal basis to protect the doctor itself. approval of medical treatment is used as proof that the patient's family has agreed on the health efforts to be undertaken by the doctor in handling his patients. the agreement is made after the patient gets a complete explanation from the doctor about the diagnosis and procedures for medical treatment, the purpose of the medical action taken, other alternative actions and risks, risks and complications that may occur and the prognosis for the actions taken (hanafiah, 2008). in diagnosing patients, doctors are required to provide explanations/information about matters relating to health problems experienced by patients correctly and honestly (bertens, 2013). the principle of informed consent is made to respect human dignity that is free and autonomous where each human being is free to determine for themselves what will be done or will not be made as emphasized by jackson (2009) the purpose of the medical action taken, alternative other actions and risks, risks and complications that may occur and the prognosis for the actions taken (hanafiah, 2008). in diagnosing patients, doctors are required to provide explanations or information about matters relating to health problems experienced by patients correctly and honestly (bertens, 2013: 141). the principle of informed consent is http://creativecommons.org/licenses/by-nc-sa/4.0/ 594 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia made to respect human dignity that is free and autonomous where each human being is free to determine for themselves what will be done or will not be made (jackson, 2009) the purpose of the medical action taken, alternative other actions and risks, risks and complications that may occur and the prognosis for the actions taken (hanafiah, 2008). this study analyzes the informed consent implementation in batara siang hospital. batara siang hospital is a regional hospital on jl. sultan hasanuddin no. 7 pangkajene, padoang doangan, pangkajene, south sulawesi. batara siang hospital has a slogan committed to improving the quality of public services that focus on patient safety. service facilities owned by batara siang hospital include: emergency room, inpatient, outpatient, surgical, labor and perinatology, radiology, clinical pathology, physiotherapy, pharmacy, nutritional installation, laboratory, medical checkups. one of the legal basis for approval of medical action or informed consent is contained in the regulation of the minister of health of the republic of indonesia number 290/menkes/per/iii/2008 concerning approval of medical action. in the event of a medical emergency, where there must be a risky treatment, batara siang hospital carries out health efforts preceded by an approval of medical action or informed consent in accordance with the regulation of the minister of health of the republic of indonesia number 290 / menkes / per / iii / 2008 concerning approval of actions medical. a doctor is very important to know informed consent, because the lack of doctor's knowledge related to the legal consequences of informed consent can lead to a lack of doctor's compliance in carrying out informed consent. doctors who have good knowledge of the rule of law and the provisions of the application of informed consent, will consciously obey implement the informed consent (khasna, 2016: 46). the full medical consent or informed consent will be explained in this journal. theoretical basis therapeutic agreements are agreements made between doctors and health workers and patients, in the form of legal relationships that give birth to rights and obligations for both parties (cecep, 2010). whereas informed consent is an agreement given by a patient or guardian who is entitled to the doctor to perform a medical action against the patient after obtaining complete information and who understands about the action (haryani & wen, 2016). in order for agreements made by doctors and patients to be legal according to the law, an informed consent is needed (achmad, 2018). the implementation of invasive medical procedures must http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 595 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia obtain the consent of the patient or family, manifested in the form of an informed consent document (azwar, 1996). in general the risks raised are those that can be understood by the patient in deciding a choice with other alternative medical measures, so only the risks and benefits that can be understood by the patient must be stated (achmad, 2006). approval of medical measures is needed to prevent something undesirable and to ensure legal certainty. the need for consent from the patient and to avoid having one of the injured parties, the doctor must provide information as clearly as possible so that patients can consider what will happen to him (suprapti, 1994). law no.29 of 2004 concerning medical practices listed in article 45 paragraph (1) states that "every medical or dental action to be performed by a doctor or dentist on a patient must obtain approval". form of approval of medical treatment (amril, 1997), namely: a. implied consent (considered given) in general, implied consent is given under normal circumstances, which means the doctor can catch the approval of the medical action from the cues given / carried out by the patient. b. expressed consent(stated) can be stated in oral or written form. in medical actions that are invasive and contain risks, doctors should obtain written approval, or what is generally known in hospitals as operating licenses. medical personnel who are in the position of service providers (medical providers) and patients as recipients of services (medical receivers) have the rights and obligations that must be respected, so, there needs to be an informed consent (sakir, 2017). the purposes of the informed consent as highlighted by guwandi (2005), are: a. protect the patient against all medical actions carried out without the patient's knowledge b. providing legal protection against unforeseen and negative consequences, for example against risk of treatment that is impossible to avoid even if the doctor has tried as much as possible and acted very carefully and thoroughly. furthermore, pratita (2013) explained the procedure for providing informed consent information is as follows: a. the purpose of the informed consent is getting enough information to make a decision on the action to be carried out. the patient's right to determine his destiny can be fulfilled perfectly if the patient has received all the necessary information so that the patient can make a decision. b. the doctor has an obligation to inform the patient of the condition, diagnosis, differential diagnosis, supporting examinations, therapies, risks, alternatives, http://creativecommons.org/licenses/by-nc-sa/4.0/ 596 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia prognosis and expectations. doctors should not reduce the material to force patients to immediately make a decision. c. not all patients may give statements, both agree and disagree. the patient must be an adult, with the age of 21 years, patients under 21 years in a conscious state, can be invited to communicate naturally and smoothly and in a healthy state of mind. d. the form of consent must be based on all elements of true informed consent, namely knowledge and competence. some hospitals and doctors have developed for approval that summarizes all information and also permanent records, usually in the patient's medical record. e. all information must be received by the patient before the planned medical action is carried out. providers of this information should be objective, impartial, and without pressure, after receiving all the information patients should be given time to think and decide on a balance. f. the process of providing information and requesting approval for medical action may not be carried out by a doctor, if the patient is in an emergency condition. in this condition, the doctor will prioritize actions in saving the lives of patients. however, the procedure for saving lives of patients is still carried out in accordance with service standards accompanied by high professionalism. method this study uses qualitative methods, where this research is exploratory with a phenomenological approach. qualitative methods are research procedures that produce qualitative data, about the person's own expressions, or notes or their observed behavior (bogdan, 1993). this study allows researchers to obtain in-depth answers about people's opinions and feelings (samino, 2014). the informant in this study was dr. annas achmad, spb is the director of batara siang hospital which was held on february 12, 2020. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 597 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia informed consent (approval of medical measures) in the health law perspective i. informed consent in the regulation of the minister of health on approval of medical measures therapeutic agreement is an agreement between a doctor and a patient that gives the authority to the doctor to carry out activities to provide health services to patients based on the expertise and skills possessed by the doctor. in the preamble of the indonesian medical ethics code which is attached to the decree of the minister of health of the republic of indonesia number 434 / men.kes / x / 1983 concerning the applicability of the indonesian medical ethics code for doctors in indonesia, states about therapeutic transactions as follows: "therapeutic transactions are the relationship between doctors and patients and sufferers carried out in an atmosphere of mutual trust (confidential), and are always overwhelmed by all the emotions, hopes and concerns of human beings". article 1 paragraph 1 of the regulation of the minister of health of the republic of indonesia number 290/menkes/per/iii/2008 explaining informed consent or approval of medical action is approval given by the patient or immediate family after obtaining a complete explanation of the medical or dental action that will be performed on the patient (permenkes, 2008). approval of this procedure is aimed at competent patients (adults) or the immediate family/guardians of patients where these people are people who are entitled to approval of medical procedures. the patient's family in question is the husband or wife of the patient, the father or biological mother of the patient, the biological children and siblings of the patient as well as those who care for the patient concerned. article 1 paragraph 6 of the regulation of the minister of health of the republic of indonesia number 290/menkes/per/iii/2008 explained medical or dentist actions in this regulation are in the form of preventive, diagnostic, therapeutic or rehabilitative medical actions performed by doctors or dentists on patients. doctors or dentists who deal with patients in this regulation are doctors, specialists, dentists and dentists who have graduated from medical or dental education both domestically and abroad that are recognized by the government of the republic of indonesia in accordance with statutory regulations (permenkes, 2008). http://creativecommons.org/licenses/by-nc-sa/4.0/ 598 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia all actions taken by a doctor on a patient must obtain approval where the consent is written or oral and before the consent is given, the patient or family must be given an explanation of the need for medical action. in cases where the patient's condition must be given a high-risk medical treatment, it can be in the form of oral consent in the form of an agreement or nodding head which is interpreted as a statement of agreement. however, if it is considered doubtful, written approval can be sought. approval of medical treatment is not necessary for situations where the patient is in an emergency, where the doctor acts to save the patient or prevent disability. approval of medical action can also be canceled or withdrawn by the decision maker before the medical action starts where the one responsible for all impacts arising from the cancellation of the action is what invalidates the medical action. regulation of the minister of health of the republic of indonesia number 290 / menkes/per/iii/2008 concerning approval of medical measures, article 7 (paragraph 3): explanation as referred to in (paragraph 2) at least includes: a. diagnosis and procedure of medical treatment; b. the purpose of the medical action carried out; c. other alternative actions, and risks; d. possible risks and complications; and e. prognosis of actions taken. f. estimated financing the authors added that related to the completeness in filling out the informed consent form. quoting herfiyanti's opinion, which states that completeness of completing the informed consent surgical form consists of: patient identity (patient's name, age, gender, address, medical record number), patient's family identity information (name of consent, age, sex, address, relationship with patient, date of consent), type of action, type of information (occupational diagnosis, differential diagnosis, medical action, indication of action, procedure, goals, risk of action, complications, prognosis, alternatives and risks, etc.), and authentication information which includes the name and signature of the doctor, the name and signature of the patient or family of the patient, and the names and signatures of witnesses (herfiyanti, 2015). the function of the completed informed consent sheet can be used for various purposes. these requirements include as evidence in lawsuits, research and education materials and can be used as a tool for analysis and evaluation of the quality of services provided by hospitals (oktavia, 2020). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 599 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ii. informed consent in batara siang hospital perspective of the regulation of the minister of health on approval of medical measures informed consent it is very important for the patient and the patient's family because informed consent is used as a guide or guide to the legal procedures of every medical action performed on the patient. this was stated by dr. annas achmad, spb. “informed consent is very important as a guide for legal procedures for every medical action performed. ic is a legal standing in performing medicinal measures on a patient both small and large procedures” (personal interview 12 february 2020 at 21.31 wib) how to deliver informed consent on batara siang hospital services according to dr. annas achmad, spb. has been carried out according to existing standards that is in accordance with the rules of the regulation of the minister of health of the republic of indonesia number 290 / menkes / per / iii / 2008 regarding the approval of medical measures in accordance with those stated namely: "the way to deliver informed consent to patients and families is to provide a form that has been set according to the standard, provide an explanation according to the request form, ask the patient and family to ask if there are still things to be known. ic is performed by doctors to patients and families where if the patient has agreed to the action taken, the patient or family, the doctor and two witnesses must provide a signature as proof of the purpose of the action. likewise, if you refuse action” (personal interview 21 february 2020 at 21:25 wib) dr. annas achmad, spb. as the managing director of batara siang hospital always applies informed consent before taking medical or medical measures, but for emergency cases it is excluded because it concerns the lives of patients. this was stated by dr. annas achmad, spb. "informed consent must be carried out before medical treatment except in emergency cases where if it is not done immediately then the patient is confirmed to be medically dead, for example such as cases of respiratory arrest and cardiac arrest" (personal interview 12 february 2020 at 21.35 wib) http://creativecommons.org/licenses/by-nc-sa/4.0/ 600 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the exception of the informed concent is also justified in the rules of the regulation of the minister of health of the republic of indonesia number 290 / menkes / per / iii / 2008 regarding the approval of medical measures as stipulated in article 4 paragraphs (1) and (2) where in article 4 paragraph (1) it reads "in an emergency, to save a patient's life and / or prevent disability there is no need for approval of medical measures" and article 4 paragraph (2) which reads "the decision to take medical action as referred to in paragraph (1) is decided by a doctor or dentist and recorded in the medical record" (permenkes, 2008). medical record makers must also have competence where medical recorder competence must be able to determine disease codes and actions appropriately in accordance with the classification in force in indonesia (icd-10 and icd-9-cm), perform duties in providing high-quality medical records and health information services with due regard to laws and ethics applicable profession, managing medical records and health information to meet the needs of medical services, administration, and health information needs as material for decision making in the health sector (ministry of health ri, 2007). however, competence must not only be possessed by medical personnel, but also includes patients. a patient is said to be competent if he is able to understand the procedure, consider the risks and benefits, and make decisions according to his understanding and his personal values and goals (kusmaryanto, 2015; jafar 2020). in this regard, the responsibility of medical records for treating doctors is, among others, responsible for the completeness and correctness of the contents of the medical record (suprapti, 2001). dr. annas achmad, spb. as the managing director of batara siang hospital has not found conflict because of handling emergency cases without informed consent as stated: "i have never found a conflict due to handling emergency cases without informed consent” (personal interview 12 february 2020 at 21.40 wib). the special requirements for doctors who deliver informed consent are doctors who take the informed consent action themselves because the doctor has an understanding of what will be done and the impact that will be caused, as stated by dr. annas achmad, spb as follows: "special requirements for doctors who deliver ics are doctors who will immediately carry out the action themselves so that they http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 601 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia understand what and what if the action is carried out" (personal interview 12 february 2020 at 21.53 wib) the implementation of medical emergency we know that doctors have legal protection in carrying out their medical actions. how is the doctor's responsibility or what action is taken if the doctor negligence? doctor in carrying out a medical action are responsible for what they do. the doctor's responsibility is to save patients who are in emergency cases that the doctor is holding on tostandard operating procedure (sop) or permanent procedure (sopap). in accordance with stated bydr. annas achmad, spb: "the doctor's responsibility is to take medical action according to known standards or procedures. in every emergency case, anyone especially the doctor who is able to carry out compulsory actions to carry out medical help without ic because it involves the safety of someone who if not done, the patient will die immediately"(personal interview 12 february 2020 at 21.53 wib). the legal strength of the approval of medical action lies in the implementation of the approval of medical measures as stipulated in the law. if the approval of medical action is in accordance with the rule of law, then the approval of medical action will provide legal certainty for doctors (amin, 2019: 10). protection is not only for doctors, but also for patients because this informed consent will provide legal protection to patients and protect health workers / doctors from disproportionate demands from the patient (hanafiah & amri, 2012). conclusion this study highlighted and concluded that therapeutic agreement is an agreement between a doctor and a patient that gives the authority to the doctor to carry out activities to provide health services to patients based on the expertise and skills possessed by the doctor. preamble to the indonesian medical ethics code which is attached to the decree of the minister of health of the republic of indonesia number 434/men.kes/x/1983 concerning the applicability of the indonesian medical ethics code for doctors in indonesia, stating the therapeutic transaction as therapeutic transaction is the relationship between doctor and patient and patient carried out in an atmosphere of mutual trust (confidential), and is always overwhelmed by all the emotions, hopes and fears of human beings. in the context of batara siang hospital, http://creativecommons.org/licenses/by-nc-sa/4.0/ 602 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this hospital has been running an informed consent in accordance with permenkes ri number 585/men.kes/per/x/1989. based on the statement from dr. annas achmad, spb. as the main director of batara siang hospital, that the batara siang hospital always applies informed consent before taking medical or medical measures, but for emergency cases it is excluded because it concerns the lives of patients. this is done to ensure the existence of legal certainty and prevent something that is not desirable. references amri, a. 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(2007). decree of the minister of health of the republic of indonesia no 337 of 2007 concerning professional standards for medical recorders and health information [keputusan menteri kesehatan ri no 337 tahun 2007 tentang standar profesi perekam medis dan informasi kesehatan]. available online at http://akademiperekammedis.ac.id/wphttp://creativecommons.org/licenses/by-nc-sa/4.0/ https://ejournal3.undip.ac.id/index.php/jkm/article/view/11576 http://dx.doi.org/10.33560/.v3i2.89 https://doi.org/10.25311/keskom.vol3.iss2.103 http://dx.doi.org/10.33560/jmiki.v8i1.246 http://dx.doi.org/10.28946/sc.v24i1%20jan%202017.45 http://akademiperekammedis.ac.id/wp-content/uploads/2013/04/kmk_no._377-ttg_standar_profesi_perekam_medis_dan_informasi_kesehatan.pdf 604 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia content/uploads/2013/04/kmk_no._377ttg_standar_profesi_perekam_medis_dan_informasi_kesehatan.pdf republic of indonesia. (2008). regulation of the minister of health of the republic of indonesia number 29 /menkes/per/iii/2008 concerning approval of medical actions [peraturan menteri kesehatan republik indonesia nomor 290/menkes/per/iii/2008 tentang persetujuan tindakan kedokteran]. available online at http://www.idionline.org/wpcontent/uploads/2010/03/pmk-no.-290-ttg-persetujuan-tindakankedokteran.pdf republic of indonesia. (2009). law of the republic of indonesia number 44 of 2009 concerning hospitals [undang-undang republik indonesia nomor 44 tahun 2009 tentang rumah sakit]. available online at https://kesmas.kemkes.go.id/perpu/konten/uu/uu-nomor-44-tahun-2009-ttgrs samino, s. (2016). analisis pelaksanaan informed consent. jurnal kesehatan, 5(1), 71-78. http://dx.doi.org/10.26630/jk.v5i1.69 suprapti, r. s. (2001). etika kedokteran indonesia. jakarta: yayasan bina pustaka sarwono prawirodihardjo. triwibowo, c. (2010). etika & hukum kesehatan. yogyakarta: nuha medika gde. veronica, k. (2002). peranan informed consent dalam transaksi terapeutik. bandung: citra aditya http://creativecommons.org/licenses/by-nc-sa/4.0/ http://akademiperekammedis.ac.id/wp-content/uploads/2013/04/kmk_no._377-ttg_standar_profesi_perekam_medis_dan_informasi_kesehatan.pdf http://akademiperekammedis.ac.id/wp-content/uploads/2013/04/kmk_no._377-ttg_standar_profesi_perekam_medis_dan_informasi_kesehatan.pdf http://www.idionline.org/wp-content/uploads/2010/03/pmk-no.-290-ttg-persetujuan-tindakan-kedokteran.pdf http://www.idionline.org/wp-content/uploads/2010/03/pmk-no.-290-ttg-persetujuan-tindakan-kedokteran.pdf http://www.idionline.org/wp-content/uploads/2010/03/pmk-no.-290-ttg-persetujuan-tindakan-kedokteran.pdf https://kesmas.kemkes.go.id/perpu/konten/uu/uu-nomor-44-tahun-2009-ttg-rs https://kesmas.kemkes.go.id/perpu/konten/uu/uu-nomor-44-tahun-2009-ttg-rs http://dx.doi.org/10.26630/jk.v5i1.69 journal of law & legal reform volume 2(4) 2021 481 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article hajj pilgrims’ abandonment: the protection for consumer (case of pt anugrah karya wisata utama and pt abu tours & travel) sekar arum rahmawati1 1 universitas jabal ghafur, sigli, aceh, indonesia  sekararum9898@gmail.com cited as rahmawati, s. a. (2021). hajj pilgrims’ abandonment: the protection for consumer (case of pt anugrah karya wisata utama and pt abu tours & travel). journal of law and legal reform, 2(4), 481-492. https://doi.org/10.15294/jllr.v2i4.48764 submitted: december 7, 2020 revised: march 11, 2021 accepted: july 11, 2021 abstract people are encouraged to selectively choose a trusted umroh travel agency. first travel and abu travel has violated article 65 letter a government regulation number 79 year 2012 on implementation of law number 13 year 2008 regarding hajj implementation. the violation is a neglect of umrah pilgrims who failed to leave for saudi arabia and resulted in material and immaterial losses experienced by umrah congregation. the type of legal research used by the authors in this study is the type of legal case study research; this type of research is also called library research, is research conducted by tracing or reviewing and analyzing library materials or materials ready to use documents. improving the supervision of umrah. the supervision is done because it can increase the travel agency of umroh and haj pilgrimage, so that with this supervision the prospective pilgrims who register will not get the act of fraud. keywords: legal protection; consumer protection; fraud journal of law and legal reform (2021), 2(4), pp. 481-492 doi: https://doi.org/10.15294/jllr.v2i4.48764 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i4.48764 https://doi.org/10.15294/jllr.v2i4.48764 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 482 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction the amount of news about fraud by umroh travel agency makes people feel afraid and feel disadvantaged both morally and materially. people are encouraged to selectively choose a trusted umroh travel agency. the fraternity of indonesian umrah hajj entrepreneurs (perpuhi) reminds people not to be tempted by the umroh package with the cost that is too cheap because from year to year there is always a case of umroh fraud. the following is the databases of fraud cases that occurred in indonesia. this can be proven as follows: 1. in 2015 there are 1,610 number of umrah pilgrims who are victims of hajj and umrah fraud cases. 2. in 2016 record 290 number of pilgrims who become victims of fraud cases 3 3. in the year 2017 recorded 35,149 number of umrah pilgrims who became victims of the case of hajj and umrah scams. the crime of fraud including "materieel delict" means that its perfection must be a result. as set forth in the second book of chapter xxv article 378 of the criminal code, namely: anyone with the intent to benefit himself or others against the law, by using false or false dignity, by trickery or by a series of lies moving others to surrender something to him, or to lend to a debt or to waive a receivable, be threatened for fraud with a maximum imprisonment of 4 (four) years. this fraud policy is inseparable from the broader policy, which is a social policy consisting of policies or efforts to protect the community. crime prevention in essence is an integral protection of society. therefore, it can be said that the ultimate goal or the main goal of crime prevention is the protection of society to achieve the welfare of the community. law is the whole code of conduct prevailing in a collective life that can be imposed with a sanction. implementation of the law can take place formally and peacefully but can also occur due to violations of the law should be enforced. as a customer of consumer protection rights, consumer protection is any user of goods or services available in the community, whether for self-interest, family, other people, or other living beings and not to be traded 'while the economic dictionary gives the consumer as a person who enjoys the physical use of an economic object or economic service2. while the rights owned by consumers as listed in law no. 8 of 1999 about consumer protection is: a) the right to comfort, safety and safety in consuming goods and or services; b) the right to choose goods and or services and to obtain the goods and or services in accordance with the exchange rate and the conditions and promised warranties; c) the right to true, clear, and truthful information about the condition and guarantee of goods and or services; d) the right to be heard of his opinions and complaints on goods and / or services used; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 483 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia e) the right to appropriate advocacy, protection, and dispute resolution efforts; f) the right to education and consumer education g) the right to be treated or served properly and honestly and nondiscriminatively (salim, 2004). before the era of the 1995s, the sale of umrah services was done conventionally that consumers came to an umrah travel agency and filled out the registration form and deposited a sum of money as the umrah registration fee in accordance with the travel package desired by consumers along with other administrative requirements. but in recent years the trip of umrah pt. first travel anugrah karya wisata and followed by abu travel began to disturb the community and harming consumers who need the existence of examination and protection of umrah and hajj worship is the duty of the ministry of religious affairs in accordance with the regulation of the minister of religious affairs number 18 of 2015 article 20 paragraph (1) and paragraph (2) stating that: 1) conducting examination and protection by a director-general on behalf of the minister. 2) the examination as referred to in paragraph (1) shall include supervision of travel plans, operational activities of jemaah service, obedience and / or disciplinary to the provisions of legislation. in the year 2017, re-going umrah "naughty" travel agency which is currently in the spotlight of the travel bureau umrah pt. first anugerah karya wisata (first travel) and abu tours and travel. owners of first travel and abu tours and travel are alleged to have committed criminal fraud, embezzlement, and money laundering by the umrah mode. associated with the case of first travel and abu travel, over time, their career in the business travel umrah worship experienced a fairly rapid development. characterized by several awards they receive, one of which is the award of the record museum indonesia (muri) for the holding of manasik umrah akbar which was attended by 35 thousand pilgrims on 1 november 2014. the price offered by first travel seems indeed successful to attract much interest of pilgrims to entrust their umrah trip in this travel. first travel and abu travel allegedly committed fraud by offering a very cheap umrah promo package of rp14.3 million for regular packages and rp 54 million for vip packages. umrah promo package is successfully attracted many prospective pilgrims. the number of candidates registered at first travel reached 72,672 people. but most of the pilgrims failed to leave umrah, with a total loss of rp848.7 billion. from december 2016 to may 2017, first travel was only able to dispatch 14,000 worshipers, while 58,682 other pilgrims were losers. the prospective pilgrims who are losers are reporting to the crisis center criminal investigation police. total rapporteurs reached 4,043 people. there are other reports submitted via email of 2,280 reports (anggrianto, 2002). in the case of umrah fraud by first travel and abu travel, the pilgrims are promised to get umrah facility class vip with umrah fee of only rp14, 3 million. http://creativecommons.org/licenses/by-nc-sa/4.0/ 484 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the cost is far below the minimum standard cost of umrah set by the muslim association of hajj and umrah ri (amphuri) and ministry of religious affairs, which is 1,700 usd or equivalent to rp22.61 million per person. the difference in cost of rp8, 31 million is not obtained from the profits of the company but covered with money collected from the umrah pilgrims of the next period. first travel and abu travel deliberately dispatched the congregation in small numbers so that there is a grace period to be able to use the money to dispatch pilgrims who first register. the loss of candidate for umrah pilgrims reached rp 839.12 billion. that figure does not include the rp2.5 million surcharge that first travel requested in may under the pretext of a charter aircraft fee. first travel also offers ramadan package at an additional cost of rp 3 million to rp 8 million per pilgrim. the total loss of pilgrims on this pretext reached rp9.54 billion. not only harming pilgrims, police bareskrim has also received debt complaints amounting to rp9, 7 billion first travel and abu travel to visa providers, three hotels in mecca and three hotels in madinah with a total of rp24 billion, as well as to airline ticket provider of rp85 billion. some price packages provided by them, among others, umrah phenomenal dibanderol with the price of rp 13.5 million for the journey of 9 days and regular umrah priced of rp 25 million for 9 days journey. with a growing business, first travel and abu travel successfully lure famous names to use their services as umrah religious travel agencies. newest celebrities in the country, such as syahrini who use the services first travel to leave umrah. in addition, first travel is known for the departure of a considerable number of pilgrims each year. that first travel and abu travel will dispatch 50 thousand pilgrims in 2017. but just a few months running in 2017, first travel reportedly having problems in this march. the pilgrims who were supposed to leave in may of 2017 were postponed and have not been confirmed. some pilgrims have paid off from the previous two years. to this day, dozens of pilgrims come to the first travel office in depok and on tb road. simatupang jaksel to ask for certainty (widjaya, 2008). revocation of such permit because the sale of promo umrah first travel and abu travel is disturbing all the community. first travel always break the promise to dispatch pilgrims. previously the ministry of religious affairs (kemenag) revoked the permit for the implementation of umrah worship trip of pt first anugerah karya wisata (first travel). revocation of first travel and abu travel permit is stated in decree of minister of religious affairs number 589 year 2017 concerning elimination of administration sanction revocation of license for implementation of pt first anugerah karya wisata as the implementation of umrah worship travel the ministerial decree has been effective since august 1, 2017. the ministry of religious affairs (kemenag) affirmed the travel agent company first travel and abu travel obliged to refund the funds already paid. although his license has been revoked, that does not mean eliminating first http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 485 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia travel's obligations to his congregation. they are still obliged to return the entire cost of umrah pilgrims who have registered or delegate all umrah pilgrims who have signed up to other ppiu without adding any cost (miru & yudo, 2015). first travel and abu travel has violated article 65 letter a government regulation number 79 year 2012 on implementation of law number 13 year 2008 regarding hajj implementation. the violation is a neglect of umrah pilgrims who failed to leave for saudi arabia and resulted in material and immaterial losses experienced by umrah congregation. chaotic umrah administration by first travel began to rise when the failure of the departure of pilgrims on march 28, 2017, ago. the existence of the above problems has attracted the author's interest to examine through research with the title: "hajj pilgrims’ abandonment: the protection for consumer (case of pt anugrah karya wisata utama and pt abu tours & travel)" (rokhmad, 2016). method the type of legal research used by the authors in this study is the type of legal case study research; this type of research is also called library research, is research conducted by tracing or reviewing and analyzing library materials or materials ready to use documents. in legal research this form is known as legal research, and the type of data obtained is called secondary data. activities undertaken may take the form of tracking and analyzing regulations, collecting and analyzing verdict or jurisprudence, reading and analyzing contracts or searching, reading and making summaries of reference books. this type of activity is commonly done in normative legal research or doctrinal law research form research by studying literature studies, often also called library research or document studies such as laws, books, referred to as legal research. the nature of the research used in this study is descriptive research analyst, namely research that describes the criminal acts of fraud and or embezzlement. this is intended to provide a systematic and comprehensive overview that can help reinforce theories of fraud and / or embezzlement. the type of data viewed from the source, can be distinguished between data to be obtained directly from the community and data obtained from library materials. data obtained from legislation8 include: the criminal code furthermore called the criminal code, law no. 8 of 1981 on the law criminal procedure law, law number 13 year 2008 concerning the implementation of hajj. secondary law materials, namely legal materials that provide explanations about the primary legal materials such as those derived from the work of law scholars, journals, and literature books that can be used as a reference in this study. while tertiary legal materials are materials that provide guidance and explanation of primary and secondary legal materials, such as dictionaries, legal encyclopedias and other supporting facilities (muhammad, 2004). http://creativecommons.org/licenses/by-nc-sa/4.0/ 486 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia case overview andika surachman and anniesa hasibuan were founders of the first travel travel bureau. in the past before the start of business by establishing first travel, andika was an apprentice employee of a private bank with paid salary per day. then he continued his career as a minimart employee. when his father-in-law died and had to support his three younger sisters-in-law. this is what makes andika start a business such as establishing kios pulsa, selling burgers and bed linen. but losses and owed 50 million, so must submit the house of his father-inlaw is used as collateral and only the remaining money of 10 million. the money is used andika to open cv first karya utama which is engaged in the field of travel agency. andika and his wife started this business with their dreams who want to travel around indonesia even though they have no experience in the field at all. enterprises began to show results when receiving 100 clients from bank indonesia to umroh and win the tender from pertamina. cv first karya utama changed to pt first travel and finally began to get many clients, especially prospective pilgrims umroh. in 2012 it managed to increase 800-900 people, the next year increased to 3600 people, in 2014 dispatched 15700 people and by the year 2016 there are already 35,000 who will be dispatched to the holy land. because often cheated by his friend andika not lifting employees again from people they know and open canang to london. now first travel became one of the leading travel agencies with a turnover of 30 million us dollars (arifin, wahyuningsig, & kusriyah, 2017). here is a case chronology: 1. july 1, 2009 first travel started his business from a travel agency business, under cv first karya utama. offers domestic and international tour services for both individual and corporate clients. 2. early 2011 penetrated umroh religious travel business under the banner of pt first anugerah karya wisata and developed rapidly march 28, 2017 first travel received attention kemenag after first travel failed to dispatch umrah congregation. in that event pilgrims lodged in hotels around soekarno hatta airport. 3. april 18, 2017 ministry of religious affairs also clarify, investigate, advocate, until mediation with the congregation. at the same meeting, kemenag immediately asked the clarity of the case to the first travel officials. however, the management did not give any answers at all. 4. may 24, 2017 kemenag again called first travel on may 24, 2017. this effort also failed because the management was not present. 5. july 21, 2017 the financial services authority (ojk) investigate task force unit ordered pt first anugerah karya wisata to stop selling its promo package due to indications of illegal investments and unlawful public fundraising. first travel also never submits data that signed and not yet dispatched. this document has been requested for four months. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 487 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 6. august 3, 2017 revocation of permit is done because pt first anugerah karya wisata is considered proven to have committed a violation. the violation is a neglect of umrah pilgrims who failed to leave for saudi arabia and resulted in the loss of material and immaterial in ummah congregation (ratnawati, 2018). problems that occur 1. conduct abandonment of prospective pilgrims so that more victims who fail to depart. 2. provide promos that are not in line with government directives such as the 14 million umroh package. 3. using one pilgrim's money to dispatch another pilgrim, so that in august there are 58,000 prospective pilgrims who fail to depart. 4. umroh travel agents have permits, but their marketing activities are out of proportion and more likely to use mlm mechanisms (putra, 2015) after the first travel fraud case, now abu tours. tens of thousands of worshipers are victims. both failed to leave umroh, until the money lost cannot come back. the estimated losses are not just billions but trillions. although the victims are already tens of thousands and the losses reach trillions, i look at this case is not taken seriously. either by the public or the government itself. unheard of how the asset pursuit for money back and pilgrims’ anticipation efforts ahead (afrila, 2016). there are indeed one, two, and three or fewer people who are arrested and processed to court, but about the loss, the disappearance of money, how the money is returned and its anticipation in the future has never been a concern.fraud and money laundering under the guise of travel umroh. this if left untouched not only hundreds of thousands of pilgrims who could be victims, trillions of money that disappeared, also travel umroh others who run this pilgrimage services will be well affected. and the end is the public trust in the government (ruswanda & bambang eko turisno, 2016). remember, the trillions of money are mostly indonesian pilgrims collected little by little, even all the hard work throughout life is there (fried sellers are saving for umroh, motorcycle taxi drivers, farmers who harvest years of crops, etc.). the case of abu tours, which he said has collected more than rp 1 trillion in pilgrimage money, but since this case has been investigated, the account in the owner is empty! (detikcom, 23-3). similarly, the case of first travel which total collected funds from the pilgrims usd 800 billion more, but in the account, owner is only rp 2 million. for the legal mafia network in indonesia, the number of frauds first travel and abu tours lucrative, let alone they patgulipat case. successfully cheated by earning rp 1 trillion, count the "cost of the case" and "live in prison" (which is often convicted low) totaling rp 200 billion. there's still rp 800 billion! does not it make sense that first travel and abu tours style scams are a planned crime? http://creativecommons.org/licenses/by-nc-sa/4.0/ 488 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia they were never business intention umroh, but since the beginning did want to collect money by cheating wearing mask travel umroh. despite the case, to be caught and in prison, money from fraud is still abundant. what is worried, if this case is not addressed seriously and anticipation in the future, not only will emerge new players, but also travel-travel that has been working professionally could be "tempted". shortcuts are rich quick, though they have to go to a lengthy prison. because hard work and honest all life is considered will never be able to profit hundreds of billions. procedural law enforcement is not enough to address cases of fraud such as first travel and abou tours is because this case is soughtafter law mafia. d. legal settlement efforts first travel and abu tour & travel as a limited liability company, first travel and abu travel is a legal entity, therefore because first travel as a legal entity they have a right and obligation of legal liability for alleged criminal acts committed to prospective pilgrims’ worship umrah, so that there should be responsibility relating to the concept of legal obligations and responsibilities (ning tyas sari, 2015). legally if a person performs a liability responsibility for an act of a criminal nature or that he or she is liable for legal action will be liable for sanctions in the event of an occurrence of a thing contrary to law. in terms of legal aspects, legal responsibility in the first journey can be seen from the civil, criminal, and administrative aspects. from the civil aspect, first trave and abu travel l have made a misconduct of not commissioning umrah pilgrims, as well as having committed illegal acts (onrechmatige daad in dutch and tort in english). therefore, first travel can be sued in a civil manner to meet the engagement of dispatching candidates for umrah pilgrims to the holy land. fulfillment of this obligation should not be done alone by first travel because the first travel operational permit as the organizer of umrah worship has been revoked by the ministry of religious affairs. fulfillment of first travel obligations can be held by other umrah travel bureaus, but at the cost of first travel. alternatively, first travel may be charged with the cancellation of the engagement to return the money already paid by the prospective umrah pilgrim to leave for the holy land. related to the civil liability, the panel of judges of the suspension of debt payment obligation (pkpu) (amalia, 2018). the central jakarta district court ruled first travel and abu travel had debts to the plaintiff and granted the pkpu lawsuit from 3 first travel customers. the three customers are hendarsih, ananda perdana saleh, and euis hilda ria. based on article 225 paragraph (3) and paragraph (4) of law no. 37 of 2004 concerning bankruptcy and postponement of obligation of debt payment, the assembly considers the application of pkpu to be granted. with the granting of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 489 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia pkpu, first travel is declared "alive" and can be held accountable to civilian to dispatch candidate for umrah or return umrah's fee (maggalatung, 2017). from the criminal aspect, criminal liability can be requested to first travel as judged to have made a mistake. mistakes are very important to convict someone because in the criminal law is known the principle of "no crime without error (geen straf zonder schuld)". related to this, there are some mistakes or criminal acts allegedly committed by first travel, namely the criminal act of embezzlement (article 372 of the criminal code). the criminal act of fraud (article 378 of the criminal code). actions money laundering (law no. 8 of2010 on prevention and eradication of money laundering crime). ppatk suspects that the funds belonging to the prospective umrah first umrah pilgrims and abu travel in addition to being used to dispatch candidates for umrah pilgrims, also used the suspects to buy assets for personal gain (prabowo, 2016). from the administrative aspect, administrative liability has been imposed on first travel for violating policy or administrative law provisions. first travel has been subject to administrative sanctions in the form of revocation of operational permit by kemenag ri. with the revocation of the permit, first travel and abu travel cannot hold umrah worship again. minister of religious affairs lukman hakim saifuddin affirmed that the travel agent company first first of tourism is still obliged to dispatch the umrah pilgrims that had been scheduled before. first travel can use other umrah travel agencies to dispatch their umrah congregation. however, the minister of religious affairs mr. lukman did not inform him about the procedure and time of transfer of first travel congregation to other umrah travel agencies. so, his permission is revoked and the revocation of this permit does not eliminate their obligation for two things. the first is a dispatch that has not departed through another travel agency. both refund refund funds that have been deposited by the umrah pilgrims and to those who are entitled if they decide not to leave umroh. the revocation of the permit was since the sale of umrah first travel promo was troubling all the people. first travel always break the promise to dispatch pilgrims. previously the ministry of religious affairs (kemenag) revoked the permit for the pilgrimage of pt first anugerah karya wisata (first travel) and abu travel. revocation of first travel and abu travel permit is stated in ministerial decree of the minister of religious affairs number 589 year 2017 concerning sanction of administration sanction revocation of license to operate pt first anugerah karya wisata as the implementation of umrah worship tour the ministerial decree has been effective since august 1, 2017. the ministry of religious affairs (mof) travel agent pt first anugerah karya wisata (first travel) and abu travel is obliged to refund the funds already paid. although his license has been revoked, that does not mean eliminating first travel's obligations to his congregation. they are still obliged to return the entire cost of umrah pilgrims who have registered or delegated all umrah pilgrims who have registered to other ppiu without adding any cost. first travel has violated article http://creativecommons.org/licenses/by-nc-sa/4.0/ 490 journal of law & legal reform volume 2(4) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 65 letter a government regulation number 79 year 2012 on implementation of law number 13 year 2008 regarding hajj implementation. the violation is a neglect of umrah pilgrims who failed to leave for saudi arabia and resulted in material and immaterial losses experienced by umrah congregation. chaotic umrah administration by first travel began to rise when the failure of the departure of pilgrims on march 28, 2017, ago. in the event pilgrims lodged in the hotel around soekarno hatta airport. since then, kemenag has been clarifying, investigating, advocating, and mediating with the congregation. the first clarification effort was made on april 18, 2017, but the management did not provide an answer. in addition, at least four attempts have been made between the congregation and first travel. however, these efforts are not fruitful results because the first travel party to be closed and less cooperative. the house of representatives has a very important role in solving the case of first travel and abu travel such as receiving complaints from the victims of prospective umrah pilgrims. in order to carry out the oversight function, dpr ri (commission xi dpr ri) has also highlighted the role of the major financial services authority (ojk) in the first travel case. ojk is considered a bit slow in supervising and late in detecting first travel practices. in addition, the house of representatives has also encouraged the government and law enforcement agencies to immediately process and resolve the case of first travel and abu travel. vice chairman of commission viii dpr ri sodik mudjahid, asked the police to confiscate all assets of first travel and sell it so that it can be used to return the money for the umrah pilgrims or to send umrah to the holy land (septrina, 2017). conclusion the form of supervision by the government on the implementation of umrah based on the prevailing laws and regulations in indonesia in the supervision and control of the implementation of umrah is one of the duties of the ministry of religious affairs in accordance with regulation of the minister of religious affairs number 18 of 2015 article 20 paragraph (1) and paragraph (2) it is mentioned that supervision 32 is conducted by the director general on behalf of the minister. supervision includes supervision of travel plans, operational activities of jemaah service, obedience and / or discipline to the provisions of legislation. in order to improve the supervision function of the service to jemaah umrah, the ministry of religious affairs through the directorate general of hajj and umrah implementation regularly conduct monitoring at soekarno hatta airport. every day assigned personnel from the ministry of religious affairs with airport police to directly supervise jemaah service activities at the airport. mou kemenag with polri has been running since 2013 and always give full support. improving the supervision of umrah. supervision is done because of the many travel agencies that provide services umrah in indonesia, currently the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(4) 2021 491 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia government is more focused on the implementation of the pilgrimage so that hand over the umrah through travel agency. meanwhile, the ministry of religion is only authorized to grant business licenses. as for the factors that led to weak supervision by the ministry of religion against the implementation of umroh worship in relation to the case of pt. the first grace of the tour is the umroh travel permit, and rules that have not been able to satisfy consumer protection. as for the efforts made by the ministry of religion to increase supervision over the efforts of umroh religious travel agency in order to protect the pilgrims. with its form as a limited liability company, first travel is a legal entity, therefore a legal subject having rights and obligations. as a legal subject, first travel has a legal liability for alleged criminal acts committed against prospective pilgrims and umrah, responsibilities relating to the concept of legal obligations. a person is legally responsible for a particular act or that he or she assumes legal liability means that he is responsible for a sanction in the event of a conflicting action. from legal aspect, first travel's legal responsibility can be seen from civil, criminal, and administrative aspects. references afrila, n. 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(2016). perlindungan hukum jama’ah haji indonesia dalam perspektif perlindungan konsumen. jurnal litigasi (e-journal), 15(1), 2093-2133. http://dx.doi.org/10.23969/litigasi.v15i1.72 putra, a. p. (2018). pengawasan terhadap penyelenggaraan perjalanan ibadah umrah (studi terhadap kasus pt. first anugrah karya wisata). jurnal nestor magister hukum, 2(2). ratnawati, n. (2018). upaya penanggulangan terjadinya penipuan yang dilakukan biro perjalanan umroh (studi kasus kota bandar lampung). undergraduate thesis. lampung: universitas lampung. rokhmad, a. (2016). manajemen haji membangun tata kelola haji indonesia. jakarta: media dakwah. ruswandana, n. v., & bambang eko turisno, s. (2016). perlindungan hukum terhadap konsumen dalam pembatalan keberangkatan ibadah haji khusus oleh biro penyelenggara ibadah haji khusus. diponegoro law journal, 5(3), 1-12. salim, h. s. (2004). perkembangan hukum jaminan di indonesia. jakarta: pt raja grafindo persada. septrina, b. (2017). penegakan hukum terhadap pelaku tindak pidana penipuan calon jamaah umrah pada tahap penyidikan (studi kasus di polresta bandar lampung). undergraduate thesis, lampung: universitas lampung. widjaya, i. g. r. (2008). merancang suatu kontrak contract drafting teori dan praktik. jakarta: kesaint blanc. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://dx.doi.org/10.23969/litigasi.v15i1.72 journal of law & legal reform volume 2(3) 2021 459 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article freedom of association for labors in the industrial relationship sylvanus abila1 1 faculty of law niger delta university, wilberforce island, bayelsa state, nigeria  drabilasylvanus@gmail.com cited as abila, s. (2021). life below water of the un sustainable development framework: an existing legal framework and potential threats of blue ocean in nigeria. journal of law and legal reform, 2(3), 459-480. https://doi.org/10.15294/jllr.v2i1.40377 submitted: december 7, 2020 revised: january 21, 2021 accepted: april 12, 2021 abstract the paper is an analysis of goal 14 (life below water/targets) of the united nations’ sustainable development goals 2019 to the development of marine/blue economy towards the attainment of the said goal, existing legal framework and potential threats in nigeria and the global environment. the threats examined in this paper include: the threat of ocean acidification, the threat of ocean dead zones, the threat of overfishing and the threat of ocean waste in the oceans. the paper adopts an admixture of the doctrinal, historical, comparative, the law and development and empirical approaches. the paper ends with a conclusion and a set of recommendations. keywords: analyses, goal 14, life below water, targets, united nations, sustainable development, goals 2019, development, marine/blue economy, attainment, existing, legal framework, potential, threats, nigeria, global environment. journal of law and legal reform (2021), 2(3), pp. 459-480 doi: https://doi.org/10.15294/jllr.v2i1.40377 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i1.40377 https://doi.org/10.15294/jllr.v2i1.40377 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 460 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction goal 14 of the millennium development goals 2019 of the united nations, essentially deals with the conservation and sustainability in the use of the oceans, seas and resources in the marine sector of the global economy. it is submitted that this goal is founded on the fact that, oceans, lakes, rivers, wetlands, excavated wells, rain water, ponds and coastal waters which provide the key natural resources including medicines, food, biofuels and other products.1 these provides are also known to contribute to the breakdown and process of removal of pollution and wastes generally and also contributes in the process of acting as buffers around the coastal ecosystems in reducing damages from arising from storms. apart from ensuring the maintenance healthy coastal waters, rivers or oceans, life below water supports climate change mitigation and adaptation to a large extent. coastal waters, oceans, and rivers are also known to provide tourist and recreation center for humanity globally. it has also been rightly observed that the oceans, cover more than 70 per cent to 99 per cent of the surface of the planet and play key roles in supporting life on earth.2 as noted earlier, the life below water is, also the “most diverse and important ecosystem, contributing to global and regional elemental cycling, and regulating the climate. the oceans provide natural resources including food, materials, substances, and energy. [marine protected areas are also known to] ...…contribute to poverty reduction by increasing fish catches and income, and improving health. they also help improve gender equality, as women do much of the work at small-scale fisheries.”3 furthermore, the marine environment is also home to a “stunning variety of beautiful creatures, ranging from single-celled organisms to the biggest animal ever to have live on the earth–the blue whale. they are also home to coral reefs, one of the most diverse ecosystems on the planet”.4 1 https://www.un.org/sustainabledevelopment/wp-content/uploads/2018/09/14.pdf visited on the 22/04/2020. to find out more about goal #14 and other sustainable development goals visit: http://www.un.org/sustainabledevelopment, see also: aina eoa (1989) new direction for sustainable development in nigeria. a paper delivered at the international workshop on the environment and sustainable development in nigeria at the niconnoga hilton hotel, abuja, africa. 2 unep–un environment programme: https: www.unenvironment.org/exploretopics/sustainable-development-goals/why-do-sustainable-development-goals-matters. to learn more about un environment's contributions to sdg 14. 3 http://www.unevironment.org/explore-topics/sustainable-development-goals/why-dosustainable-development-goals-matter/goal-14. visited last on the 22/04/2020. to learn more about un environment’s contributions to sdg 14: (1). sdg policy brief on ocean: marine pollution, (2). sdg policy brief on global biodiversity. 4 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.un.org/sustainabledevelopment/wp-content/uploads/2018/09/14.pdf http://www.un.org/sustainabledevelopment http://www.unenvironment.org/explore-topics/sustainable-development-goals/why-do-sustainable-development-goals-matters http://www.unenvironment.org/explore-topics/sustainable-development-goals/why-do-sustainable-development-goals-matters journal of law & legal reform volume 2(3) 2021 461 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia it is important to note also that the “loss of marine and coastal habitats (e.g. corals, mangroves, sea-grasses and saltmarshes) exposes infrastructure and highvalue agricultural land to storms, erosion and flooding. around half of the world’s corals have already been lost in the last 30 years and up to half the world's mangroves in the last 50 years”.5 the targets of goal 14 of the 2019 united nations’ sustainable development goals and global environment6 the target of this goal essentially is connected to the environment with the additional following targets: 1. “target 14.1: by 2025, prevent and significantly reduce marine pollution of all kinds, in particular from land-based activities, including marine debris and nutrient pollution.7 2. target 14.2: by 2020, sustainably manage and protect marine and coastal ecosystems to avoid significant adverse impacts, including by strengthening their resilience, and take action for their restoration in order to achieve healthy and productive oceans.8 3. target 14.3: minimize and address the impacts of ocean acidification, including through enhanced scientific cooperation at all levels.9 4. target 14.4: by 2020, effectively regulate harvesting and end overfishing, illegal, unreported and unregulated fishing and destructive fishing practices and implement science-based management plans, in order to restore fish stocks in the shortest time feasible, at least to levels that can produce maximum sustainable yield as determined by their biological characteristics.10 5 van hooidonk, r., maynard, j. a., manzello, d. and planes, s. 2013. opposite latitudinal gradients in projected ocean acidification and bleaching impacts on coral reefs. global change biology 20: 103-112, 14 donato, d. c. et al. 2011. mangroves among the most carbon-rich forests in the tropics. nature geoscience 4: 293. see also: agabi ja (1995) introduction to the nigeria environment. in nigerian environment, national conservation foundation. macmillan nigeria publishers limited, lagos, africa. 6 http://www.unevironment.org/explore-topics/sustainable-development-goals/why-dosustainable-development-goals-matter/goal-14. visited last on the 22/04/2020. to learn more about un environment’s contributions to sdg 14: (1). sdg policy brief on ocean: marine pollution, (2). sdg policy brief on global biodiversity. 7 ibid. 8 ibid. 9 ibid. 10 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ 462 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 5. target 14.5: by 2020, conserve at least 10 per cent of coastal and marine areas, consistent with national and international law and based on the best available scientific information.11 6. target 14.6: by 2020, prohibit certain forms of fisheries subsidies which contribute to overcapacity and overfishing, eliminate subsidies that contribute to illegal, unreported and unregulated fishing and refrain from introducing new such subsidies, recognizing that appropriate and effective special and differential treatment for developing and least developed countries should be an integral part of the world trade organization fisheries subsidies negotiation.12 7. target 14.7: by 2030, increase the economic benefits to small island developing states and least developed countries from the sustainable use of marine resources, including through sustainable management of fisheries, aquaculture and tourism.13 8. target 14.a: increase scientific knowledge, develop research capacity and transfer marine technology, taking into account the intergovernmental oceanographic commission criteria and guidelines on the transfer of marine technology, in order to improve ocean health and to enhance the contribution of marine biodiversity to the development of developing countries, in particular small island developing states and least developed countries.14 9. target 14.b: provide access for small-scale artisanal fishers to marine resources and markets.15 10. target 14.c: enhance the conservation and sustainable use of oceans and their resources by implementing international law as reflected in unclos, which provides the legal framework for the conservation and sustainable use of oceans and their resources, as recalled in paragraph 158 of the future we want”. an overview of the importance and economy potentials of life below water, the marine/blue economy to sustainable development in the global environment in examining the above overview, it is important to note that flowing from the above available data, statistics, facts and figures of life below water16 it has now 11 ibid. 12 ibid. 13 ibid. 14 ibid. 15 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 463 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia been firmly established that “increasing levels of debris in the world’s seas and oceans is having a major and growing economic impact. the data, statistics, facts and figures show that: oceans cover three quarters of the earth’s surface and contain 97 per cent of the earth’s water, representing 99 per cent of the living space on the planet by volume.17 furthermore, over three billion people are known to depend on marine and coastal biodiversity for their livelihoods.18 globally, the market value of marine and coastal resources and industries is estimated at $3 trillion per year or about 5 per cent of global gdp while oceans absorb about 30 per cent of carbon dioxide produced by humans, buffering the impacts of global warming.19 furthermore, “oceans serve as the world’s largest source of protein, with more than 3 billion people depending on the oceans as their primary source of protein while marine fisheries directly or indirectly employ over 200 million people.”20 the importance of water to the “survival of mankind, flora and fauna cannot be over emphasized. thus, next to air, the most essential element to human life is water. the body cannot survive longer than some days without water. it is not only essential to every single cell and organ in the body, water significantly make up the constituents of all living things, and up to two-thirds of the weight of the human body”.21 though, water is a simple common fluid: it is considered as the “livewire of many human activities. it has many uses and unique attributes. the potential threats of pollution, extinction, scarcity and conflicts make it regulation by the law inevitable. for example, it can be used simultaneously by many users for agriculture, boating, navigation, hydroelectric power generation, fishing, etc. the right to water is therefore, a legal entitlement of a person, group of persons or a nation, to use water or even divert it to curtail wasteful use”. 22 even though, the right to it is proprietary in nature, “yet holders do not own the water. the best they have is possessory right for use”.23 it is instructive to note that “water law, just like other natural resource laws, evolved from a number of principles. its 16 https://www.un.org/sustainabledevelopment/oceans/ visited last on the 21/04/2020. see also http://www.undp.org/content/undp/en/home/sustainable-development-goals/goal14-life-below-water.htm visited last on the 21/04/2020. 17 ibid. 18 ibid. 19 ibid. 20 ibid. 21 water sector governance in africa, vol. 2 assessment guidelines, 2010, water partnership program (wpp) of the african development bank. printing finzi usines graphiques. september, 2010. 22 california environmental protection agency “water rights process”, see also water and sanitation governance in nigeria: challenges and prospects by prof. amari omaka, president, greenbelt africa initiative, http://greenbeltafricainitiative 1-org.blogspot.com/flat 6, 2nd floor, 14 ojeawere street abakaliki. in a workshop organized by rural africa health water sanitation initiative (rahwsi) on the 5th water, heath and sanitation summit, at pastoral centre abakaliki, ebonyi state from 17 – 20th day of september, 2012. 23 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.undp.org/content/undp/en/home/sustainable-development-goals/goal-14-life-below-water.htm http://www.undp.org/content/undp/en/home/sustainable-development-goals/goal-14-life-below-water.htm 464 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia evolution was relatively uncoordinated and ad hoc. recently, a more coordinated effort at making policies was widespread to protect this finite resource, anchored on specific set of rules aimed at fostering the holistic development of water resources in most jurisdictions globally and to effectively grapple with the challenges of the water subsector in the new millennium”.24 an overview of the importance of marine/blue economy in relationship with life below water the marine economy which is interchangeably used by most scholars as the “blue economy” is known to refer to the entirety of the marine-based economic development leading to the improvement of human wellbeing and social equity, while significantly reducing environmental risks and ecological scarcities. it is significant to note that between the 19th to 20th january, 2014, participants of the blue economy summit adopted the abu dhabi declaration25, which described the blue economy as: “conserve and sustainably use the oceans, seas and marine resources for sustainable development”. furthermore, the commonwealth blue economy paper (2016)26 pointed out that “the blue economy can maximize the economic value of the marine environment in a sustainable manner that preserves and protects the sea’s resources and ecosystems”.27 deodat maharaj, deputy secretary-general, economic and social development who wrote the forward to the commonwealth blue economy paper aforesaid, gave far reaching insight to the meaning, important and the development of the marine or blue economy concepts and their relationship with goal 14 of the 2019 un sustainable development goals. because of the importance of deodat maharaj views captured in the forward to the said paper, it is offered to quote in extenso as follows: “2.2 billion citizens, many of whose livelihoods and food security depend upon the world’s oceans, seas and coastal areas – the largest ecosystem on the planet. in the years following the 2012 rio summit, 24 ibid. 25 blue economy summit scheduled to be held from the 19th to the 20th of january 2014 in abu dhabi, united arab emirates on the sidelines of the abu dhabi sustainability week: https://sustainabledevelopment.un.org/content/documents/2993beprogramme.pdf, blue economy concept paper: https://sustainabledevelopment.un.org/content/documents/2978beconcept.pdf, see also draft abu dhabi declaration blue economy: https://sustainabledevelopment.un.org/content/documents/2983bedeclaration.pdf, logistical note: blue economy summit: https://sustainabledevelopment.un.org/content/documents/2988belogistics.pdf, 26 the blue economy and small states commonwealth blue economy series, no. 1, https://www.thecommonwealth-ilibrary.org/commonwealth/industry-andservices/commonwealth-blue-economy-series_25191349 27 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://sustainabledevelopment.un.org/content/documents/2993beprogramme.pdf https://sustainabledevelopment.un.org/content/documents/2978beconcept.pdf https://sustainabledevelopment.un.org/content/documents/2983bedeclaration.pdf https://sustainabledevelopment.un.org/content/documents/2988belogistics.pdf https://www.thecommonwealth-ilibrary.org/commonwealth/industry-and-services/commonwealth-blue-economy-series_25191349 https://www.thecommonwealth-ilibrary.org/commonwealth/industry-and-services/commonwealth-blue-economy-series_25191349 journal of law & legal reform volume 2(3) 2021 465 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia we have witnessed a marked increase in international awareness of the oceans’ potential as a key driver of sustainable economic growth. this contribution was subsequently ratified by the international community’s adoption of the sustainable development goals in september 2015. goal 14 specifically recognizes the critical contribution the ocean can make to the development of the smallest and most vulnerable nations. furthermore, the emergence of the ‘blue economy’ concept demonstrates a set of practical strategies to ensure that economic activities do not compromise the long-term capacity of ocean ecosystems to support those activities, and remain resilient and healthy. managing the oceans effectively is a uniquely cross-national, cross-sectoral challenge. with its cross-cutting nature, the blue economy concept offers a unique opportunity to address complex and inter-connected challenges, without compromising economic growth”.28 adumbrating further on the blue economy concept and the need for its implementation to meeting the broad range of sustainable development outcomes, given its great potentials the forward to the commonwealth blue economy paper referred above, further stated as follows: “this is a concept that, if implemented effectively, can contribute to a significantly broad range of sustainable development outcomes. it has the potential to help countries to make the transition from their current trajectories of over consumption to more resource-efficient societies that rely more strongly on renewable marine resources to satisfy consumers’ needs and industry demand, and to tackle climate change. the commonwealth has a long history of engagement on issues relating to ocean management and sustainability and, for a number of years, has advocated and promoted the blue economy concept as a holistic means of addressing sustainable development at multiple levels. indeed, long before the rio summit in 2012, commonwealth heads of government had stressed the need for practical outcomes on the blue economy to ensure the sustainable management of oceans as the basis for livelihoods, food security and 28 the blue economy growth, opportunity and a sustainable ocean economy: an economist intelligence unit briefing paper for the world ocean summit 2015, see page 7 of the report at https://www.oceanprosperityroadmap.org/wp-content/uploads/2015/05/2.-state-of-theblue-economy_briefing-paper_wos2015.pdf visited on the 21/04/2020. see also: mabogunje al (1999) nigerian environment in the new millennium. africa. solomon o, philip o bankole, adeyinka ma (1995) environmental statistics: the situation in federal republic of nigeria, africa., nerry e, akpofure e (1998) environmental impact assessment in nigeria: regulatory background and procedural framework, unep eia training resource manual case studies from developing countries, nigeria, africa. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.oceanprosperityroadmap.org/wp-content/uploads/2015/05/2.-state-of-the-blue-economy_briefing-paper_wos2015.pdf https://www.oceanprosperityroadmap.org/wp-content/uploads/2015/05/2.-state-of-the-blue-economy_briefing-paper_wos2015.pdf 466 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia economic development. furthermore, most recently, at their meeting in malta in november 2015, commonwealth heads of government fully acknowledged that the development of a sustainably managed blue economy would offer significant opportunities for economic growth and general development for many commonwealth states. in order to fully realize the many opportunities presented by pursuing a blue economy approach, fundamental changes are required to address the matter of ocean governance at the national, regional and global levels. if we are going to create ocean solutions that are sustainable over the long term, we need to recognize the interdependencies of the three dimensions of sustainable development, which must be mutually reinforcing. fundamentally, existing sectors must be managed in a much more sustainable manner. small and developing states must also embrace the development of new sectors, many of which have a strong technology base, to achieve more diversified and resilient economies. such change can only be realized through strong leadership. nowhere is this truer than for the ocean, a resource perceived to be everyone’s right but no one’s responsibility. creating the political will to implement all elements of a blue economy strategy is a key theme in the assistance and advice the commonwealth provides to countries. it is our belief that much of the focus and emphasis must be placed on governance in order to successfully transition to a vibrant blue economy. the commonwealth has a niche and is a global leader in supporting countries to effect the necessary changes. this commonwealth blue economy series presents a synthesis of information and practical advice to commonwealth governments relating to the potential deployment of a range of policy options for different sectors and opportunities for the road ahead. in so doing, this series aims to support the development of the blue economy in commonwealth countries by providing a high-level assessment of the opportunities available for economic diversification and sustainable growth”.29 flowing from the above the marine or blue economy can be viewed broadly to include economic activities which directly or indirectly use the sea as an input. it is worthy of note also that the india’s economic intelligence unit has also adopted a working definition of the blue economy to mean: “a sustainable ocean economy which emerges when economic activity is in balance with the long-term capacity of ocean ecosystems to support this activity and remain resilient and healthy”.30 29 ibid. 30 see footnote 28. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 467 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia closely related to the above to the world wildlife fund (wwf)31, living blue planet report 2015 has also established that “nearly 3 billion people rely on fish as a major source of protein and 10-12 percent of the world’s population depends on it for livelihood. the ocean generates economic benefits worth at least usd 2.5 trillion per year. however, unchecked exploitation of the ocean habitat and species by human intervention has brought the oceans to the brink of collapse. marine vertebrate population has declined 49 percent between 1970 and 2012”.32 it has also been established that “a number of fish species utilized by humans too has fallen by half. around one in four species of sharks, rays and skates is now threatened with extinction due to overfishing. tropical reefs have lost more than half their reef-building corals over the last 30 years and nearly 20 percent of mangrove cover was lost between 1980 and 2005. more than 5 trillion plastic pieces weighing over 250, 000 tons are in the sea and oxygen-depleted dead zones are growing as a result of nutrient run-off”.33 an overview of life below water in the rivers, coasts and seas in nigeria according to prof. amari omaka in his book titled “fundamentals of maritime admiralty and international water law” “freshwater ecosystems and wetlands are some of the most productive ecosystems which are essential in the provision of environmental goods and services. gladly, nigeria is well-endowed with freshwater and wetland ecosystems (lakes, rivers and wetlands) covering about 13 million hectares of the geographical territory. the country is largely drained by four major basin system including (i) the niger river basin drainage system with its major tributaries of benue, sokoto-rima, kaduna, gongola, katsina – ala, donga, taraba, hawal and anambra; (ii) the lake chad inland drainage system comprising kano, hadejia, jama’ are, misau, komadougouyobe, yedseram and ebeji rivers; (iii) the atlantic drainage system to the west of the niger consisting of the ogun, oshun, benin, and owena rivers; (iv) the atlantic drainage system to the east of the niger made up of the anambra, imo, cross, qua iboe and kwa rivers. in addition, three major types of 31 li vi ng blu e pla net report : s pec i es , h abi tats and h u m an well bei ng : https://wwf.panda.org/wwf_news/?252590/living-blue-planet-report or https://assets.wwf.org.uk/downloads/living_blue_planet_report_2015.pdf, als o s ee http://ocean.panda.org/ 32 ibid. 33 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://wwf.panda.org/wwf_news/?252590/living-blue-planet-report https://assets.wwf.org.uk/downloads/living_blue_planet_report_2015.pdf http://ocean.panda.org/ 468 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia groundwater aquifers are observed in the country, namely: basement aquifers, deep coastal sedimentary aquifers and superficial aquifers. the total quantity of nigeria’s annual groundwater recharge is estimated at about 9.5 trillion litres. numerous lakes and wetlands also exist in the country including lake chad that is shared with chad, cameroun and niger republics as well as wetlands of international importance which are seasonal habitats for palearctic migrants”.34 it is a moot point in nigeria that its marine and coastal environment is about 853 km along the coastline and inland measuring a distance of around 15km in lagos towards the west and around about 150km in the niger delta and 25km of the east of the region of the niger delta. the environmental architecture is made of the “barrier bar/lagoon system, the mahin mud coast, the niger delta, strand coast and a moderately wide continental shelf”.35 it is proposed now to examine the potential threats to the actualization of goal 14 of the 2019 un sustainable development goals. existing potential threats and legal framework to the actualization of goal 14 of united nations 2019 sustainable developments goal 1. threats to the ocean acidification ocean acidification means that the chemical composition of the water in the ocean is changing over time (otherwise known as the ph). recent studies have shown that the ph of the global waters in the coasts and oceans are decreasing and that the water is becoming more acidic.36 that is why it has been appropriately stated that: “ocean acidification is caused mainly by the uptake of carbon dioxide (co₂) from the atmosphere, the ocean absorbs about 30% of the co₂ in the atmosphere, this happens wherever air meets the water. co₂ emissions above water are increasing from human activity, such as 34 see amari omaka, (san), professor of law and senior advocate of nigeria: fundamentals of maritime, admiralty and international water law, first published: 2018, published & printed by: princeton & associates publishing co. ltd., 9, ezekiel street, off toyin street, ikeja, lagos. 35 ibid. 36 http://oceans.digitalexplorer.com/resources/?controller=search, video from the alliance for climate education (3:01) https://www.youtube.com/watch?v=wo-bht1bosw, national geographic: http://ocean.nationalgeographic.com/ocean/critical-issues-ocean-acidification/ smithsonian museum: http://ocean.si.edu/ocean-acidification http://creativecommons.org/licenses/by-nc-sa/4.0/ http://oceans.digitalexplorer.com/resources/?controller=search https://www.youtube.com/watch?v=wo-bht1bosw http://ocean.nationalgeographic.com/ocean/critical-issues-ocean-acidification/ http://ocean.si.edu/ocean-acidification journal of law & legal reform volume 2(3) 2021 469 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia burning fossil fuels, resulting in an increased amount of c0₂ getting into the ocean. once in the ocean the co₂ changes the chemical makeup of the water (h₂0). this results in the water becoming more acidic, this is carbonic acid. the increased acidity of the seas and ocean can cause major problems for marine organisms and ecosystems. many sea creatures are affected by acidification, for example it can prevent the building of shells or the formation of corals. it can even alter the feeding patterns of some fish. it can have a dramatic effect on the whole marine eco-system”.37 the potential threats and the dangers of acidification, though oftentimes undermined, has nevertheless, been reinforced succinctly as follows: “one of the most serious human-caused threats to endanger our ocean; a threat that, like climate change, is a result of ongoing burning of fossil fuels and emissions from land-use changes. as the carbon dioxide (co2) level in the atmosphere rises, an increasing amount of the gas is absorbed by the ocean, causing a profound change in its chemistry by making it more acidic”.38 unfortunately, however, the global community appears yet totally unprepared to deal with the scourge of ocean acidification as: “existing treaties appear ill-equipped to address the ever growing problem of ocean acidification”.39 “to date, ocean acidification has not been explicitly included in the mandate of any international treaty, including the united nations convention on the law of the sea (unclos), the united nations framework convention on climate change (unfccc) or the convention on biological diversity (cbd)”.40 it is gratifying to note, however that, “both the academic challenge as well as the practical urgency to find solutions to ocean acidification within the broader field of environmental law and governance has spurred some initial analysis on this topic”.41 several international agreements and institutions have, also begun to address it in various ways and has being primarily included in general calls for concern, and considered through the scientific arms of various conventions and frameworks42. furthermore, the recent report of the international union for conservation of nature (iucn) has brought some hope as it has examined international policy and governance options and presently contributes “to the 37 ibid. 38 see https://www.iucn.org/content/iucn-releases-new-guidance-document-oceanacidification-policy-and-governance-options, visited on 26 day of august, 2020. 39 ibid. 40 ibid. 41 ibid. 42 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.iucn.org/content/iucn-releases-new-guidance-document-ocean-acidification-policy-and-governance-options https://www.iucn.org/content/iucn-releases-new-guidance-document-ocean-acidification-policy-and-governance-options 470 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia growing literature and discussion concerned with the performance and transformational need of ocean governance and policies and the need to fully incorporate ocean acidification into other pertinent environmental, social and economic deliberations towards a sustainable, low-carbon society”.43 the said report has succeeded in “outlining major policy gaps and avenues that can help to remedy the existing deficiencies on the current policy governance of ocean acidification at the global level”.44 it is submitted that the current tempo and momentum be maintained to save the oceans of the world from further acidification. it is further submitted that: “sustained reflections on how to strengthen and better inter-link between existing international instruments”45 and possible ways forward should, now be vigorously pursued by the global community. 2. threats to ocean dead zones a dead zone been defined as: “an area of the sea that has very little marine life. they can occur naturally, but the real issue is when they occur as a result of human activity”46. research findings have established that “dead zones are areas with low-oxygen, sometimes called hypoxic, it is difficult for plants or animals to survive in these conditions”47. several factors have been fingered as the causes of a dead zone in oceans though “nutrient pollution has been identified as one of the main human activities causing the problem.”48 other causes includes the increased use of excess fertilizer by farmers in the process of crop production and whenever there is a run off of the lands, where crop cultivation is taking place in the land into to the sea. “the ocean can end up with excess nutrients leading to a process called eutrophication. this can encourage the growth of algae that can block sunlight from reaching the water. when the algae in the ocean dies it decomposes”.49 the further consequences is that the water oxygen is used up making a difficulty of animals and plants in the sea in such areas to survive. in these dead zones it is usually hard for any marine life to survive. “this can have a wide effect as it can disrupt food chains leaving some marine mammals without food”.50 “they can also result in the introduction of harmful chemicals into the 43 ibid. 44 ibid. 45 ibid. 46 http://www.bbc.co.uk/schools/gcsebitesize/science/edexcel, national ocean service: http://oceanservice.noaa.gov/facts/deadzone.html, national geographic: http://education.nationalgeographic.com/encyclopedia/dead-zone/, teach ocean science: http://www.teachoceanscience.net/teaching_resources/education_modules/dead_zones/lea rn_about/ 47 ibid. 48 ibid. 49 ibid. 50 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.bbc.co.uk/schools/gcsebitesize/science/edexcel http://oceanservice.noaa.gov/facts/deadzone.html http://education.nationalgeographic.com/encyclopedia/dead-zone/ journal of law & legal reform volume 2(3) 2021 471 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia food chain”.51 according to the united states environmental protection agency (epa):52 “dead zones are areas of water bodies where aquatic life cannot survive because of low oxygen levels. dead zones are generally caused by significant nutrient pollution, and are primarily a problem for bays, lakes and coastal waters since they receive excess nutrients from upstream sources”.53 the causes, life span, negative effects on aquatic life of ocean dead zones have also been traced to “excess nitrogen and phosphorus—an overgrowth of algae in a short period of time. “this is also called algae blooms. the overgrowth of algae consumes oxygen and blocks sunlight from underwater plants. when the algae eventually dies, the oxygen in the water is consumed”.54 the lack of oxygen makes it impossible for aquatic life to survive. the largest dead zone in the united states – about 6,500 square miles – is in the gulf of mexico and occurs every summer as a result of nutrient pollution from the mississippi river basin”.55 there are different types of algae on seas, lakes, reservoirs, rivers, ponds, bays and coastal waters but almost all types are harmful to the environment as follows: “when some types of algae blooms are large and produce chemicals, or toxins, the event is called a harmful algal bloom. harmful algal blooms can occur in lakes, reservoirs, rivers, ponds, bays and coastal waters, and the toxins they produce can be harmful to human health and aquatic life. harmful algal blooms are mainly the result of a type of algae called cyanobacteria, also known as blue-green algae”.56 it has also been established that “elevated nutrient levels and algal blooms can also cause problems in drinking water in communities nearby and upstream from dead zones. harmful algal blooms release toxins that contaminate drinking water, causing illnesses for animals and humans”.57 in nigeria, prior to the establishment of the federal environmental protection agency in 1988, effective industrial and legal frameworks for environmental degradation and pollution control was lacking. this decree gave the agency the overall responsibility of environmental protection and 51 ibid. 52 https://www.epa.gov/nutrientpollution/effects-dead-zones-and-harmful-algal-blooms 53 ibid. 54 ibid. 55 ibid. 56 ibid. 57 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.epa.gov/nutrientpollution/effects-dead-zones-and-harmful-algal-blooms 472 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia environmental management in nigeria.58 however, the nesrea act 2007, consolidated on the gains of the fepa act. consequently, section 23 and 24 provide national environmental standards for water quality in nigeria, which was lacking in previous legislation. section 23 provides that the agency shall make recommendations on water standards for protection of marine life, public water supplies, agriculture and industrial uses. the potency or effectiveness of the above act in dealing with the environmental issues mentioned above, however, is doubtful. we shall now examined threats of ocean overfishing and wastes in the oceans. 3. threats to ocean overfishing overfishing occurs when we remove fish too quickly or in too large quantities from oceans (or rivers) “when we are catching more fish than can naturally replenish (keep fish numbers at the same levels), overfishing happens. it is an unsustainable use of the ocean for fishing”. 59 a number of factors contribute to the overfishing of the ocean, including the development of fishing technology and the growing appetite for certain types of fish. as populations increase, the need for food increases. people are also increasing their demand for varieties and number of fish. fisheries are meeting this growing demand and are able to increase their profits from using methods that result in a bigger and faster catch. unsustainable practices: several practices have being isolated has been responsible for causing overfishing. these include: “blast fishing (the practice of using dynamite to kill schools of fish to maximize a catch), bottom trawling (using a heavy net to trawl along the ocean floor, damaging habitats) and by-catch (modern fishing nets can bring up unwanted fish or mammals with the catch, which then die and are discarded overboard)”. also there are “too many fishing fleets for the amount of fish available. it is estimated that there are four times the amount of fishing boats needed for our planet. some species will become extinct if we continue to catch them in such high quantities, e.g. bluefin tuna".60 over fishing is also known to destroy ecosystems: some of the less targeted fishing methods, such as blast fishing, can result in the destruction of whole areas of marine habitats. additionally, reducing the numbers of specific species can change food chains, which can have destructive results across the ecosystem. the instruments for 58 section 4 of the nesrea act 2007. 59 http://thecaudallure.blogspot.co.uk/2011/07/genetic-diversity-losing-out-to.html, world wildlife fund: https://www.worldwildlife.org/threats/overfishing, national geographic http://ocean.nationalgeographic.com/ocean/critical-issues-overfishing/, un http://www.un.org/events/tenstories/06/story.asp?storyid=800 60 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://thecaudallure.blogspot.co.uk/2011/07/genetic-diversity-losing-out-to.html https://www.worldwildlife.org/threats/overfishing http://ocean.nationalgeographic.com/ocean/critical-issues-overfishing/ http://www.un.org/events/tenstories/06/story.asp?storyid=800 journal of law & legal reform volume 2(3) 2021 473 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia curbing overfishing at the international level is widely covered under the united nations convention on the law of the sea.61 in nigeria, the nigerian fishes act 1971,62 operates to prohibit the “navigation of any fishing boat within nigerian territorial waters unless a license has been issued to the owner thereof. it is also an offence to take or kill any fish in any water in the nigerian with poison or explosives. contraveners shall pay a fine of n200.00 or face six months jail term”. this law is clearly now archaic and out of turn with current realities given the fact that the law was enacted since 1971 and the penalty fixed at the time, that is n200.00 which has little of no value in nigeria at the moment. this amount at present cannot even buy a big loaf of bread in nigeria. a potential contravener can easily pay the sum of n200.00 than going to jail. this law is therefore recommended for immediate review to tally with the realities of our current age. 4. threats of wastes in the ocean it is estimated that 8 million tons of plastic waste end up in the ocean every year. jenna jambeck, at the university of georgia, says “it is like having five shopping bags of trash on every foot of coastline around the globe. plastic is one of the main waste products that end up in the sea, although marine waste can include anything from glass to cans to abandoned sailing boats. many of the objects in the ocean end up in giant ‘garbage patches.' these are massive areas where waste gathers, that are formed by ocean currents”.63 five major well known sources of wastes in the oceans (also known as garbage patches) are: “two in the pacific ocean, two in the atlantic ocean and one in the indian ocean. the great pacific garbage patch is estimated to be larger than the state of texas, but currently noone has a really accurate way of measuring it”.64 there are various reasons adduced has been responsible for wastes in the world’s oceans. they include (1) wastes intentionally dumped by human beings or corporate entities, (2) wastes that are dropped carelessly on lands which nevertheless find there ways into the oceans, (3) wastes originating from natural disasters: including tsunami and hurricane wastes, (4) recent unconfirmed reports in the social media showing that dead victims from the ravaging covid-19 pandemic are now being thrown 61 for further discussion see: https://www.nationalgeographic.com/news/2017/12/un-highseas-conservation-treaty-ocean-protection-spd/ and https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&htt psredir=1&article=1671&context=ncilj 62 act no. 30 of 10th june, 1971 63 adapted from national geographic, greenpeace: http://www.greenpeace.org/international/en/campaigns/oceans/fit-for-thefuture/pollution/trash-vortex/, national geographic: http://education.nationalgeographic.co.uk/encyclopedia/great-pacific-garbage-patch/, eco kids: http://www.ecokids.ca/pub/eco_info/topics/oceans/risks_to_oceans.cfm 64 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.nationalgeographic.com/news/2017/12/un-high-seas-conservation-treaty-ocean-protection-spd/ https://www.nationalgeographic.com/news/2017/12/un-high-seas-conservation-treaty-ocean-protection-spd/ https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1671&context=ncilj https://scholarship.law.unc.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1671&context=ncilj http://www.greenpeace.org/international/en/campaigns/oceans/fit-for-the-future/pollution/trash-vortex/ http://www.greenpeace.org/international/en/campaigns/oceans/fit-for-the-future/pollution/trash-vortex/ http://www.ecokids.ca/pub/eco_info/topics/oceans/risks_to_oceans.cfm 474 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia into the rivers, seas or oceans by certain sections of the global communities. one hopes that these reports are not true because the effect of such development will negatively affect the life below water. ocean wastes are known to negatively affect marine life in many ways. this can happen in the undermentioned ways: • “birds, fish and other sea creatures can become trapped in plastic bags, netting or packaging and may get injured or die. • marine mammals and birds can end up swallowing waste in the water. it has been well documented that turtles, for example, mistake plastic bags for jellyfish. eating waste can lead to illness or starvation. • some of the marine debris is made up of material that contains chemicals that are harmful to fish and other species. whilst this may not directly harm the sea life that swallows the waste, it can result in harmful toxins entering the food chain”.65 the convention dealing with prevention of marine pollution via the dumping of wastes and other matter66 remains the convention on the prevention of marine pollution by dumping of wastes and other matter 1972, also known as “the london convention". this convention is reputed has the first convention around the globe directed at protecting the marine environment from the activities of humanity. it has been in operation since the year 1975. its major objective is “to promote the effective control of all sources of marine pollution and to take all practicable steps to prevent pollution of the sea by dumping of wastes and other matter. currently, 87 states are parties to this convention”.67 it remains to be added that “in 1996, the "london protocol" was agreed to further modernize the convention and, eventually, replaced it. under the protocol all dumping is prohibited, except for possibly acceptable wastes on the so-called "reverse list". the protocol entered into force on 24 march 2006 and there are currently 53 parties to the protocol”. 68 the position of dumping of wastes in nigerian coasts is governed by the harmful wastes (special criminal provisions) act, 200469. under this head, this paper reproduces what the lead author this paper has said in his ph.d thesis (unpublished) as follows: “a major statute enacted to protect the nigerian environmental generally and also purports to protect the niger delta region, in 65 ibid. 66 http://www.imo.org/en/ourwosrk/environment/lclp/pages/default.aspx 67 ibid. 68 ibid. see also imodocs website, at http://docs.imo.org. an extensive compilation of the events leading up to the adoption of the convention and protocol, as well as many of the historical documents (meeting reports, etc.), is available on the imo maritime knowledge centre website. 69 originally enacted via supplement to official gazette extraordinary no.79. vol.75a. 779 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.imo.org/en/ourwosrk/environment/lclp/pages/default.aspx http://docs.imo.org/ http://www.imo.org/knowledgecentre/referencesandarchives/imo_conferences_and_meetings/london_convention/pages/default.aspx http://www.imo.org/knowledgecentre/referencesandarchives/imo_conferences_and_meetings/london_convention/pages/default.aspx journal of law & legal reform volume 2(3) 2021 475 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia particular, is harmful wastes (special criminal provisions) act. this act was originally promulgated in the year 1988 in swift response to the dumping of toxic substances by an italian company acting in concert with nigerian businessmen at koko town in delta state in the niger delta of nigeria. it is on record that nigerian’s environmental protection policy and laws were barely existing and visibly prostrate until this deadly development. it was therefore the above development that jolted the federal government to promulgate the harmful wastes (special criminal provisions) act cap 165 and also the federal environment protection agency act (fepa). it is also on record that it was the koko incident that aroused global concerns which led to the basel convention on the control of transboundary movements of hazardous waste and their disposal and the bamako convention on the ban of the import into africa and the control of transboundary movement of hazardous wastes within africa. the latter was adopted by the organization of african unity (now african union) member states following their concern that the basel convention did not include a total ban”.70 conclusion this paper has attempted to analyze goal 14 (life below water/targets) of the united nations’ sustainable development goals 2019 to the development of marine/ blue economy towards the attainment of the said goal, existing legal framework and potential threats in nigeria and the global environment. the threats examined in this paper included: the threat of ocean acidification, the threat of ocean dead zones, the threat of overfishing and the threat of ocean waste in the oceans and the various existing international and domestic statutes, treaties and conventions. the paper is of the view that much still needs to be done to actualize targets set under goal 14 of the united nations’ sustainable development goals 2019. the following recommendations drawn from the above analyses are hereby made. recommendations 1. it is submitted that humanity should use fewer plastic products. this is because plastics that end up as ocean debris contribute to habitat destruction and entangle and kill tens of thousands of marine animals each year. to limit the negative impact, nations of the world should encourage people from dropping or littering plastics, carry reusable water bottles, learn to store food 70 see also ekpu a.o.o. op cit p.90 http://creativecommons.org/licenses/by-nc-sa/4.0/ 476 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in containers that are non-disposable and institutionalized the recycling of generated wastes, whenever possible. 2. it is also suggested that rivers floodplains be regularly maintained by government around the nations of the world. 3. nations should maintain flat areas of land next to rivers to reduce leaves and mud from flowing into rivers and from there into the oceans. 4. farm and sewage waste effectively managed to stop sediments from entering rivers and oceans. 5. it is also submitted that humanity make safe, sustainable seafood choices globally since global fish populations are rapidly being depleted due to demand, loss of habitat, and unsustainable fishing practices especially in the face of reports in the social media showing that dead victims from the ravaging covid-19 pandemic are now being thrown into the rivers, seas or oceans by certain sections of the global communities. 6. “given future climate change predictions, and with some 40% of the world’s population living on the coast and billions of dollars’ worth of infrastructure situated in coastal cities (with further substantive investment expected over the next decade), the ingredients are in place for significant economic damages if we continue to degrade our natural coastal defenses”.71 7. “the costs of taking action largely are offset by the long-term gains. in economic terms, the convention on biological diversity suggests that world scales up actions to sustain the global ocean requirement of a us$32 billion one-time public cost and us$21 billion dollars a year for recurring costs”.72 8. for open ocean and deep-sea areas, sustainability can be achieved only through increased international cooperation to protect vulnerable habitats. establishing comprehensive, effective and equitably managed systems of government-protected areas should be pursued to conserve biodiversity and ensure a sustainable future for the fishing industry. 9. on a local level, we should make ocean-friendly choices when buying products or eating food derived from oceans and consume only what we need. selecting certified products is a good place to start. 10. nations should eliminate plastic usage as much as possible and organize beach clean-ups. 11. nations should increase the sensitization of the global community about the importance of marine life and the need to protect it. 12. nations of the world should take urgent steps to protect and improve the coastal and marine ecosystems through the introduction of a comprehensive ecological master plan which must include baseline data of freshwater and wetland ecosystems. 71 see footnote 27 and 29 above. 72 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 477 © author(s). this work is licensed under a creative commons 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attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia “blue economy concept paper”, https://sustainabledevelopment.un.org/content/documents/2978beconce pt.pdf. “draft abu dhabi declaration blue economy” “effects dead zones and harmful algal blooms”, https://www.epa.gov/nutrientpollution/effects-dead-zones-and-harmfulalgal-blooms “genetic diversity losing out”, http://thecaudallure.blogspot.co.uk/2011/07/genetic-diversity-losing-outto.html, “goal 14 sdgs”, http://www.unevironment.org/explore-topics/sustainabledevelopment-goals/why-do-sustainable-development-goals-matter/goal14. “imodocs” website, at http://docs.imo.org. an extensive compilation of the events leading up to the adoption of the convention and protocol, as well as many of the historical documents (meeting reports, etc.), is available on the imo maritime knowledge centre website. “iucn releases new guidance 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semarang, indonesia “the blue economy growth, opportunity and a sustainable ocean economy: an economist intelligence unit”, briefing paper for the world ocean summit 2015, see page 7 of the report at https://www.oceanprosperityroadmap.org/wpcontent/uploads/2015/05/2.-state-of-the-blue-economy_briefingpaper_wos2015.pdf “why do sustainable development goals matters?”, unep–un environment programme, https://www.unenvironment.org/explore-topics/sustainabledevelopment-goals/why-do-sustainable-development-goals-matters. “world wildlife fund”, https://www.worldwildlife.org/threats/overfishing legal documents act no. 30 of 10th june 1971 supplement to official gazette extraordinary no.79. vol.75a. 779 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.oceanprosperityroadmap.org/wp-content/uploads/2015/05/2.-state-of-the-blue-economy_briefing-paper_wos2015.pdf https://www.oceanprosperityroadmap.org/wp-content/uploads/2015/05/2.-state-of-the-blue-economy_briefing-paper_wos2015.pdf https://www.oceanprosperityroadmap.org/wp-content/uploads/2015/05/2.-state-of-the-blue-economy_briefing-paper_wos2015.pdf http://www.unenvironment.org/explore-topics/sustainable-development-goals/why-do-sustainable-development-goals-matters http://www.unenvironment.org/explore-topics/sustainable-development-goals/why-do-sustainable-development-goals-matters https://www.worldwildlife.org/threats/overfishing 480 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia we know that when we protect our oceans, we're protecting our future. william j. clinton http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.azquotes.com/quote/557603?ref=ocean-conservation https://www.azquotes.com/quote/557603?ref=ocean-conservation https://www.azquotes.com/quote/557603?ref=ocean-conservation https://www.azquotes.com/author/2999-william_j_clinton journal of law & legal reform volume 2(1) 2021 15 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article role of regional autonomy in the indonesian national defense and security system (sishankamrata) ricky dermawan fauzi postgraduate program, faculty of law, universitas negeri semarang, indonesia  rickyhutala@students.unnes.ac.id cited as fauzi, r. d. (2021). role of regional autonomy in the indonesian national defense and security system (sishankamrata). journal of law and legal reform, 2(1), 15-38. https://doi.org/10.15294/jllr.v2i1.40905 abstract as one of the efforts to maintain the existence of a country, the presence of the military in an order of national and state life is absolute. the determination to protect and defend the country from all threats both symmetrical and asymmetrical that can disturb the sovereignty and peace of the nation is an obligation of all citizens without exception. the purpose of this study is to determine the basis of authority for local government in the field of national defense and security and to determine the contribution of regional autonomy in maintaining national defense and security. based on the problems examined by the authors, the authors use the normative legal research method. normative juridical legal research methods are methods or methods used in legal research conducted by examining library materials from existing law books and regulations. the basis of authority for regional governments in the field of national defense and security is article 1 number 2 of act number 3 of 2002 and act number 20 of 1982 concerning basic provisions of national defense. keywords: regional autonomy; indonesian national defense and security system journal of law and legal reform (2021), 2(1), pp. 15-38. doihttps://doi.org/10.15294/jllr.v2i1.40905 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 17 september 2020, revised: 11 november 2020, accepted: 21 december 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i1.40905 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 16 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 15 table of contents ……………………………..…...…………………..….. 16 introduction ………………………………….……………...………………. 16 the concept of defense and security of the indonesian government ……..………………………………………………..….……..... 18 i. background of granting regional autonomy in indonesia …………………………….……………………..……………… 20 ii. security and defense properties in government affairs……………………………………………………………………...... iii. assistance tasks as a framework for regulating defense and security of the universal people by the local government.......................................................................... iv. juridical basis of regional government authority in the field of national defense and security .................... v. contribution of regional autonomy in maintaining national defense and security .............................................. 23 27 32 33 conclusion …………………………………………………..………………… 35 references …………………………………………………………………...… 359 introduction the realist view of international security is pessimistic, therefore realists safeguarding and maintaining national security are the government's top priority for sustaining the life of the state and its population (akmal & pazli, 2015). one way to protect the country's defense is to maximize the potential of human resources. indonesia's abundant human resources can be used as a defense force, but must be supported by an adequate defense industry for the availability of effective weapons technology. professionalism of defense human resources is also needed by involving civilians in managing future defense (sebastian, 2018). meanwhile, according to nasution, one way to defend the country is by improving economic, social and cultural structures in the region. these improvements will be able to strengthen national defense. the improvement was carried out by increasing public awareness to defend the unitary state of the republic of indonesia, increasing security and public order, as well as increasing the performance and professionalism of the government apparatus (nasution, 2009). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 17 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia another way to safeguard the country is by simplifying rules and institutions and utilizing technology as a precise, effective, efficient, and applicable strategy that can maximize all strengths and take advantage of opportunities and minimize weaknesses (kurnia, nd). to maintain national defense, especially to protect the sovereignty of indonesia's territory, it is also necessary to standardize islands in indonesia. the efforts to standardize the islands in indonesia in accordance with international law and the efforts made by the government to standardize the names of islands in indonesia are very important to be realized. standardization of the names of islands in indonesia must be done so that islands which are part of indonesia's sovereign territory, by de jure, gaining international recognition will add legal force. nevertheless, there are obstacles faced by the indonesian government in standardizing island names such as, lack of coordination between the relevant authorities, the number of ethnic groups and various regional languages and limited funds (ardiansyah, 2011). as one of the efforts to maintain the existence of a country, the presence of the military in an order of national and state life is absolute. the determination to protect and defend the country from all threats both symmetrical and asymmetrical that can disturb the sovereignty and peace of the nation is an obligation of all citizens without exception. national defense in its definition according to law number 3 of 2002 concerning national defense is "all efforts to maintain the country's sovereignty, the territorial integrity of the unitary republic of indonesia, and the safety of all nations from threats and disturbances to the integrity of the nation and state." (article 1 number 1). referring to the law also explained that in addition to the indonesian national army as the main element of the state defense tool (striking force), other elements that play an important role in national defense that is outside of military power are natural resources and human resources (law n0. 3 of 2002 concerning state defense, hereinafter as indonesian state defense law). national defense is basically the entire defense effort that is universal, in which every implementation is always based on the rights and obligations of all spilled indonesian blood accompanied by confidence in the ability of one's own strength to defend and fight for the survival of the sovereign republic of indonesia, united and independent (department of defense, 2008: 44). it was further explained that national defense was not only focused on war but was more on efforts to bring about peace, maintain national integrity, secure and guarantee the implementation of national development. the national defense is located to give birth and fortify every inch of the territory of the republic of indonesia along with all its contents (dpr ri, 2008). from the description above, it is known that maintaining national integrity and security is very important. researchers will analyze the important role of regional autonomy in the universal defense and security system (sishankamrata) as an effort to defend the country. this research will discuss the basis of authority for regional governments in the field of national defense and security and the contribution of regional autonomy in maintaining national defense and security. http://creativecommons.org/licenses/by-nc-sa/4.0/ 18 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the concept of defense and security of the indonesian government the most effective effort amplified to maintain the existence of a country, the presence of the military in an order of life as a nation and a state is absolute. the determination to protect and defend the country from various forms of misinterpretation, both symmetrical and asymmetrical, which can disrupt the nation's sovereignty and order, is the obligation of all citizens without exception. state defense in its definition according to law number 3 of 2002 concerning state defense is "all efforts to defend the sovereignty of the state, the territorial integrity of the unitary state of the republic of indonesia, and the safety of the entire nation from threats and disturbances to the integrity of the nation and state." (article 1 number 1). referring to this law, it is also explained that in addition to the indonesian national army, the main actor is positioned as a means of the defending state (striking force), apart from that which also plays a crucial role in the framework of national defense is the state's resources: nature. and the people. both of these things are outside military power but have an important role in it. all efforts made which are universal are a form of national defense. it must be holistic and comprehensive known as universal defense. where in every implementation, it is always based on the rights and obligations of all the blood of indonesia, accompanied by a belief in the ability to maintain and fight for the survival of this country so that it ends in an order that is sovereign, united, and free of independence (ministry of defense, 2008: 44). it was further explained that national defense does not only focus on war but more on efforts to create peace, maintain the integrity of the country, secure and guarantee the implementation of national development. state defense is positioned to give birth and fortify every inch of the territory of the republic of indonesia and all its contents (departement pertanahan ri, 2008). national defense is not an independent territory but must be embedded in the development agenda to ensure the welfare of the people. the defense approach must be combined with the welfare approach. national security issues, which are dealt with through a military or authoritarian strategy by using a rifle butt, are no longer popular, because they will damage the direction of people's welfare that must be achieved. the concept of defense and security used as a reference by the indonesian government which is used as a basic foundation for the development of the country's defense force is known as the universal people's defense and security system (sishankamrata). as a system that becomes an important guideline in policy making in the defense and security sector, sishankamrata is considered to be still relevant to be maintained until now, despite significant changes in the political constellation both at home and abroad, at least in terms of the spirit of national defense. in the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 19 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia beginning sishankamrata was used as a defense strategy to deal with aggression carried out by outsiders based on collaboration between armed forces and society in carrying out guerrilla fighting when facing conventional superior force (sebastian, 2006). then in the next development as stipulated in article 1 number 2 of law number 3 of 2002 developed into a "universal defense system that involves all citizens, territories and other national resources, and prepared early by the government and held in a total, integrated, directed and continuing to uphold national sovereignty, territorial integrity, and the safety of all nations from all threats. when examined further sishankamrata has two roles, namely as military defense and non-military defense (soedjono, 1979). military defense in this matter covers military operations and military operations other than war. whereas nonmilitary defense includes, among others, the empowerment of national resources in which one component is civil power. so that in the implementation of the national defense strategy, military and non-military approaches are used as a defense unit that cannot be separated. both are hand in hand in combating every danger that lurks in the country's security. in this case, the state defense institution must have a strong base in order to be able to cultivate all the defense potential it possesses and be able to connect directly in all regions of the country. ideally, a country has a defense mechanism where the power it has is equal or greater than the threatening force. if the mechanism has not yet been reached, it will usually form a partnership to maintain a balance of power, but even if it cannot be implemented then there is no choice but to "fight the people". for indonesia, creating a perfect defense entity is far from feasible due to budget constraints. meanwhile, to make a defense alliance agreement with other countries will be constrained by the concept of a free and active foreign policy. therefore, the practical step, which is a rational decision, is total defense (sishankamrata). although the authority of defense development is the absolute responsibility of the central government, but as a form of implementation of the implementation of sishankamrata, local governments need to be included because it has a strategic position. in the explanation of law no. 3/2002 it is stated that "the problem of defense becomes so complex that its resolution does not only depend on the department (ministry) that deals with defense, but also the responsibility of all relevant agencies, both government and non-government agencies." whereas based on the explanation above, we can draw two questions that can serve as the basis for the formulation of problems regarding the important role of regional autonomy in supporting the universal people's defense and security system (sishankamrata), namely: a) what is the background of the distribution of regional autonomy in indonesia; b) the nature of security and defense in government affairs; c) assistance tasks as a framework for regulating the defense and security of the whole people by local governments; d) what is the basis of authority for local governments in the field of national defense and security ?; e) how does regional autonomy contribute to maintaining national defense and security?; http://creativecommons.org/licenses/by-nc-sa/4.0/ 20 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia i. background of granting regional autonomy in indonesia in the framework of regional government, the state can be seen as an organization in which the implementation of its performance is made to delegate part of the authority to regional governments with the aim that government affairs between the center and the regions can run more effectively, reduce the workload of the center, and certainly as an absolute goal of decentralization is increasing democratization (huda, 2009). decentralization developed rapidly around the world during the 1980s and 2000s. various forms of decentralization are applied in both industrial and developing countries. in developing countries the central government tries to play a role in the effort to redefine what the role of regional government is so that the government as a whole can be seen as democratic and towards good state administration, especially since the 1900s when the practice of decentralization reform began to be intensified (saito, 2008). massive reforms and an ideal state were characterized on the basis of ongoing democratization. to achieve this ideal condition, decentralization is usually considered to be implemented. this is because the local government is felt to be more able to reach the community and therefore can easily distribute the required public services. w. arthur lewis in his book politics in west africa states that in a country that imposes decentralization, the leader of the state must give local governments a limited degree of autonomy (lewis, 1995). politically, with the end of the cold war towards the end of the 1980s, democratization became an international trend. decentralization, particularly by increasing citizen participation in decision-making, is seen as a driving force towards democratization. continued by dennis a. rondinelli and g. shabbir cheema, decentralization is a way to improve the responsiveness of the government in the field of public services bagir manan states that decentralization is a process of dispersing power carried out through autonomy and assistance tasks. . in other words, decentralization has two distinguishable forms, namely autonomy and duty of assistance (manan, 2001). amar muslimin distinguishes decentralization into three types, namely decentralization given in the political sphere, given in the functional sphere, and given in the cultural domain. the handover of affairs in politics results in the transfer of authority from the top leadership of the government to take care of their own household interests so that representatives elected by the people in the area can take care of their own households. then the delegation in the functional realm means that the central government gives authority to certain community administrators to be able to take care of the interests of the people. while the delegation of authority in the realm of midwifery has the central point of giving not to minorities so that they can carry out their culture (muslimin, 1986). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 21 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia bgagir manan in the relationship between the central and regional governments, this division of authority is a necessity because indonesia's vast territory and high socio-cultural heterogeneity causes the central government to need a division of authority to local governments so that the dynamics of governance can run effectively (manan, 1994). this effort to share authority is an embodiment of the desire to involve the regions in real participation in developing regional potential and improving regional welfare. the relationship of authority is a form of relationship created by the distribution of government affairs and this directly determines the parameters of the functions that are regulated by the central government and can or must be submitted to the regions. furthermore, the division of authority will affect the pattern of financial relationships. the division of functions to local governments will result in a sharing of revenues and expenditures between the center and the regions. the third implication of this decentralization process is the emergence of the need for the amount of institution needed to carry out these functions. fourth, is the supervisory relationship which is a pattern to ensure that local governments carry out their affairs in accordance with the agreed regulations (yusdianto, 2015). this authority relationship is related to the method by which the administration of government is given benchmarks to be carried out. this method of determination will reflect the form of autonomy in a country adhering to a limited autonomy system or adhering to broad autonomy. classification of a country can be said to be limited autonomy if: first, the functions delegated to the regions are categorically defined and very rigid regarding the development of functions. second, the supervision from the center to the regions is carried out in such a way that the autonomous regions are not truly autonomous because they no longer have the independence to determine their own way of carrying out their affairs, third, the existence of rigid financial structures so that the regions do not have the ability to have income. this division of authority by regional government legal experts is referred to as government affairs. ni’matul huda argues that in essence, the division of government affairs is carried out into two main groups, namely: those that are fully implemented by the central government without any separation and indeed these matters should be exclusively regulated by the center in various forms of government, both federal and unitary. with de-concentration and co-administration. second, functions that can be implemented through the decentralization process, but these functions do not belong to the autonomous region. this authority relationship is related to the way in which governmental affairs are divided or determined. this method of determination will reflect the form of autonomy in a country whether it is limited autonomy or broad autonomy. it can be classified as limited autonomy if: first, regional government affairs are determined categorically and their development is regulated in certain ways; second, if the supervision and supervision are carried out in such a way that the autonomous region loses its independence to freely determine the ways to organize and manage the http://creativecommons.org/licenses/by-nc-sa/4.0/ 22 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regional household; third, the system of financial relations between the center and the regions, which causes things such as limited financial capacity of the region which will limit the space for regional autonomy. in this connection the division of authority is known as government affairs. according to ni’matul huda, governmental affairs are essentially divided into two groups. first, government affairs are fully carried out by the central government without being dispersed. this is possible because exclusively these matters should fall under the authority of the central government both in the unitary and federal states which are carried out by means of deconcentration or co-administration. second, other functions that could have been carried out on the basis of decentralization, but these functions were never exclusively owned by the autonomous regions. according to dennis a. rondinelli in his book decentralization, territorial power and the state: a criical response, not all matters must be regulated by the central government. theoretically, the central government only needs to regulate essential affairs in the form of agriculture, macroeconomics and other matters requiring a strong network (huda, 2005). the procedure for the division of tasks, responsibilities and authorities in regulating government affairs is known as the household system, this system is divided into three parts, namely formal, material and real. first, is the formal system of regional households which states that there is essentially no distinction between central and regional affairs. in all matters that can be carried out by the central government, mutatis mutandis can be implemented by the regions. in this system the division is based on the assumption that an affair will be more effective and efficient if it is carried out by a particular government. the only limitation in this system is that the regions are not allowed to carry out functions that have been designated by law as central affairs. the material household system has divided in detail what has become central and regional affairs. so conceptually this system brings awareness that there are indeed material fundamental differences between central and regional government affairs. furthermore, this system argues that functions can be sorted according to government units. the real household system delegates functions and authorities to the regions based on real factors in the field and looks at whether there is a need from the region and assesses the regional capacity. a government unit with attention to the growth of people's lives. this system is also said to be a real autonomous system. these systems as discussed earlier will determine the extent of a country's autonomy by referring to how many functions are rigidly determined as the affairs of a government unit. this article certainly discusses whether the agreement of the experts which states that regional autonomy should not regulate defense issues can be ruled out? or is there a new understanding emerging about the role of the regions in implementing the defense and security sector? although autonomy must be implemented broadly where the regions must be independent and free. central intervention must be limited to matters that are closely related to efforts to maintain a balance between the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 23 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia principle of unity (unity) and difference (diversity). on this basis, decentralization is limited, limited through the division of functions in the regional government law. this means that the limitation of autonomy is mainly fixated on the principles of unity and diversity. these two principles are used to judge whether certain functions threaten unity and difference? in the next section, we will discuss the tools that can be used by local governments regarding their participation in the defense and security domain. in the framework of decentralization, apart from those mentioned above, namely territorial decentralization, political decentralization, functional decentralization, and cultural decentralization. there are also other forms of co-administration and deconcentration. the extent to which the implementation of siskamhamrata can be taken over by local governments. by what means can it be fulfilled? however, long before entering into it, it is necessary to first describe the nature of sishamkamrata so that its characteristics can be read so that theoretically it can be identified through what kind of effort siskamhamrata can be amplified in accordance with the theory of regional governance. ii. security and defense properties in government affairs defense affairs in law number 23 of 2014 are described as “establishing and forming an armed force, declaring peace and war, declaring the state or parts of the country in danger, building and developing a state defense system and weapons, establishing policies for conscription, defending the state for every citizen, and so on " in article 67 letter f of the regional government law it is explained that regions and deputy regional heads have the obligation to carry out national strategic programs. which this program aims to maintain security and resilience in order to maintain the improvement of people's welfare. within the conceptual framework of national resilience is an engine that integrates aspects of national life. this is done by collaborating with all layers of various levels of life to enable the nation's resilience (dirwan, 2011). based on this concept which involves various layers of society in various aspects of life, then the trigarta and pancagatra system is formulated (dephan, 1998). trigarta consists of three natural aspects and pancagarta consists of five social aspects. these eight aspects are then reviewed to measure the resilience of a country. regarding the trigatra, the natural aspects contained in it are inherent aspects that cannot be changed or manipulated. trigatra aspect is relatively fixed such as geography, natural resources, and population. geography as an aspect of the first trigatra provides a visualization of the character of a specific region. geographical aspects encompass in and out geography. the internal aspect visualizes the spatial layout, geographical features, and geographical features of an area. meanwhile, the natural resources aspect covers the natural resources and potentials that are within the scope of space, up to the earth's surface (including the atmosphere). this natural wealth is divided into animal, vegetable, soil, minerals in the soil such as coal, gold, http://creativecommons.org/licenses/by-nc-sa/4.0/ 24 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia nickel, and others, air such as sunlight and oxygen and others, energy in the form of gas, as well as water, water, and sea flows. meanwhile, the population aspect includes humans who occupy certain areas. population problems are generally associated with the economy, security, distribution, and development. next is pancagatra which is a social aspect in the resilience of a country. this social aspect is dynamic, which includes: first, ideology, namely the philosophy of the nation as the foundation of the life of the nation and state of a social community. this philosophy is an ideal that the country aims to aim at. it is a set of principles that form the basis of direction for achieving the ideals of a country in a concurrent manner. it should be noted that the endurance of a country's ideology is very dependent on the flow of values in it. can ideology fulfill, guarantee, and respect the aspirations and needs of the people broadly and fundamentally? as the nation's ideology, pancasila still needs instruments so that it can always be in line with new emerging values and aspirations. second, political resilience which discusses the strength and power of a centralized state. the political life of a country is very much determined by two crucial sectors, namely the government and non-government sectors. the nongovernmental sect is a political infrastructure which has a function as a connector for the people's aspirations in the form of demands, attitudes, desires and others. meanwhile, the government sector is positioned as a political superstructure that makes policies, determines policy directions, and articulates non-governmental aspirations in its policies. the stability of political resilience is very dependent on the synergy of the two sectors. third, economic resilience. it is an effort made by nefara to minimize the economic gap between rich and poor. this happens because economic democracy has not been fully implemented. economic stability is carried out by leveling the gaps in various industrial sectors, regions and groups and individuals. this is because economic resilience will bring stability to defense and security in a country. fourth, is socio-cultural resilience. socio-cultural resilience is reflected in the quality of human resources in terms of education level and work ethic, which are currently considered relatively low. another problem in socio-cultural resilience is the low level of control of science and technology by indonesian resources. whereas ideally, diversity in indonesia can be used as an effort to increase knowledge. weak elements of culture and the social environment can greatly affect the quality of national resilience as a whole because no matter how good the system is if it is not accompanied by the quality of human resources it will be a mere waste. fifth, namely defense and security. the crucial problem in this aspect is the valley of state defense which should be actualized in sishankamrata. weak payments create instability in this area. therefore, appreciation is considered capable of contributing to the strength of national defense. in essence, all of the above aspects have struggled to strengthen the state of resilience in indonesia. people's aspirations are very important to be heard, especially in democracy. protection of individual rights is a catalyst for the establishment of a strong state resilience and security. the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 25 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia feasibility of living is still a big scourge in indonesia. lack of fulfillment of these basic things can be a potential split both horizontally and vertically. moreover, the state has used people's land by exploiting its geographical resources. this becomes unfair if the state is negligent or even negligent in fulfilling the most basic needs of its citizens. state security and security cannot be carried out by using violence or even killing in order to create fear in the community. the democratization efforts in indonesia must not be hurt by the ambition of creating false security. the country cannot be said to be safe just because the crime statistics are decreasing, a massive overhaul of the system is needed. for what good is the serenity that lies amidst the fear of the rifle. efforts to strengthen national resilience must emerge from the human rights paradigm by means of: security stability must depart from the roots of the supremacy of law and human rights; second, to take preventive measures against subversion efforts from various parties which are very likely to occur considering indonesia's vast territory; third, an adequate budget for military spending such as defense equipment in order to be able to improve performance in maintaining national security and defense; fourth, is to utilize national resources in carrying out development without neglecting environmental sustainability (sudarmanto & sudibyakto, 2011). this defense strategy prohibits indonesia from going to war unless attacked, and therefore indonesia desperately needs strength in the form of synergy of all elements of society (suryohadiprojo, 2005). in the framework of this defense strategy, it is necessary to formulate a policy containing the vision, mission and strategy of a concurrent defense that is universal in the country for a period of five and ten years. by knowing the characteristics of defense and security which are also amplified in sishankamrata as a universal defense model, we will find out how many regions must take part and what is the ideal form of synergy between the central government as the owner of defense and security authority, regional government as a vertical institution that is only can run a business if given the delegation of authority by the center, and civil society as an element that cannot be separated. sishankamrata components include trained people, abtri, community protection components, natural and natural resources, and integrated and comprehensive infrastructure. the threat to defense and security does not only come from threats with a militaristic nature. as mentioned earlier, another threat that cannot be separated from regional development is non-military threats. as previously mentioned earlier that threats to security and defense do not only threaten something related to the military. it is solely on the basis of this phenomenon that the meaning of security and defense is expanded. the main actors of defense issues are no longer the central government and military issues alone. however, it is increasingly penetrating into other sectors such as social, cultural, economic, political and environmental. in the discovery of this phenomenon, the state is not used as the main actor of defense. the phenomenon of the expansion of the meaning of defense and security has a consequence, that in order to establish security, it is necessary to have subjects and objects that are close to the people and grounded. this means that if the state really http://creativecommons.org/licenses/by-nc-sa/4.0/ 26 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia wants to establish a security and defense, it must also include individuals or community groups as actors. the concept fits — what i previously described as the copenhagen school of thought. this is because non-military security is currently increasing and hindering the rate of regional growth. of course, the inhibition of the rate of regional growth will have a negative impact and this can seriously cause democratization to slowly retreat. instead, democratization is an effort of reform. it cannot be done. it is necessary to remember that the formation of welfare is not only seen from one point of view, namely the economic aspect, but also cannot be separated from the aspects of national defense and security. this multi-dimensional approach will provide solutions and preventive policies that are more comprehensive and still accommodating. moreover, at present there are many aspects that can weaken regional development such as aspects of the social environment of juvenile delinquency, identity politics, which threaten national integration and can lead to disintegration. ryamizard ryacudu stated that threats to non-military defense manifested in 8 forms in terms of state defense or sishankamrata, namely: 1) cyber-attacks; 2) terrorism; 3) separatism; 4) violation of border sovereignty; 5) cultural infiltration; 6) infectious diseases; 7) natural disasters; and 8) drugs (kompas, 2016). even worse, these non-military threats actually come from within the country and are perpetrated by indonesian citizens. although there are cases where nonmilitary threats come from non-indonesian citizens (wna). the impact of this nonmilitary defense attack will be especially damaging in all aspects, be it ideology, economy, politics, culture, social security, and of course defense. therefore, it is necessary to have a mechanism to defend national defense. it is carried out by emphasizing defense values that are not only militaristic in view but also defense values from a non-military aspect. emphasizing the military aspect to maintain the status quo of national defense is not an abstract thing. of course, it is understood that the task of maintaining national integration and warding off threats from outside is not merely the task of the army or the police. all people have the obligation to defend the state, to contribute to maintaining the stability of national defense through nonmilitary aspects. because it is very close to the social dynamics of society. the community is very close to juvenile delinquency, narcotics, prostitution, to become players in identity politics. therefore, it is hoped that through sishankamrata, all levels of society work to fight against efforts to undermine national defense, both through military and non-military aspects, as explained by the ministry of defense of the republic of indonesia. this is because the obligation to maintain defense and security is not solely a military task. in this effort to destroy security, the war of interests, ideology and capability has become a milestone. the actors who play are often not seen carrying rifles or wearing camouflage uniforms. actors in the demolition of national defense currently play more behind the scenes and slowly but surely use their various resources to destroy the defense of a country (thornton, 2007). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 27 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia iii. assistance tasks as a framework for regulating defense and security of the universal people by the local government the involvement of local governments is solely for the purpose of synergies to be carried out in a structured, orderly, planned, controlled manner and is actually carried out in accordance with legal limits based on the principle of limiting authority determined by the 1945 constitution of the republic of indonesia. the change from an authoritarian regime to a more democratic one has certain serious consequences. this shift in political practice is due to the free will of the people because naturally humans refuse to be restrained. people who live a life under state repression will tend to harbor anger and one day like a time bomb will explode. the uncontrolled explosion caused many impacts such as vulnerability in the economy, politics, social, security and defense. a country with a new system that is still weak will tend to be aggressive in maintaining its integrity (mansfield & snyder, 1995). therefore, it can be imagined that with its geographic breadth and long coastline amidst democratization efforts, indonesia is experiencing an astonishing and busy transition. fears of external political attack are very likely to occur. the characteristics of a country's regime will greatly affect the resilience and security of the country, the more democratic it is, the less threat it poses (lynn-jones, 1998). so what about indonesia? has indonesia reached the point of mature democratization? with indonesia's defensive defense strategy coupled with weak synergy, the current democratization which is predicted to be the most ideal system still looks half-hearted. the region has a strategic location in order to coordinate the defense and security sector. this section will discuss regional defense strategies (mujono & arnawi, 2011). empowerment of the defense area is carried out by the department of defense, which is carried out by each regional command. this task is carried out by the indonesian army. in order to reach the parameters of a strong state defense, the state has absolutely the authority to use all elements of the state with the condition that it considers the rights of the people as stated in the law on state defense that "all indonesian territories can be utilized for the development of defense capability by taking into account the rights of the people and regulations. legislation" it is further elaborated in the same regulation that "national defense is prepared by taking into account indonesia's geographical conditions", as an archipelagic country this means that defense arrangements must pay attention to indonesia's geographical conditions. as discussed earlier regarding the mainland river line and so on. to reach a strong national defense parameter, the state is absolutely authorized to utilize all elements of the state. with the condition that considering people's rights. to answer how regions can perform in national defense agreements, the author will first describe the understanding in the historical context that has existed in indonesia. it should be noted that the sishankamrata concept is actually an old http://creativecommons.org/licenses/by-nc-sa/4.0/ 28 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia concept that was carried out during the new order era. however, at that time the implementation of sishankamrata was not effective. because the state is very strong and the community is very weak, the state is in control to carry out the hegemony of national defense. the state can force it to fulfill its will in actualizing sishankamrata. at that time there was no known democratic, transparent and open process of how sishankamrata should actually be carried out. people's criticism of the state defense mechanism becomes closed, the people are deliberately silenced by an undemocratic state. the concept of sishankamrata is only used as political jargon and has never really been implemented correctly. as a result, when the people saw the weak points of the state and then in fact the state was actually getting weaker, they felt the need to make changes, among which the most phenomenal was the implementation of reforms starting with the separation of abri's dual functions through tap mpr no. 6 of 2000 followed by a revision of legislation. regarding defense which emphasizes that the tni is a means of defense and the police are a means of security. this is actually a fundamental state effort to make the people believe that the weapons owned by the military and police are not intended to frighten the people and therefore it is hoped that the people will synergize for universal defense (samego, 2015). due to the close relationship between defense and geographical aspects of an area, assistance from the regions is urgently needed. in the theoretical development of defense and security has another meaning deepening. ole weaver and barry buzan introduced the copenhagen school, which stated that the security sector is currently being widened and its meaning deepened. so where does not only talk about matters relating to the military, namely positioning the state as the main actor but involving other actors such as individuals or communities. buzan et al stated that the conservative paradigm regarding traditional defense and security must change. currently, security and defense are no longer relevant to using a state-centric or military-centric approach, but other sectors are introduced in this theory, namely the military, environment, economy, social and politics (buzan, 1983). one of the five sectors above involves political, social and environmental issues, which definitely need support from local governments. this will explain why regional autonomy has a central role in being national integration in the concept of sishankamrata. the relationship between the development of regional autonomy and national integration is becoming very strong. this can be described as follows: the relationship of democracy as previously described with the tug of war of integration disintegration is very tight. guarding against disintegration is carried out in various ways which are wrapped in conflict management. this accurate method of conflict management is carried out through various forms including national and local reconciliation, bringing the introduction of the nation-state concept, integration efforts through nationalism, and decentralization (yasin, 2007). therefore national resilience is closely related to the loyalty of the people both vertically and horizontally. what is dangerous about democratization and is rarely http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 29 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia realized is the tug of war between economic prosperity and territorial defense. on the one hand, massive economic development is very likely to cause gaps that make people dissatisfied with government performance and this will certainly affect disintegration efforts, for example what happened in aceh province (sholeh, et.al., 2016). because the disintegration effort comes from the regions, it becomes logical that the paradigm of "centering" on defense and security affairs should be shifted. conflict management that has occurred over disintegration efforts in indonesia has always been clashed with national interests that use violence instead of dialogical efforts. for example, we see military operations by killing people who are considered separatist. whereas disintegration problems arise because of regional dissatisfaction with the central performance, especially in the realm of welfare, so the approach that must be taken is to understand that the threat of disintegration comes not from autonomous regions but from the center (fernanda, 2002). consequent decentralization was first introduced in 1999 through the first regional government law establishing a legitimate precondition by which regions can autonomously utilize their regional resources. one of the great ambitions of decentralization has a logical line, that is, it is hoped that with decentralization there will be even development, this will bring regions that have their own specialties, are stronger and improve the standard of living of people in the regions (hariani rs, 2018). this increase in living standards should narrow social jealousy due to inequality and end the maintenance of indonesia's unity and integrity (syawie, 2011). because inequality creates jealousy and seeds of hatred are treated unfairly (sukmana, 2005). resilience in the regions can be measured through the realization of economic stability, security, and internalization of state defense within the heart of the people. to realize this, it is necessary to have an integrated system that works as a supervisor, evaluator, and continuous development of conditions of resilience in the regions. the intensity of regional autonomy that he has promoted has made the empowerment of regional capabilities more optimal. regional geographic, social and political aspects are at the forefront of the implementation of resilience and security through sishankamrata. then what is the relationship between the level of resilience and regional security with the principle of co-administration as stated in the title of this section. we have agreed that even though defense and security are primarily central affairs, in an effort to boost prosperity and democratization, synergy is needed by all levels of state society. the author argues that this will can be amplified through the principle of assistance tasks in the framework of regional decentralization. theoretically, according to koesomaatmadja, the assistance task or zelfbestuur is a mechanism that can be carried out by the central government to request assistance from local government units to carry out certain household affairs which are actually the affairs of the central government (koswara, 1999). zelfbestuur in english is known as self-government, which means that all government activities are carried out by representatives given the delegation. in the task of assistance, functions carried out by the local government are still the matter of the central government and do not mean http://creativecommons.org/licenses/by-nc-sa/4.0/ 30 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that they are transferred to regional government affairs. however, the regions can fully carry out these assigned tasks (wasistiono, et.al., 2006). so in this principle, if the central government asks for assistance from the regional government, this does not mean that defense affairs are a concurrent affair of the regional government. in dutch legal regulations regarding assistance tasks, they are categorized into two parts, namely mechanical and facultative ones. in the task of mechanical assistance, the center provides in detail the procedures for the implementation of the tasks being assigned. furthermore, in the central facultative assistance task, it gives wider freedom to the regions to carry out the assigned tasks (koswara, 1993). then it should be noted that through this zelfbestuur mechanism, the center provides the regions with the financing needed to implement sishankamrata. joeniarto argues that the task of assistance is a way of exercising the absolute authority of the central government to make it more effective and efficient (joeniarto, 1979). the striking difference between co-administration and deconcentration is that deconcentration means that the central government provides central representatives in the regions to carry out a particular function. this is different from the assistance task, because in the assistance task where when the center uses the assistance task in an affair to the regions, it is not a representative from the center but the regional government. the task of assistance is different from decentralization, because in decentralization the regional government carries out functions that are really its affairs concurrently. however, the assistance task carried out is not a concurrent affair for a particular region. in short, the implementation of the assistance task remains the matter of the central government, but it is the regional government that executes the matter. the extent to which local governments can execute sishankamrata must be determined by the central government. for example, as an example that has been implemented in the city of bandung. the city of bandung has the authority to coordinate with the bandung kodim and has institutional relationships and commitments. this begins with efforts to even out welfare and development both nationally and regionally. the problems that arise in the city of bandung which are considered to be hindering the pace of national development are: due to a lack of understanding of the orientation of development; the existence of sectoral barriers that hinder the efficiency and effectiveness of the actualization of urban development affairs in the city of bandung; then this led to miscoordination between the regions and the center regarding the development of the city of bandung. for this reason, the department of defense, which has the authority to determine general policies in national defense, then embraced the bandung city government to coordinate all parties in the development of the city of bandung. it is hoped that this can empower all resources in the city of bandung. if visualized, the relationship between the ministry of defense and the city of bandung is a coordination relationship where the city government of bandung will provide a report to the ministry of defense. in this framework, both the bandung city government and the department of defense have the same convenience. because as we know that http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 31 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in carrying out its duties the department of defense does not have a regional office. for example, the ministry of religious affairs has regional offices in the regions, namely the offices of religious affairs in each district and city. it can be used to clean up the coordination relationship between department of defence and the city government. this form of utilizing the bandung city government to establish coordination regarding defense and security in the region is an efficient step in the realm of defense and security (armawi, 2011). in practice, the work program between the city of bandung and the kodim rtrw of bandung is carried out in five stages, namely: first, the initiation of the coordinating actor in this case is the indonesian ministry of defense; second, compile an activity plan previously agreed upon between the city government and the regional kodim; third, prepare technical plans and technical operational and administrative implementation instructions; fourth; fifth, implementing plans in the field based on mutual agreement; and sixth, supervising to evaluate the performance of the coordination team on work programs that have been implemented and will be implemented later. the coordination policy covers three main aspects for the success of the sishankamrata coordination work program. namely policies in geographical aspects, policies in demographic aspects, and policies in aspects of social conditions. policies in the geographic aspect mean that coordination must align the kodim with the city's rtrw in order to balance the interests of defense and security welfare in the area of each city. then next is the policy in the demographic aspect which means preparing reserve and supporting components. then finally in the aspect of social conditions, it means that this coordination must be implemented in a work program that is close to people's lives and touches the economy of urban communities in indonesia, community participation is needed in order to empower the defense area in the city. the pattern of giving assistance from the central government of the city government has been determined theoretically. first, the central government will assign certain tasks to the regent / mayor. furthermore, from the regent / mayor the order is handed over to the regional secretary. then the regional secretary can directly submit to the relevant agency or other technical institutions, or first submit it to bappeda to then be transferred to the related agency. next is implementation by technical institutions. in carrying out the task of assisting the regent or mayor in coordination with the governor and the local government offices, it can coordinate with bappeda. the reporting line is carried out by the office then reports to the regional secretary and by the regional secretary the report is submitted to the regent or mayor. then, in the final stage, the regent or mayor reports it to the central government. http://creativecommons.org/licenses/by-nc-sa/4.0/ 32 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia iv. juridical basis of regional government authority in the field of national defense and security the fall of the new order paved the way for the birth of law number 22 year 1999 concerning regional government which completely changed the relationship between the center and the regions. regions have the authority to determine the course of government, except for foreign policy, defense and security, justice, monetary and fiscal, religion, and authority in other fields. the latest legal basis regarding regional autonomy emerged in 2014 with the passing of law number 23 of 2014 concerning regional government. through this law it is stated that the highest responsibility for the administration of government remains with the central government. so that monitoring, empowerment, supervision and control will still be carried out by the central government, with the aim that regions can carry out maximum autonomy (f isnaeni, 2020). as discussed comprehensively in the first sub-section of this article, regional autonomy itself is a condition in which regions have the authority to be based on legal provisions to make optimal use of everything they have. this authority is used as a tool to exploit the potential, make the people welfare, and maintain social, cultural and regional economic stability (hamid, 2015). the current regional autonomy regulatory policy has an impact on the management of various kinds of resources and results in changes in the functions of existing institutions in the regions (rodiyah, 2012). article 22 of law number 32 year 2004 concerning regional autonomy states that "in implementing autonomy, the regions have the obligation to protect the community, maintain national unity, unity and harmony, as well as the integrity of the unitary state of the republic of indonesia". the provisions of article 22 can actually be interpreted as the responsibility of local governments to participate in the development of national defense. then article 27 paragraph (2) letter e of law number 23 year 2014 concerning regional government confirms the obligation of local governments to "participate in defending state sovereignty". however, it seems that the authority to participate in national defense is only owned specifically by local governments that have certain specialties, for example, areas directly adjacent to neighboring countries. in addition, local governments also have limitations when compared to the policies that have been taken by the ministry of defense and the indonesian’s army on the posture of national defense development, this is because local governments do not have the power to own and use armed forces. however, considering that threats to state sovereignty do not only come from armed invasion of other countries, but have far developed into an asymmetrical threat, the responsibility of local governments in providing protection to citizens is an important point in itself. the asymmetrical threat that began to spread after 9/11 was a non-military threat targeting the characteristics of a country's conflict and the opponents it faced could take the form of state, non-state, or hybrid actors. when http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 33 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia viewed from the design, asymmetric threats have three aspects, namely: 1). asymmetrical interests; 2). ideological asymmetry; and 3). capability asymmetry. so it can be concluded that the asymmetric war tells the story of the war between actors who have asymmetric ideologies, capabilities, and interests (alfajri, et.al., 2019). today, the threat of asymmetry still dwells on the problems of terrorism, separatism, riots, and provocations of racism, which if not addressed wisely will seriously disturb the authority and sovereignty of the state. these security disturbances occurred almost evenly throughout indonesia. the role of local government control in dealing with this problem is very important. therefore, the position of an institution that is fully responsible for defense and security, both the military and the police, requires local governments to coordinate. in this case, the president also gave orders to the governor to always create and maintain security in the regions (presidential instruction number 2 of 2013 concerning handling domestic disturbances). moreover, if you look further, the asymmetric threats that are non-military at this time are far more dangerous than just a military aggression of a country which is carried out in secret and ends up having such a massive impact. strong cooperation between the central and regional governments in forming synergy to become a universal defense benchmark in order to anticipate all threats to the life of the state and nation (singh, 2010). v. contribution of regional autonomy in maintaining national defense and security indonesia's massive and strategic landscape and rich natural capital are opportunities to become a great nation and, at the same time, have great potential to jeopardize the sovereignty of the republic of indonesia. the threats that may occur in all regions in indonesia can be multidimensional, ranging from religious, financial, environmental, social and cultural issues or aspects of protection and security (panjaitan, 2017). if referring to the provisions of article 1 number 2 of law number 3 of 2002 it is explained that "the universal defense system which involves all citizens, territories and other national resources, and is prepared early by the government and is carried out in a total, integrated, directed and continuous manner to uphold national sovereignty, territorial integrity, and the safety of all nations from all threats. " it seems that when juxtaposed with the old definition of sishankamrata version of law number 20 year 1982 regarding basic provisions of national defense, it still has a similarity where in the old law, sishankamrata is explained as "the order of all defense and security forces of the state which consists of basic components of trained people, indonesian’s army's main components, special components of community protection, and supporting components of natural resources, artificial resources, and national infrastructure, as a whole, integrated and directed ”(article 1 number 5 uu hankam). so that the principles which are the basis for determining the direction of defense political policy in indonesia have not changed drastically even though the http://creativecommons.org/licenses/by-nc-sa/4.0/ 34 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1945 constitution has been amended several times and the national police has left the indonesian’s army because of differences in duties and authority. in relation to the context of this discussion, if you only rely on the indonesian’s army as the sole force of national defense without the support of other elements, it is certain that indonesia's defense capability will look very fragile. the fragility can trigger the nation's self-esteem to collapse to its lowest point and be harassed by neighboring countries. even more so if we reflect on the lack of budget provided by the state for military power it is difficult to expect the indonesian’s army to carry out its duties, principles and functions optimally. there is a need for support from all citizens, including the resources they have to use for the sake of national defense and security. in the context of national defense, more specifically in the effort to deal with non-military threats, requires commitment and involvement as well as the obligation of all citizens to deal with each threat that is present in accordance with current laws and regulations. the position of the regional government has an important correlation to the national defense system because although the authority in the defense sector is in the hands of the central government, its resources are in the regions. local governments have the authority to utilize national resources in an effort to strengthen national security priorities. management of national resources in the regions is intended to build a universal defense system. starting from preparing human resources through fostering awareness of the defense of the recorded state and the issuance of supporting components and the formation of a state reserve component that is ready to be used to strengthen the main components (setiajid, 2019). regions can also be allowed to be access to non-military threats that have a multidimensional nature. therefore, it is important to develop non-military defense postures in areas that have capacities for early vigilance, national defense, technology, social, morals (kementerian pertahanan, 2017). one example that can be used as a reference for positive synergy between the central government and regional governments in the field of defense and security is about how the east kutai district government is contributing and participating in efforts to increase defense and security in the eastern part of kalimantan. among them helped the construction of the joint training command headquarters (makolatgab) along with tens of thousands of hectares of land to be used as a joint military training location. then build lanal mako and kodim 0909 sangatta, kutim regional police, and other fkpd offices (coordinating forums for regional leaders). supporting the improvement of regional waters security by patrol boats operated by the navy and other matters (tribun kaltim, 2015). or as the south manokwari district government gave land and building grants for use by the kasuari military region command (kodam) xviii as the military district master regiment office (kompas, 2020). from the two examples above it can be concluded that to support the resilience of the unitary republic of indonesia requires good coordination, synergy, and synchronization between the regional government and the agencies that overshadow national defense. there are three elements that can be utilized by local http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 35 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia governments to support the creation of a strong national defense. first, local government policies that complement and promote the development of national resilience. any initiative taken by the local government must not conflict with the direction of the central government. second, local governments must make appropriate planning related to the allocation of human resources and facilities for the purpose of national defense. third, develop the knowledge and character and interests of the community, specifically to support national defense. in addition, local governments must always be able to ensure the welfare of their regions. local governments must be able to function as a driving force for all entities to improve and fight for the welfare of their citizens (kompas, 2020; tribun kaltim, 2020). conclusion this article highlighted and concluded that the implementation of regional autonomy if it is not managed effectively and without adequate support from all stakeholders of the national power will be able to generate negative excesses, including: demands for regional expansion without the support of comprehensive studies, vertical conflicts, which lead to separatist movements. in order for the benefits of regional autonomy to have a positive effect on citizens, it is necessary to build public awareness regarding the national paradigm and supporting elements of the republic of indonesia starting from the 1945 constitution, pancasila, unity in diversity, national insight, and indonesian national resilience. must be given the opportunity to channel their aspirations properly as long as they do not violate the law. apart from that, reforming legislation in the field of national defense must be a priority and remain sustainable. this is a commitment that must be held seriously by leaders as an attitude to uphold the principles of good governance in the realm of administration and for the country's democratization process. so far, the idea of the defense of the people of the universe (sishankamrata) cannot be implemented as a whole, apart from the problem of budget supply, also because basically, the 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(2021). a discourse of chemical castration punishment: how we protect our children from the rapist?. journal of law and legal reform, 2(2), 263-270. https://doi.org/10.15294/jllr.v2i2.43072 submitted: december 5, 2020 revised: february 15, 2021 accepted: may 1, 2021 abstract the crime of rape against children is a serious problem that must be resolved by the government. the increase in cases of rape against children proves that the existing regulations have not provided a deterrent effect for the perpetrators. the state here has a role in dealing with victims of rape, the role of the state can be realized through the rehabilitation process as a step to restore the psychological condition of victims as a result of crimes that have occurred. in addition to rehabilitation, the state also issued regulations to prevent these crimes from recurring by issuing law number 17 of 2016. several questions arise from the author that the issuance of this law can fulfil the rights of children as victims of rape and be able to prevent the crime of rape from recurring. the research indicated that the existence of law number 17 of 2016 does not guarantee protection for child victims of rape. the law focuses on the punishment of perpetrators not on the rehabilitation process that should be carried out by the state and the rights of children who are victims of rape have not been fulfilled. keywords: chemical castration; sexual crime; child protection journal of law and legal reform (2021), 2(2), pp. 263-270. doi: https://doi.org/10.15294/jllr.v2i2.43072 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.43072 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 264 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction crime itself is a phenomenon that occurs in society and is as if it is something we commonly hear everyday, for example murder, theft, rape, raiding, gambling and so on. the perpetrators of crime themselves usually appear from those closest to us who we think are good and are unlikely to do things like that. rape is one of the crimes that we hear a lot about these days, and the victims are countless, ranging from children to adults. many ways were done by the perpetrators of this crime to deceive the victims, sometimes even with violence that resulted in the victim's life. the government in responding to the many cases of rape and sexual abuse against children in 2016 was so fast and responsive, that it issued a government regulation in lieu of a law whose sanctions were much heavier than the previous regulations. the government issued perppu number 1 of 2016, the second amendment to law number 23 of 2002 which later changed to law number 17 of 2016. with the birth of this law it is hoped that it will be able to narrow the space for perpetrators of sexual crimes against children, so think twice to carry out its action. where in law number 17 of 2016 contains castration sanctions for perpetrators of sexual crimes against children. the issue of castration sanctions for perpetrators of sexual crimes in indonesia has recently become a hot topic to discuss, especially after the case of child rape in mojokerto district, east java, which was carried out by a welder with the initials ma with a total of nine victims (kompas, 2020). in that case the perpetrator was sentenced to chemical castration and a prison sentence of 12 years and a fine of 100 million subsidiary to six months in prison by the judges of the mojokerto district court who had been strengthened by high court of surabaya. however, the application of chemical castration punishment for perpetrators of sexual crimes is not as easy as turning the palm of the hand, where in this case there are groups who are pro and contra. the group that agrees with the application of the castrated sanction thinks that the punishment has a deterrent effect on the perpetrator. meanwhile, those from the contra group, especially human rights activists, considered this method less humane and not the right way to solve problems. however, the human rights committee also understands this that sexual crimes against children are a serious and extraordinary problem so that strong regulations are needed. however, the national human rights commission reminds us that in imposing punishment, human rights must also be considered, both in terms of the objectives and methods of implementing these rules in order to achieve justice. several studies related to chemical castration both in indonesia and several countries show that this discourse has many pros and cons. on the one hand, some think that this punishment is contrary to the basic concept of human rights, but on the other hand, some others argue that sexual crimes against children are a form of extraordinary crime, so chemical castration is the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 265 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia right sanction as a form of protection for children and prevention of similar crimes (ratkoceri, 107; nour, 2020; zhuang, 2018; krismiyarsi, 2018; puteri, et. al, 2020; mardiya, 2017; hasanah & soponyono, 2018; windari & syahputra, 2020; tunggal & naibaho, 2020). law number 17 of 2016 regarding the second amendment to law no. 23 of 2002 already has a clear objective, is to prevent the fall of victims again. however, the role of the state in ensuring child victims of rape is still a conflict between the rights of the victims and the rights of the perpetrators. where the rights of children who have been victims of rape and sexual crimes must receive special treatment from their family environment, playmates, place of residence, even the state should restore the psychological condition of the child. the state must be at the forefront as a bulwark of initial protection so that child victims of rape can return to have bright hopes and can realize the ideals of the nation. method this research uses qualitative methods, qualitative research is research that intends to understand the phenomena experienced by research informants such as behavior, perceptions, motivation, actions, etc. holistically and by means of descriptions in the form of words and language. a special context that is natural and by utilizing various natural methods (moleong, 2013: 6). this type of research uses juridical empirical which in other words is a type of sociological legal research and can also be referred to as field research. this research was carried out in various related institutions (police, attorney general's office, courts), child protection institutions, and human rights activists. the focus of this research is chemical castration as an effort to protect the rights of children who are victims of the crime of rape. the main data sources in qualitative research are words and actions, the rest is additional data (lofland in moleong 1988: 112). the respondent referred to in this study is a team involved in the problem of protecting children from the crime of rape. the data analysis technique uses an interactive model which is carried out by collecting data, reducing data, and presenting data. current capture of sexual crimes in indonesia: how the criminals be punished? protection for the children especially in the sexual crimes has been stipulated and clearly stated on article 81 paragraph (7) on indonesian child protection law which regulate the imposition of additional penalties for perpetrators of sexual violence against children. the additional punishments were in the form of announcing the identity of the perpetrator, chemical castration, and installing http://creativecommons.org/licenses/by-nc-sa/4.0/ 266 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia chips. castration (kebiri) is a surgical procedure and or chemical use that aims to eliminate testicular function in males or ovarian function in females. castration can be done on both animals and humans (hello sehat, 2020). the regulation of castration in indonesia emerged after its birth law number 17 of 2016, where the government feels the need to adjudicate changes to laws related to the rampant cases of sexual violence against children. with this regulation, it is hoped that it will be able to prevent sexual violence against children or as a preventive measure from the government. the regulation of castration itself is contained in article 81 and article 82 of the second amendment to law number 23 of 2002. until now, the implementation of castration still reaps pros and cons in society, there are those who support it but also others who oppose it because of human rights reasons. based on the results of an interview with police commissioner sulityowati, sh, at the central java regional police said: "the castration has not been passed because it is still in the process of being further discussed. in fact, if the punishment for castration is true, the police agree, because after all, the punishment for child crimes must be strictly enforced”. it needs to be implemented immediately to provide a deterrent effect on perpetrators, given the record from the national commission for the protection of children and women in 2016 that the number of violence against women and children has increased. monitoring results from the national commission on violence against women and children show that there are 15 types of sexual violence experienced by women in indonesia, namely rape, intimidation / attacks with sexual nuances including threats or attempted rape, sexual harassment, sexual exploitation, trafficking of women for sexual purposes, forced prostitution, slavery. sexual abuse, forced marriage, forced pregnancy, forced abortion, forced contraception/sterilization, sexual torture, inhuman and sexual punishment traditional practices of sexual nuances that endanger or discriminate against women, and sexual control including discriminatory rules based on morality and religion. sexual violence has a specific impact on women. women victims of sexual violence are often silenced because they reveal that the violence they experience is considered a disgrace to themselves, their families and their communities. as a symbol of the sanctity of their community, women victims of sexual violence are often the ones to blame, accused of instigating the violence. because of the people's perspective on the symbol of holiness, victims also often get the stigma from society that they are "damaged goods". as a result, the recovery of the victim is not only related to the criminalization of the perpetrator, but also very much depends on the acceptance and support of the family and the surrounding environment (komnas perlindungan perempuan dan anak, 2016). the commission monitoring results found that in the last 4 years (20122015) an average of 3000 to 6500 cases of sexual violence occurred each year, in the personal/household and community sphere. in the sphere of household / http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 267 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia personal relationships, sexual violence increased to the second highest after physical violence, in the last 1 year. both in the realm of household / personal relations and in the realm of the community, the highest type of sexual violence is rape (catatan tahunan komnas perempuan dan anak, 2016). on the other hand, the narrow definition of rape in the criminal code and the bias of law enforcement officials in handling cases rape, causing women victims of rape to not get the legal protection they should. results of a study by the service provider forum (fpl), only 50% of reported rape cases have legal proceedings, and only 10% of these cases reach court decisions, another 40% stop halfway through. seeing the above notes regarding the number of cases of sexual violence, it is necessary to arrange a proper and correct arrangement even though it is contrary to the rights of the perpetrators .based on the results of an interview with kompol sulityowati sh, on may 29 2017 said: "actually it is against the rights of the perpetrators (ham) is clearly contradictory but back again to the actions they have committed is far more inhuman so in our opinion if it is applied it is fine but until now it has not been carried out and the police are still waiting for the results of the decision later". apart from the rights of the perpetrators who are rehabilitated or castration, we must also pay attention to the rights of children who are victims of the crime of rape because that is the main thing. for the problem, the perpetrator is deemed worthy of receiving a harsh punishment because it is in accordance with what they have done. law, like polis, is a vehicle needed to direct humans to rational moral values. in this philosophical construction of rational moral beings, aristotle compiled his theory of law. for her, law as a human guide to rational moral values, then it must be fair. legal justice is identical to general justice where justice is characterized by a relationship between one another, not selfcondemning, but also not prioritizing other parties, and the existence of equality. here again appears what is the basis of aristotle's theory, namely social-ethical feelings. it is not surprising, if his formulation of justice rests on the three essence of natural law which he considers to be the main principle of law. the principles in question are: hineste viver, alterum non leadere, sunum quique tribure (living respectfully, not disturbing others, and giving to everyone its share) (raharjo, 2010: 45). this principle of justice is the benchmark of what is right, good and right in life, and because it binds everyone, both society and the authorities. law is a selftwin of justice, this is the most practical way to achieve a good, just and prosperous life. according to aristotle, without a good socio-ethical concern for citizens, there is no hope of achieving the highest justice in the country even though those who govern wise people even with quality laws (raharjo, 2010: 45). apart from relying on rules, to achieve justice requires a wise way, namely practical ratios. in the criminal justice system, there are legal and social aspects. the legal aspect focuses on operational legislation in an effort to tackle crime and aims to achieve legal certainty (utari, 2012: 32). http://creativecommons.org/licenses/by-nc-sa/4.0/ 268 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia therefore, in the implementation of castration punishment, if it is seen from the understanding of the theory of justice, it is considered correct because at first it does not only look at one aspect or its own interests (the perpetrator) but also at the interests of others (the victim). in connection with the fulfillment of victims' rights carried out by the state, the state has a role towards child protection as stipulated in the 1945 constitution. then also the protection specifically for the rights of children as part of human rights, is included in article 28b paragraph (2) that "every child has the right to survive, grow and develop, and receive protection from violence and discrimination" (djamil, 2013: 27). protection of children's rights in indonesia in law no. 4/1979 on child welfare, which coincides with the stipulation of 1979 as the "international child year". this child protection law is then complemented by including the principles of children's rights in law no. 20/2003 concerning the national education system, law no. 23/2006 concerning population administration, law no. 23/2004 concerning the elimination of domestic violence, law no. 21 of 2007 concerning the eradication of criminal trafficking in persons, presidential decree no. 59 of 2002 concerning the national action plan for the elimination of commercial sexual exploitation of children, presidential decree no. ri. 88 of 2002 concerning the national action plan for the elimination of trafficking in women and children (djamil, 2003: 28). based on the convention on children's rights which was later adopted in law no. 35 of 2014 concerning amendments to law no. 23 of 2002 concerning child protection, there are four general principles of child protection which are the basis for every country in implementing child protection (djamil, 20-13: 2831), among others: 1. principles of non-discrimination 2. best interest of the child principle 3. the principle of the right to life, survival and development (the right to life, survival and development) 4. the principle of appreciation for children's opinions (respect for the views of the child). this principle confirms that children have personality autonomy. therefore, he can not only be seen as a weak, accepting, and passive position, but in fact he is an autonomous person, who has experiences, desires, imaginations, obsessions, and aspirations that are not necessarily the same as adults. aimed at developing the maximum potential or certainty (siahaan, 2009: 4), not limited to the government as an accomplice to the state but must also be done by parents of families and the community to be responsible for maintaining and maintaining these human rights (pramukti & primaharasya, 2015: 5). based on the results of an interview with police commissioner sulistyowati, sh, as the head of central java police ppa said: with the issuance of law number 17 of 2016, it is said that it has not fulfilled the rights of children as victims because it has not been carried out until now, but the rights of children as newspapers have http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 269 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia been regulated by the previous law, although not yet maximized. there needs to be a new law specifically related to the rehabilitation of child victims of rape, which has yet to exist”. on the basis of extracting data related to the rights of victims, law number 17 of 2016 does not regulate the rights of victims that must be fulfilled by the state but puts forward the process of convicting the perpetrators. meanwhile, the rights of victims that must be fulfilled have been stated in previous statutory regulations, although they are not yet maximized. conclusion this research emphasized and concluded that the application of castration in law number 17 of 2016 clearly has pros and cons related to human rights, where there is a right for a person to be a perfect being of god. in the articles of law number 17 of 2016 which confirm the application of the sanction of castration in the context of human rights, it does not fulfil the basic rights of citizens and human rights, as citizens must be guaranteed their rights by the state. however, it is seen from the context of child protection that the rights of children also need protection to realize the best interests of the child. the implementation of castration rehabilitation is aimed at deterring perpetrators of sexual crimes against children, with the hope that after the implementation of this regulation it will be able to reduce the number of crimes and also fulfil the rights of children as victims of rape. however, this regulation does not regulate the rights of victims that must be fulfilled but instead focuses on the process of convicting the perpetrator. references ahmad, a. 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(2018). chemical castration: international experience and chinese path to control pedophilia crimes. advances in applied sociology, 8(08), 575. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 125 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article determination of advancement of technology against law kholil said1, ayon diniyanto2 1,2 iain pekalongan, indonesia  kholilsaid86@gmail.com cited as said, k., & diniyanto, a. (2021). determination of advancement of technology against law. journal of law and legal reform, 2(1), 125-134. https://doi.org/10.15294/jllr.v2i1.44525 abstract the rapid technological advancement cannot be separated from the negative impact. unfortunately, technological advances that have a negative impact are often determinants of law. this condition is of course very detrimental to society. law, which is actually an instrument of state policy to prevent and act against the negative impacts of technological progress, is precisely technological progress as a determinant of law. this certainly creates problems that must be resolved. this study examines the determination of technological progress on the law. this study also formulates a legal model that is able to provide determination on technological progress. this research was conducted using a qualitative research approach and normative juridical research. the results of this study are to describe the evidence for the determination of technological progress against the law. in addition, it also formulates a legal model that is determinant of technological progress. keywords: determination; technology advances; law journal of law and legal reform (2021), 2(1), pp. 125-134. doi: https://doi.org/10.15294/jllr.v2i1.44525 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 25 november 2020, revised: 22 december 2020, accepted: 25 january 2021 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:kholilsaid86@gmail.com http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 126 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 125 table of contents ……………………………..…...…………………..….. 126 introduction …………………………………….…………………………… 126 method …………………………………………………………………………… 127 determination of advancement of technology against law …………………………………………………………………………………. 127 law that is determinant of technological progress through the legal formation model ……………………………. 129 conclusion …………………………………………………..………………… 131 references …………………………………………………………………...… 132 introduction technology from the past to the present can be said to continue to progress (wahyudi & sukmasari, 2014). humans continue to make innovations that make technological progress even more unstoppable. everything that was not imagined by many humans is now a reality (setiawan, 2018). even things that are considered impossible are often denied by advances in technology. interestingly, almost all humans on this earth have been or are in contact with technological advances. this condition cannot be denied because many humans cannot even escape technology. the rapid advancement of technology cannot be stopped. human creativity and innovation in the field of technology has made technological progress even faster. no wonder so many humans then make plans that were never thought of by many humans. these plans were greeted enthusiastically by various groups (cnn, 2020). many people then believe that plans beyond rationality that are only imagined can be realized with technological advances (bbc, 2016). there are also many people who do not believe and think that imaginary plans are only limited to seeking sensations and even lead to mere commercial purposes (azizah, 2016). finally, time will tell whether technological advances can bring about the plans of the imagination or not. looking at some evidence, it can be said that technological advances have been able to turn imaginary things into reality. technological advances that are able to make the condition of the imagination come true certainly have an impact. the impact of these technological advances can consist of positive impacts and negative impacts. the positive impacts of technological advances include: (1) the world is more effective and efficient; (2) it becomes easier for humans to carry out activities; and (3) many problems have been resolved by technological advances (azizah, 2020). the negative impacts of technological advances include: (1) increasingly fierce competition; (2) many human http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 127 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia activities have been replaced by technology; and (3) there was a lot of unemployment which led to crime (ratnaya, 2011). the positive impact of technological advances is certainly an advantage that can be sustained. the negative impact of technological progress is something that must be anticipated so as not to cause problems for humans. the state as the largest organization that has autonomous power can anticipate or minimize the negative impact of technological advances. the state through policy or legal instruments must be able to control the negative impact of technological progress so that it does not cause problems for mankind. how big the impact of technological advances must be controlled by the state through legal instruments. this is so that there is order and security for the people, considering that the state is the biggest controller in public order and security. interestingly, until now, laws that have become technological instruments and are supposed to control technological progress and its impacts, are often determined by technological advances. technological progress can be said to be the dominant determinant of law. indonesia as a country can be said to be an example that technological progress is often a determinant of law. rapid technological advances often make the law slow in responding (diniyanto & suhendar, 2020). as a result, the negative impact of technological advances often occurs and causes harm to society (diniyanto & suhendar, 2020). this paper examines the determination of technological progress on law in indonesia. this study also formulates laws that are determinant of technological progress through a model of law formation. method this research uses a qualitative research approach. researchers first capture the phenomena that occur in society and then describe them in narrative form (hardani, et.al., 2020). the next researcher finds the problem and analyzes the phenomenon and formulates problem solving model. the type of research used in this research is the juridical-normative research type (sonata, 2014). researchers will examine the laws and regulations related to this research. researchers also analyzed statutory regulations with a literature review which contained theories. sources of data used in the study consisted of primary and secondary legal materials. primary legal materials, namely laws and regulations related to this research. secondary legal materials are documents and library sources related to this research. determination of advancement of technology against law it can be said that technological progress almost always precedes the law (about technology). laws related to technology follow technological advances. no wonder http://creativecommons.org/licenses/by-nc-sa/4.0/ 128 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the law is often left behind in responding to technological advances (diniyanto & suhendar, 2020). as a result, the negative impact of technological advances is difficult to control by law. another thing that is no less interesting, technological progress is a determinant of the law. how is technological progress a determinant of the law? there is some evidence that technological progress is determinant of law. the first evidence can be seen from law number 11 of 2008 concerning electronic information and transactions as amended by law number 19 of 2016 concerning amendments to law number 11 of 2008 concerning electronic information and transactions hereinafter referred to as the information law and electronic transactions. this regulation often gets pros and cons in society. this regulation also suspects that there are many rubber articles that can carry out criminalization (prabowo, 2019). the pros and cons of several articles in the law on electronic information and transactions often cause injustice to various elements of society. this condition actually reflects that technological progress is a determinant of law so that laws that are formed in regulating technology have pros and cons in society. the second evidence is law number 44 year 2008 concerning pornography which in its journey raises various pros and cons in society. the pros and cons that exist in the community towards law number 44 of 2008 concerning pornography are seen from the different interpretations of the material content of law number 44 of 2008 concerning pornography. the multi-interpretation does not mean the fault of the law enforcer, but rather that the content of law number 44 of 2008 concerning pornography is unclear, which creates multiple interpretations. the existence of multiple interpretations of law number 44 of 2008 concerning pornography has the potential to cause harm to society (briantika, 2021). this condition is very clear that law number 44 year 2008 concerning pornography is not able to control technological progress so that the established regulations create multiple interpretations and have the potential to harm the community. the existence of content material in law number 44 of 2008 concerning pornography which has multiple interpretations indicates that the law has not been able to clearly interpret technological progress. as a result, the law is floating and has multiple interpretations. technological advances are determinants of law so that the law cannot provide concrete clarity for no multiple interpretations. the two evidence namely the ite law, law number 44 of 2008 concerning pornography, have indicated that laws, especially those related to technological advances, have pros and cons. the two evidence also illustrate that technological progress is determinant of law. in this situation, of course, a solution must be found so that the law can be determined so that it is able to prevent pros and cons in the law and to prevent the negative impact of technological progress, so that technological progress does not produce negative impacts that harm society. likewise, with laws which are determinants of technological progress, the law does not contain rubber articles and articles or material with multiple interpretations. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 129 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law that is determinant of technological progress through the legal formation model technological progress, which can be said to be a determinant of law, must be balanced so that there is an inter determinant between technological and legal progress. the law must be able to control the rapid advancement of technology. this is necessary so that the negative impact of technological advances can be prevented and minimized through state policy instruments, namely law. therefore, technological progress should not be a determinant of the law. in this regard, the law should be determinant of technological progress so that the law can control technological progress, especially in relation to the negative impact of technological progress. the question is: can the law be determinant of technological progress? given the rapid technological advances, while the law in this case the formation of laws seems slow in responding to technological advances. there needs to be a law that is determinant of technological progress. laws that are determinant of technological progress can be formed through a model of law formation. the next question is what is the legal formation model that is able to produce determinant laws for technological progress? answering this question, the researcher proposes that the law formation model that can produce determinant laws of technological progress, namely (1) a model of legal formation quickly; and (2) produce future-oriented laws. the formation of the law quickly is one of the instruments so that the law can control technological progress. i. the model of quick legal formation the slow formation of laws will be lagged behind by fast technological advances. therefore, we need a model for quick legal formation. the quick law formation model can be done by (a) quickly capturing problems in the public; (b) quickly formulating laws; and (c) quickly approve the law. a. quickly catch problems in public laws that are not left behind with technological advances and are able to control technological developments can be started with the formation of appropriate laws. appropriate legal formation is not limited to formal procedural only in accordance with statutory regulations, appropriate legal formation namely the formation of laws that prioritize formal and material aspects. the material aspect in question is the aspect of legal substance. the substance of the law must be appropriate and in accordance with the wishes of the community. fulfilling the substance aspect in the http://creativecommons.org/licenses/by-nc-sa/4.0/ 130 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia formation of the law can be done by capturing or absorbing problems in the public. good law is the law in accordance with the needs of society. therefore, in the formation of laws, we must quickly catch or absorb problems in the public (diniyanto & suhendar, 2020). the absorbed problem is then formulated a solution so that the law that is formed can solve the problem. law is a solution in public settlement because it is in accordance with public needs. conformity law as a solution in solving problems in the public, this can make law a solution in dealing with problems due to technological advances. rapid technological advances can be said to have both positive and negative impacts. the negative impact of technological advances can only be prevented or punished using fast laws. fast law can be done by forming laws that capture or absorb problems in the public, so that the laws are formed according to the needs of the community. laws like these are able to prevent and act against the negative impacts of technological advances. b. quickly formulate laws the speed in capturing or absorbing problems in the public must also be consistent in formulating laws. do not let the absorption of problems in the public be carried out quickly, but the formation of laws through the formulation of legal materials is carried out slowly. this condition is tantamount to not solving the problem because there is no quick follow-up after the absorption of the problem. therefore, lawmakers after absorbing problems quickly must also carry out legal formulation quickly. quick legal formulation is meant by a formulation that still relies on regulations and prioritizes the quality of substance and is in favour of public justice. do not let the legal formulation be quick but ignore the substance and harm the public interest. it is the equivalent of hasty legal formulation. c. quickly approve laws after quickly catching the problem and quickly formulating the law, you must quickly agree to the law. the approval process for the formation of laws is part of the process in the formation of laws. without an approval process, the law cannot be enforced. therefore, as a complete form of legal formation, there must be a legal approval process. slow legal approval will cause a law to be slow to apply. laws that are quickly enforced can be done on the condition that they have been approved by lawmakers. this means that speed in approving the law is necessary so that the law can be applied immediately. as previously mentioned, the speed of agreeing to the law must not ignore the substance and pro-public aspects. the speed of approving laws must be in line with alignments with justice and public values, so that laws that have been approved and are ready to be implemented can be in accordance with public needs. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 131 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia if the formation of the law is carried out at three speeds, namely (1) quickly catching problems in the public; (2) quickly formulating laws; and (3) quickly approve the law. the formation of these laws will produce laws that are fast and able to keep up with technological advances. laws that are fast and keep pace with technological progress can be determinants of technological progress, at least from the legal aspect in controlling technological progress. ii. law formation produces future-oriented law in addition to the model of law formation that is carried out quickly, it is also necessary to form laws to produce laws that are future-oriented. future-oriented laws are needed to predict technological progress. the existence of future-oriented laws can also prevent the negative impact of technological progress. this is because futureoriented laws have been able to map the possible future technological advances and the possible negative impacts, so that the law can be used as an instrument to prevent the negative impact of technological progress. the formation of laws to produce future-oriented laws can be done by forming (1) responsive laws and (2) futuristic laws. responsive law is open law and integrity. open is meant to be open to change, integrity namely accountability for the values of justice (nonet & selznick, 2003). the formation of laws that are responsive with the nature of being open to change serves to adapt quickly and even more quickly with technological advances. this condition is very important so that technological progress is not always determinant of law. responsive laws can be created and keep pace with technological advances if they are done quickly to catch problems in the public. in addition to producing responsive laws, the formation of laws must also produce futuristic laws. futuristic laws are needed in order to map or predict future conditions. mapping or predicting the future is needed as part of the steps to adjust to the future and prevent the negative impact of technological advances in the future. laws that can adapt to the future and prevent the negative impact of technological progress are laws that are determinant of technological progress. this means that if the formation of laws is able to produce responsive and futuristic laws, then technological progress will not always be a determinant of the law. law can actually be a determinant of technological progress. the legal determination of technological progress is not to hinder technological progress, but rather to prevent the negative impact of technological progress. conclusion this paper highlighted and concluded that determination of technological progress against the law is a natural thing, considering technological progress is often faster than the law. technological advances are already in the future, sometimes the law still dwells on past problems. technological progress is determinant of the law can http://creativecommons.org/licenses/by-nc-sa/4.0/ 132 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia actually be seen from at least two evidences. the evidence referred to is evidence of the pros and cons and the rubber article in the ite law. further evidence can be seen from the content material in law number 44 of 2008 concerning multi-interpretative pornography. these two evidences reflect that technological progress is determinant of law. technological progress, which is often a determinant of law, is certainly not good. this is because technological advances cannot be separated from negative impacts. determining technological advances that have a negative impact is certainly a bad thing. the law should be the controller to prevent and act against the negative impact of technological advances. this means that technological progress is not often a determinant of the law on the contrary the law must be a determinant of technological progress. one of the ways to do legal determination of technological advances is by using a model of law formation which includes (1) a model of rapid law formation; and (2) produce future-oriented laws. the quick law formation model can be done by (a) quickly capturing problems in the public; (b) quickly formulating laws; and (c) quickly approve the law, as for producing future-oriented laws, it can be done by forming (1) responsive laws and (2) futuristic laws. references 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(2020). how law responds to technological development?. unnes law journal, 6(2), 405-426. hardani, et, al. 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(2003). hukum responsif: pilihan di masa transisi. jakarta: perkumpulan untuk pembaharuan hukum berbasis masyarakat dan ekologis (huma). prabowo, h. (2019). banjir kasus pasal karet uu ite sepanjang 2019. retrieved from: https://tirto.id/banjir-kasus-pasal-karet-uu-ite-sepanjang-2019-eo4v on: 28 january 2021. ratnaya, i, g. (2011). dampak negatif perkembangan teknologi informatika dan komunikasi dan cara antisifasinya. jptk, undhiksa, 8(1), 17-28. setiawan, d. (2018). dampak perkembangan teknologi informasi dan komunikasi terhadap budaya. simbolika, 4(1), 62-72. sonata, d. l. (2014). metode penelitian hukum normatif dan empiris: karakteristik khas dari metode meneliti hukum. fiat justisia jurnal ilmu hukum. 8(1), 15-35. wahyudi, h. s. & sukmasari, m. p. (2014). teknologi dan kehidupan masyarakat. jurnal analisa sosiologi, 3(1), 13-24. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://tirto.id/banjir-kasus-pasal-karet-uu-ite-sepanjang-2019-eo4v 134 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote as computational technology and artificial intelligence matures, more people will be able to have better access to justice monica bay, fellow, stanford law school codex from: https://www.relativity.com/blog/the-best-of-legaltech-2017-our-favorite-quotes-from-the-speakers/ http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 333 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia review article critical study of criminal aspects of law number 8 of 1999 concerning consumer protection edy budianto1, diah ayu wulandari2 1, 2 public prosecutors office semarang, indonesia  akhtarfn2014@gmail.com cited as budianto, e., & wulandari, d.a. (2020). critical study of criminal aspects of law number 8 of 1999 concerning consumer protection. journal of law and legal reform, 1(2), 333-352. doi: https://doi.org/10.15294/jllr.v1i1.35451 abstract globalization and free trade supported by advances in telecommunications and information technology have expanded the space for the flow of transactions of goods and /or services across national borders, so that the goods and / or services offered vary both in foreign production and production domestic. such conditions on the one hand have benefits for consumers because consumers' needs for the desired goods and /or services can be met as well as increasingly wide-open freedom to choose various types and quality of goods and / or services in accordance with the wishes and abilities of consumers. the conditions and phenomena can cause the position of businesses and consumers to become unbalanced and consumers are in a weak position. in our daily lives we hear, read and even witness various business practices that are detrimental to consumers. business practices that are detrimental to consumers are not only carried out by large-scale business actors, but also by medium-sized businesses and small business actors. violations of consumer rights committed by business actors constitute a potential threat to the welfare of society, due to increased activity of business actors in the production and trade of goods and / or services to meet consumer needs if not monitored and weak law enforcement, consumers will be severely disadvantaged. for this reason, we need to understand the subject of legal protection to consumers through the explanation of law no. 8 of 1999 concerning consumer protection (consumer protection law), including a study of criminal aspects. keywords: critical study, criminal aspects, consumer protection act submitted: 8 january 2020, revised: 23 january 2020, accepted: 26 january 2020 journal of law and legal reform (2020), 1(2), pp. 333-352. doi: https://doi.org/10.15294/jllr.v1i2.35406. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:akhtarfn2014@gmail.com http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 334 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 333 table of contents ………………………………………………………….. 334 introduction …………………………………………………………………. 334 analysis of cunsomer protection in indonesia: normative regulations and challenges ………………………. 337 i. criminal aspects of the consumer protection act …. 337 ii. the need to strengthen consumer protection law ... 342 iii. legal protection of consumers in cybercrime ……….. 345 conclusion …………………………………………………………………….. 349 references ……………………………………………………………………... 350 introduction the state of indonesia which is based on law (recht staat) has the objective as contained in the opening of the 1945 constitution, which is to protect the entire nation of indonesia and all of indonesia's blood spill, and to advance public welfare, educate the nation's life and participate in carrying out world order based on peace eternal and social justice. this is the national goal of the republic of indonesia and at the same time becomes the foundation, the basis of steps and steps in the national ideology, politics, economy, social culture, defense and security. one of the national development philosophies of the indonesian state is the development of indonesian people as a whole which is based on the philosophy of the republic of indonesia. the formation of a society that is just and materially and spiritually equal, needs to be carried out in a fair and equitable development for the whole nation which is not only felt by some people, but can also be enjoyed by all levels of society without exception. the indonesian state guarantees the protection of all its citizens to be able to live prosperously and prosperously, which means that each citizen has the right to a decent life by fulfilling the needs of his entire life. therefore, the government provides facilities and infrastructure in order to meet the needs of the people who are constantly changing from time to time. the rapid development of the times is often not matched by the fulfillment of the needs of human life which also develops. this is in line with the ideals of the indonesian people, namely, to advance public welfare and educate the nation's life. the government must be dynamic and must see all the movements of people's lives, for example by creating employment for unemployed people. the community can use their skills to earn income, and to balance this out, it must be balanced with a consumptive lifestyle. the interesting relationship between business actors and the community is the main target of these business actors who are often called consumers. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 335 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia rapid economic development has resulted in various types and variations of each type of goods and / or services that can be consumed. such conditions, on the one hand, provide benefits for consumers because the needs for the desired goods and services can be met, and the wider freedom of choice to choose various types and quality of goods and or services in accordance with the desires and abilities of consumers. however, on the other hand such conditions can result in the position of businesses and consumers becoming unbalanced. relationships between business actors and consumers do not always show a positive relationship. disputes that characterize the relationship between businesses and consumers often occur. one of the factors that triggered the dispute was due to the imbalance in the position between the business actor and the consumer, which was also not followed by the readiness of the government in forming a regulation that addressed the problem. consumers become potential victims in the midst of the free trade process because of the condition of the people who are not fully ready to face these developments. business actors are required to always improve their products and still maintain responsibility for each commodity produced (product liability) (siahaan, 2005). business actors hold economic principles which of course increasingly corners the position of consumers. with the smallest capital as a business actor wants to get the maximum profit. while the economic situation of the community as consumers is not possible to follow it. business actors often do not think about the condition of the quality of goods and services produced in order to enrich themselves and let consumers continue to deteriorate by continuing to receive anything from busin ess actors. consumers become the object of business activities to reap maximum profits by business actors through promotional tips, how to sell, and the application of standard agreements that harm consumers. consumer protection is a matter of human interest and therefore it is hope for the whole community to be able to enjoy it. realizing consumer protection is to realize the relationship of various dimensions between one and the other having interrelationship and interdependence between consumers, businesses and the government. the results of a study conducted by the directorate of consumer empowerment in 2015 showed that the level of consumer empowerment in indonesia, as measured through the consumer empowerment index, was still low at 34.17%. while the results of a survey conducted by puska dagri in 2016 showed the results of almost 5,000 consumers throughout indonesia, on average more than 80% of them did not know and did not participate in smart consumer socialization activities (ministry of trades, 2016). the complaint data that entered the indonesian consumers foundation (ylki) throughout 2014 there were 1,192 reports, 2015 there were 1,030 reports and 2016 there were 781 reports. furthermore 2017 there are 642 and the last 2018 there are 564 reports. the chairperson of ylki daily tulus abadi explained, the number was dominated by the financial services sector with a portion of 50 percent. followed by the housing sector 21 percent, telecommunications 14 percent, e-commerce 9 percent, and electricity 6 percent. even out of a total of 234 complaints in the financial services http://creativecommons.org/licenses/by-nc-sa/4.0/ 336 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia sector, there are 103 complaints from consumers in the banking sector. online loans totaling 81 complaints, 21 complaints insurance, 21 complaints leasing and electronic money with 8 complaints. another part comes from banking, housing, online loans, telecommunications, online shopping, electricity, insurance, leasing, umrah and hajj, and transportation. the number of problems that most consumers complained about defaults of 36 complaints, then related to the administration of 23 complaints and complaints about the loss of 18 complaints. then around the agreement that is not appropriate there are 7 complaints, rejection of the auction 4 complaints, atm problematic 3 complaints, appraisal information 2 complaints, information data 2 complaints, remittance 1 complaint and take over 1 complaint and the other 5 complaints (ministry of trades, 2016). complaints from the public towards law enforcement officers become a bright spot for consumers. but there are also businesses caught red-handed who open business practices that produce counterfeit goods. in fact, there is also a service that intentionally or because of lack of mastery in their fields who perform actions that are detrimental to the public as consumers, for example a doctor who performs malpractice. this will be very dangerous, considering the actions of doctors like that concerning the survival of patients until there is an end in death. if left unchecked, this will become a polemic in a society that will continue to develop. at present, in accordance with business development, issues and studies of consumer protection law, receive special attention, especially because there are many things that can and need to be questioned about promotions and advertisements related to consumer protection efforts. the principles in advertising and promotion of goods and services are also important and need to be socialized and must be understood by consumers. honesty as one of the principles in the promotion of travel also needs further study to find benchmarks, especially its limitations and its application in the field of buying and selling (rukmini, 2006). the need for a law to provide protection for indonesian consumers is something that cannot be avoided, in line with the national development goals, namely the full development of indonesian people. law no. 8 of 1999 was present as an effort to prevent and repressive anticipation from the government to protect the public and provide legal order for businesses in the era of free trade. law number 8 of 1999 concerning consumer protection, is expected to have a positive influence on business actors and consumers as well as consumer protection is actually not only beneficial for the interests of consumers, but also for the interests of business actors in order to create a healthy business competition climate. the behavior of business actors who do not heed the legal rules that have been made by the government, to a certain degree can lead to criminal acts or crimes and must be resolved through the application of criminal law. the threat of criminal punishment is often not heeded by business actors who continue to look for loopholes as a justification for them not to be punished. criminal sanctions given to these business actors also have not been able to have a positive effect, namely deterrence for business actors as well as for victims, criminal sanctions imposed on these business actors cannot restore the situation of those who have suffered losses due to the actions of the non-compliant business actors. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 337 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia law enforcement that contains consumer protection is indeed being coveted by the public, especially the public (consumers) who are victims of entrepreneurs (companies) who violate consumer rights. the tendency of more and more companies that violate consumer rights, is a real challenge that tests the apparatus or parties who are competent in carrying out and realizing law enforcement. crimes that occur in the field of consumer protection are resolved through a crime prevention policy by applying criminal law rules, namely by imposing strict sanctions on anyone who violates the existing provisions. crime prevention can also be done through other approaches, namely preventive efforts that can be carried out by anyone involved in it, such as the government, institutions engaged in consumer protection, business actors themselves and the public as consumers (muhibbin, 2019). crime in the field of consumer protection can be carried out through criminal law policies with firmer legal sanctions. business actors who have been legally and convincingly proven to have committed criminal offenses in the field of consumer protection in any form as stated in law no.8 of 1999 concerning consumer protection will be subject to criminal sanctions such as imprisonment and fines as well as other additional crimes. for these various problems, the author will review the article entitled "critical study of the criminal aspects of the law of the republic of indonesia number 8 of 1999 concerning consumer protection". in general and the economy of the community as consumers in particular to create a conducive economic climate so that it does not harm other aspects of the state order. this paper examines and analyzes three main points, first, how is the regulation of criminal acts in the field of consumer protection according to law number 8 of 1999 concerning consumer protection? second, what is the legal strengthening of law number 8 year 1999 concerning consumer protection? and third, how is consumer legal protection due to the development of cybercrime? analysis of cunsomer protection in indonesia: normative regulations and challenges i. criminal aspects of the consumer protection act in the context of language, criminal means punishment. the connotation of the meaning of punishment in the context of criminal law is a punishment that contains misery and brings suffering to a person / legal entity subject to the sentence. because in the conception of punishment, the most minimal punishment is a fine, the rest is a corporal punishment such as deprivation of liberty (prison) and deprivation of the right to live based on the law (capital punishment) (hasanuddin, 2004). therefore, in its narrow meaning, the criminal law is also called the sanction law, which is the result of violating norms that have a criminal dimension that causes suffering, misery, or anything that is physically unpleasant. another limitation is law (chazawi, 2008). http://creativecommons.org/licenses/by-nc-sa/4.0/ 338 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in the criminal conceptualized as sanctions (bijzonder santierecht). the nature of this sanction places the criminal law as a means to guarantee security, order and justice, for which the criminal law can limit human freedom by imposing/imprisoning (imprisonment) and even more than that, the criminal law can deplete human life with the death penalty (utrecht, 1960). more detailed criminal law formulations were put forward by moeljatno. according to him, criminal law is, "part of all applicable law in a country, which establishes the basics and rules which function into several formulations, as emphasized by moeljatno (2008), as follows: a. to determine which actions should not be carried out, which are prohibited, accompanied by threats or sanctions in the form of certain penalties for those who violate the prohibition. b. determine when and in what ways those who have violated the restrictions can be imposed or convicted as threatened. c. determine in what way the imposition of criminal acts can be carried out if there are people who are suspected of violating the prohibition. basically, it is in both the material and formal context that the understanding of criminal law must begin, namely; first, understanding criminal law as a set of normative regulations through the study of written law (law in the book) contained in the criminal code as well as other criminal dimension laws that formulate criminal provisions in its articles. second, understanding the ways in which the nor ms of criminal law can be functioned at the practical level of resolution in order to answer and various (law in action) reality legal issues through the penal system available by referring to procedural law (procedural law). it is explained above, describ ing criminal law is always distinguished between material criminal law and formal criminal law (marpaung, 2008). however diverse the limits of meaning and understanding of criminal law have been formulated, the common thread is all that the law was made and held only for the maximum function of creating order, achieving justice and means of community reformer (mansur & gultom, 2008). this is at the same time as manifestation / realization of one of the functions and objectives of the country's presence according to the oldest version, namely through the legal media which according to lipson is to provide protection to all its citizens (mansur & gultom, 2008). all provisions of laws and regulations aimed at protecting consumers that existed at the time this law was enacted, are declared to remain valid as long as they are not specifically regulated and / or do not conflict with the provisions in this law (sembiring, 2006). legislation products that fall into the main legal categories, namely civil law, criminal law, commercial law, civil procedural law, criminal procedural law and international law. whereas sectoral law, namely the laws needed in the economic, financial and industrial fields (ekuin). legal products in the field of people's welfare (kesra) as well as law in the fields of politics and security (polkam) (sembiring, 2006). one of the main categories of legal instruments is criminal law. as an applied law, criminal law is theoretically normative and refers to and originates in the criminal code and is practically guided by the criminal procedure code. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 339 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia theoretically, the criminal code is the main legal instrument that provides the most portion of the regulation of consumer protection issues. although the criminal code does not find the term consumer, but implicitly there are several articles intended for the benefit of consumer protection, such as articles 204, 205, 359, 360, 382, 386, 383 and 390 of the criminal code. more explicitly will be described as follows: article 204 1) anyone who sells, offers, hands over or shares items that he knows are dangerous to the life or health of people, even though their nature; the danger was not notified, he was threatened with a maximum prison sentence of fifteen years. 2) if the act shows a dead person, the guilty person is threatened with life imprisonment or imprisonment for a certain period of time of maximum twenty years. article 205 1) anyone who due to his mistake (negligence) causes goods which are dangerous to the life or health of a person, are sold, delivered or distributed without being known of the dangerous nature by the purchaser or the recipient, threatened with a maximum of nine months imprisonment or criminal maximum confinement of six months or a maximum fine of four thousand five hundred rupiah. 2) if the act results in death, the guilty person is threatened with a maximum imprisonment of one year and four months or a year of imprisonment. 3) the goods can be confiscated. article 359 anyone who due to his mistake (negligence) caused another person to die, was threatened with a maximum of five years imprisonment or one year imprisonment. article 360 1) anyone who due to his mistake (negligence) causes another person to be seriously injured, threatened with a maximum imprisonment of five years or a maximum imprisonment of one year. 2) anyone who, due to his / her negligence, causes another person injury so that a disease or obstacle arises from carrying out a job or a search for a certain period of time, is threatened with imprisonment for a maximum of nine months or a maximum http://creativecommons.org/licenses/by-nc-sa/4.0/ 340 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia sentence of six months or a maximum fine four thousand five hundred rupiah high. article 382 whoever intends to benefit themselves or others unlawfully for the loss of the insurance guarantor or the legal body of the letter holder who legitimately causes a fire or explosion on an item insured against the danger of fire, or ignores, strikes, destroys, destroys, or makes it unable to used the insured ship or the cargo and wages to be received for the transportation of the insured cargo, or for which the body money has been received with a maximum imprisonment of five years. article 382 bus anyone to obtain, carry out or expand the results of trade or companies owned by themselves or others, committing fraudulent actions to mislead the general public or a certain person, is threatened, if the act can cause harm to his concurrent or other people's concurrent, because of competition cheating, with a maximum imprisonment of one year and four months or a maximum fine of thirteen thousand five hundred rupiah. article 383 threatened with a maximum imprisonment of one year and four months, a seller cheating on a buyer: a. for intentionally surrendering items other than those designated for purchase; b. regarding the type, condition or amount of goods delivered, using deception. article 383 bus a concession holder who deliberately used several copies of the letter with a title that was burdensome, and for some recipients, was threatened with a maximum imprisonment of two years and eight months. article 386 1) anyone who sells, offers or delivers food, drink or medicines which he knows is forged, and hides that, is subject to a maximum imprisonment of four years. 2) food ingredients, drinks or medicines are forged if the value or benefits become less because they have been mixed with something else. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 341 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia article 390 anyone with the intention to benefit themselves or others unlawfully, by broadcasting false news which causes the price of merchandise, funds or securities to go down or up, is threatened with imprisonment for a maximum of two years and eight months. as for the elaboration of witnesses as stipulated in the law of the republic of indonesia number 8 of 1999 concerning consumer protection stated in chapter xiii, the first part is administrative sanction and the second part is criminal sanction, stated in article 60,61,62 and 63. with the description as following: article 60 1) consumers resolution bodies have the authority to impose administrative sanctions on business actors violating article 49 paragraph (2) and paragraph (3), article 20, article 25, and article 26. 2) administrative sanctions in the form of determining compensation at a maximum of rp 200,000,000.00 (two hundred million rupiah). 3) the procedure for determining administrative sanctions as referred to in paragraph (1) shall be further regulated in statutory regulations. article 61 criminal prosecution can be carried out against business actors and / or their managers. article 62 1) business actors violating the provisions referred to in article 8, article 9, article 10, article 13 paragraph (2), article 15, article 17, paragraph (1) letter a, letter b, letter c, letter e ,, paragraph (2), and article 18 shall be liable to a maximum imprisonment of 5 (five) years or a maximum fine of rp 2,000,000,000.00 (two billion rupiah). 2) business actors who violate the provisions referred to in article 11, article 12, article 13 paragraph (1), article 14, article 16, and article 17 paragraph (1) letter d and letter f shall be sentenced to a maximum imprisonment of 2 (two) ) year or a maximum fine of rp. 500,000,000.00 (five hundred million rupiah). 3) violations that result in serious injury, serious illness, permanent disability or death are subject to applicable criminal provisions. http://creativecommons.org/licenses/by-nc-sa/4.0/ 342 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia article 63 against criminal sanctions as referred to in article 62, additional penalties may be imposed, in the form of: a. seizure of certain goods; b. announcement of the judge's decision; c. payment of compensation; d. orders to stop certain activities that cause consumer losses; e. obligation to withdraw goods from circulation; or f. revocation of business license. ii. the need to strengthen consumer protection law as is known, the consumer protection act in indonesia was made to deal with the impact of the monetary crisis, so that it can become one of the requirements to apply for the international monetary fund (imf) so that indonesia is given assistance. but until now it has not been revised. even though many have weaknesses, deficiencies or mistakes that can be seen from the grammatical, systematic aspects, the responsibilities of business actors, consumer dispute resolution, and institutional. there are at least four changes in substance in the consumer protection law including (hukumonline, 2019): a. rights and obligations of consumers and business operators / service providers. in the academic paper, there is a clause that the state has an obligation to protect consumers, the replacement of the term service provider to be a service provider / supplier, details of goods / services divided into movable and immovable, as well as tangible for goods, and professional or commercial for services academic text also includes the separation of the rights and obligations of consumers and business actors / service providers, especially the rights and obligations of consumers and service providers. professional services are required to have a code of conduct, while commercial services that aim for profit are not required to have a code of ethics. b. amendments to the consumer protection law must explain in detail the responsibilities of the businesses of goods and services. c. standard agreement and standard clause. according to johanes, as time develops, the form of contracts also develops. currently there are three known contracts namely negotiated contract, standardized contract, and digital contract. however, contracts made in e-commerce have not yet protected consumers. he agreed to form cross border resolution in the consumer protection law, especially for transactions conducted online. d. regarding the settlement of consumer disputes or consumer protection institutions. article 23 of the consumer protection law explains that consumer disputes can be resolved in two ways namely the court and outside the court. the consumer protection law states that decisions made through non-litigation or http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 343 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia bpsk are final and binding. then with the decision, there are parties who filed objections through the court. john calls such a solution flow wrong. consumer protection in indonesia is intended to provide legal protection for consumers in carrying out various activities to purchase goods / services. this legal protection is needed in order to avoid fraudulent practices carried out by business actors who want to reap maximum profits by providing the smallest possible facilities. provision of protection to consumers occurs when there is an imbalance between business people and consumers. this imbalance occurs when the community is in a weaker position than the business actor's position. consumer protection in indonesia is absolutely necessary, in addition to be a resolution at the united nations, consumer protection has become a necessity, where businesses in indonesia sometimes commit fraud against consumers. one form of consumer protection in indonesia is the enactment of the consumer protection law. one of the regulations concerning consumer protection in the consumer protection law is the regulation on standard agreements. the provisions regarding this standard agreement are regulated in article 18 of the consumer protection law. article 18 consumer protection law is born from the desire to protect the public from fraud by business actors in making agreements. this is because people in indonesia are often in a weak position, which must be under the interests of entrepreneurs. laws are made for the people. the formation of a statutory regulation is of course to protect the interests of the community and not for the benefit of certain groups. according to sutan remy sjahdeini, what is meant by a standard agreement is an agreement that almost all of the clauses have been standardized by the user and the other party basically has no chance to negotiate or ask for changes. among the clauses which are considered to be burdensome clauses and which appear in many standard agreements are what are called exclusion clauses (sjahdeini, 1993). standard clauses are one of the things that are prohibited in indonesia. this is because it is not in accordance with the principles of the agreement in indonesia. article 1313 of the civil code, article 1320 of the civil code, and article 1338 of the civil code are principles that must be possessed in making an agreement. however, at present the principles of the agreement are often ignored by business actors. article 1313 of the civil code states that an agreement is an act by which one or more people commit themselves to one or more people. article 1313 this civil code is the initial principle of an agreement. a treaty exists if there are two or more people binding themselves together. as for the other principle, namely regarding the legality requirements of an agreement is in article 1320 of the civil code which says that for an agreement to be valid, four conditions must be fulfilled, namely: a. their agreement is binding; b. the ability to make an engagement; c. a certain subject matter; d. a reason that is not forbidden. the first and second conditions are subjective conditions because they involve the people or parties who made the agreement. these people or parties are the http://creativecommons.org/licenses/by-nc-sa/4.0/ 344 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia subjects of the agreement, while the third and fourth conditions are called objective conditions because it involves the object promised by the people or subjects who made the agreement. an agreement that has been made by two or more people has the full power as the law for the parties that made it. this is one of the principles in an agreement and is known as pacta sunt servanda (budiono, 2010). this principle is contained in article 1338 of the civil code which states that everything that is made in accordance with the law applies as a law for those who make it. standard agreements that are often done by business actors usually do not meet the principles that already exist in the legislation in indonesia. the basic principles of this agreement must absolutely exist and be applied in every agreement in indonesia. this is to protect consumers from fraud perpetrated by business actors. consumer protection in indonesia has not been fully implemented properly. this can be seen by the many cases concerning consumer protection in indonesia. there are still many business actors who commit various frauds on goods / services that are bought and sold to consumers. in addition to business actors who commit fraud, the public as consumers are still not fully aware of their rights and obligations as consumers. the weak understanding of society regarding the rights and obligations of a consumer in indonesia is one of the reasons for the weak consumer protection in indonesia. as for strengthening the regulation on consumer protection in indonesia, an important commitment from the government together with the indonesian parliament is needed, where consumer rights must be protected. at present the dpr ri and the government have compiled a national legislation program for 2009 -2014, one of which is the credit agreement bill. it is expected that this credit agreement bill can provide legal protection for the parties who will enter into an agreement. the credit agreement bill is also expected to strengthen consumer protection in indonesia. the formation of laws and regulations must also be for the welfare of the community. one form of providing welfare to the community is to protect the rights of the community as consumers. protected community rights can provide peace for consumers themselves in buying or using goods / services. therefore, the formation of a statutory regulation must still pay attention to the rights of consumers. consumer protection can have a significant impact. this is because the public will feel quite valued by the existence of consumer protection. consumers feel protected their rights as consumers by the protection of the goods / services they buy. the state acts as a protector of the community, therefore the government and the house of representatives of the republic of indonesia must be able to provide interventions to business actors in order to pay attention to consumer rights. interventions carried out by the government and the indonesian parliament can be carried out by forming legislation that takes into account the interests of the community. efforts to improve consumer protection in indonesia need to be done in various ways. one way to protect consumers in indonesia is to change the consumer protection law as the basis for consumer protection in indonesia. the other way is by http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 345 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia conducting various education simultaneously in indonesia regarding consumer rights. this can be useful for increasing knowledge about the rights and obligations of the community as a consumer. strengthening of consumer protection institutions, where the consumer protection institutions can impose strict sanctions on business actors who deliberately harm consumers. iii. legal protection of consumers in cybercrime progress in the field of science makes technology always new, with no exception in the field of telecommunications, especially the internet media. the existence of these developments makes the space for transactions of goods and / or services to cross the borders of a country freely. such conditions support the effects of broader economic growth in the world. indonesia also feels this effect so that the development of the flow of goods and / services becomes easy to obtain, especially the consumers who benefit. in the era of globalization, when the boundaries of a country will become blurred, on the one hand the link between the national economy and the international economy will be even tighter. on the other hand, the current condition of globalization can cause the position of business actors and consumers to become unbalanced. consumers can be the object of business activities of business actors through advertising, promotions, ways of selling, and the application of standard agreements that harm consumers (fukuyama, 2004). with the understanding that all people are consumers, protecting consumers means protecting all people. in accordance with the mandate of the fourth paragraph of the preamble of the 1945 constitution of the republic of indonesia, consumer protection is important. moreover, if it is realized that consumers or the public are the executors of development which are at the same time a source of capital accumulation for development, then for the continuation of national development it is absolutely necessary to protect these consumers (fukuyama, 2004). however, in reality, education for consumers is still relatively minimal and consumer awareness of the ir rights and obligations is still low. to guarantee the implementation of consumer protection, the government enacted law no. 8 of 1999 on consumer protection which compels business actors to obey it, accompanied by strict sanctions for violators. settlement of disputes over disputes faced by the community, including in the case of consumer disputes, can be resolved through litigation (through court) and non-litigation (not through court). in addition, according to supreme court regulation no. 2/2015, consumers now have several alternatives to settle their dispute. the settlement of the lawsuit makes a fresh breeze in alternative dispute resolution which can usually only be resolved in the realm of litigation. for this reason, non-litigation institutions have emerged, for example through the consumer dispute resolution agency (bpsk) and other institutions / forums that can resolve these disputes. in this discussion, more detail will be covered regarding consumer protection due to cybercrime crimes. there are so many definitions of cybercrimes, http://creativecommons.org/licenses/by-nc-sa/4.0/ 346 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia both according to experts and based on statutory regulations. these definitions can be used as the basis for the regulation of cyber criminal material. for example, sussan brenner (2011) divides cybercrimes into three categories: crimes in which the computer is the target of the criminal activity, crimes in which the computer is a tool used to commit the crime, and crimes in which the use of the computer is an incidental aspect of the commission of the crime. meanwhile, nicholson used the terminology of computer crimes and categorized computer crimes (cybercrimes) into objects and subjects of criminal acts and instrument of criminal acts. first, a computer may be the ‘object’ of a crime: the offender targets the computer itself. this encompasses theft of computer processor time and computerized services. second, a computer may be the ‘subject’ of a crime: a computer is the physical site of the crime, or the source of, or reason for, unique forms of asset loss. this includes the use of ‘viruses’, ‘worms’, ‘trojan horses’, ‘logic bombs’, and ‘sniffers.’ third, a computer may be an ‘instrument’ used to commit traditional crimes in a more complex manner. for example, a computer might be used to collect credit card information to make fraudulent purchases (hukumonline, 2019). according to the united nations (un) instrument in the tenth united nations congress on the prevention of crime and the treatment of offenders held in vienna, 10-17 april 2000, the category of cyber-crime can be seen narrowly or broadly, namely: a. cyber crime in a narrow sense (“computer crime”): any illegal behavior directed by means of electronic operations that targets the security of computer systems and the data processed by them; b. cyber crime in a broader sense (“computer-related crime”): any illegal behaviour committed by means of, or in relation to, a computer system or network, including such crimes as illegal possession, offering or distributing information by means of a computer system or network. convention on cybercrime (budapest, 23.xi.2001) does not provide a definition of cybercrimes, but instead provides provisions that can be classified into: 1) title 1 – offences against the confidentiality, integrity and availability of computer data and systems 2) title 2 – computer-related offences 3) title 3 – content-related offences 4) title 4 – offences related to infringements of copyright and related rights 5) title 5 – ancillary liability and sanctions corporate liability based on data from trend micro business manager aulia huriadi, the modes used by cyber crime are currently increasing more sophisticated than in previous years. the cyber crime can break down the security of data of internet users from anywhere in the world. several methods are used by creating fake applications. through a fake application spread by cyber crime, anyone who finally downloads will http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 347 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia certainly be infected with a virus or often referred to as the zombie. viruses or zombies will later help cybercriminals track user's personal data and use the personal data to do things that harm users. as for one of the targets of cybercriminals to commit crimes is a country where many residents use broadband data to transact. even though the government has issued regulations on information and electronic transactions (ite) namely law no. 11 of 2008, but not enough to overcome the problem of cyber crime (hukumonline, 2019). while legal protection is created because of the existence of a group of people called the community in a particular community. every individual in the community has different interests and all try to fulfill their interests. the law has a major role, namely as a rule to regulate human behavior in fulfilling their interests, with the existence of the law, it is hoped that there will be no conflict of interests between one individual and another. wignojodiputro (1974) believes that: “the law has a role in regulating and maintaining public order, which among others is regulating the relationship between fellow citizens of one community to another. the relationship must be carried out according to the norms or legal norms that apply. the existence of the rule of law is aimed at cultivating the interests that are in society so that chaos can be avoided in society” utrecht provides legal restrictions namely the set of regulations (orders and prohibitions) that take care of the order of a society and therefore must be obeyed by the community (kansil, 1999). according to fitzgerald that: salmond's theory of legal protection that the law aims at integrating and coordinating various interests in society because in a traffic of interests, protection of certain interests can be done by assassinating various interests 15 on the other hand (raharjo, 2000). the interest of law is to take care of human rights and interests, so that the law has the highest authority to determine human interests that need to be regulated and protected. legal protection must look at the stages, namely legal protection born of a legal provision and all legal regulations provided by the community, which basically constitutes the community's agreement to regulate the behavioral relationship between members of the community and between individuals and the government that is considered to represent the interests of the community. according to satijipto raharjo, legal protection is to provide protection for human rights that have been harmed by others and that protection is given to the community so that they can enjoy all the rights provided by law (raharjo, 2000). in legal protection, there are several characteristics as mentioned by pjillipus m. hadjon that: legal protection for the people as a preventive and preventive government action. preventative legal protection aims to prevent disputes, which direct government actions to be careful in making decisions based on discretion and respensive protection aims to prevent disputes, including handling in judicial institutions (nasution, 1990). http://creativecommons.org/licenses/by-nc-sa/4.0/ 348 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia based on the provisions of the people's consultative assembly of 1993 there are directives regarding consumer protection, namely protecting the interests of producers and consumers. based on these directives, there are 2 (two) things that need to be considered, namely the existence of producer community groups an d consumer community groups and the interests of each group that needs to be protected (nasution, 1990). with the direction of the mpr stipulation, there is an understanding of consumer law, namely the overall principles of rules governing the relationshi p and issues of supply and use of goods and / or services between suppliers and users in public life (nasution, 1990) according to az nasution that: consumer protection is part of the law that contains the principles or rules that are governing and also contain properties that protect the interests of consumers. the consumer law is defined as the overall principles and legal norms that govern the relationships and problems between various parties with each other relating to consumer goods and / or services in life relationships. based on the provisions of article 1 number 1 consumer protection law, it is stated that consumer protection, which is all efforts that guarantee legal certainty to provide protection to consumers. with the existence of legal certainty to protect consumers who are strengthened by the consumer protection law, at least it provides a hope that business actors no longer act arbitrarily which can harm consumers' rights. then with the consumer protection law and laws and regulations governing consumer protection, the consumer has a balanced position. in the event of a violation or adverse action against consumer rights, the consumer can sue or sue business actors. consumer or consumer, literally in the dictionaries is defined as "someone or something a company that buys a certain item and / or uses a certain service", or "something or someone who uses an inventory or a number of goods", there is also a mean "every person using goods and / or services ". based on the provisions of article 1 number 2 consumer protection law, which defines consumers as: "every user of goods and / or services available in the community, both for the benefit of themselves, families, other people, and other living creatures and not for trading". the law is expected to be able to educate the indonesian people to be more aware of all the rights and obligations held by business actors. to increase the dignity of consumers, consumers should need to increase awareness, knowledge, care, ability, and independence to protect themselves, and foster the attitude of responsible business actors. as a comparison with the definition of consumer protection regulated in the consumer protection law, the following will be discussed definitions of consumer law and law. consumer protection, consumer law and consumer protection law are 2 (two) areas of law that are difficult to separate and draw from. in essence, consumer protection law is part of consumer law that is unified and inseparable. consumer protection law is part of consumer law. the definition of consumer law, which is the whole of the principles and rules governing the relationship and problems of providing and using products and /or services between providers and their use in social life. therefore, consumer protection law is the whole of the principles and rules http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 349 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia that govern and protect consumers in relation to the problem of providing and using products and/ or services between providers and their use in social life. based on the provisions of article 1 number 1 of the consumer protection law, an understanding of consumer protection is formulated as: "all efforts that guarantee legal certainty to provide protection to consumers". the formulation is expected to be a place for protection to eliminate arbitrary actions which are detrimental to consumers and can also result in legal uncertainty just for the sake of responsible business actors (widjaja & yani, 2003). therefore, so that all efforts can guarantee legal certainty, then the size is qualitatively determined in the consumer protection law and other laws that are also intended and still apply to provide consumer protection, both in private law (civil) and the field of public law (miru & yodo, 2005). before the enactment of consumer protection law there were various laws and regulations relating to consumer protection. these laws and regulations are not directly about consumer protection, but indirectly they are also intended to protect consumers. with the enactment of the consumer protection law, the law is a positive provision specifically regulating consumer protection. conclusion this paper highlights and concludes that consumer protection is a counterweight to the existence of business actors with consumers. this is intended so that there is no injustice or imbalance between business people and consumers. standard agreements. are one thing that is prohibited in the consumer protection act the need to increase consumer protection by changing the consumer protection law, consumer education, strengthening consumer protection institutions. another thing is to strengthen consumer protection in indonesia, namely by providing a reference in the formation of legislation for the protection of consumer rights. legal protection for consumers to resolve consumer disputes that are repressive in nature, namely by protection when consumers have suffered losses or suffered illness due to consuming goods and or services. institutions that are expected to play an important role in protecting the public /consumers are not only litigation judicial institutions that are in the general court but non-litigation institutions such as the consumer dispute resolution board (bpsk) and other arbitration institutions. ideally, consumer protection provided to the community must be preventive, for example, the socialization of consumer protection policies to consumers and business actors in various regions as an effort to minimize the use of goods that are not in accordance with the standards of goods in force in each country. providing education to consumers through integrated consumer clinics. training of motivators for consumer protection in the regions a s an effort to develop consumers to have a critical, intelligent, and careful nature in consuming or utilizing goods and / or services. as well as the need for synergy between each policy or regulation made by the government so that it does not overlap and always provides flexibility for dispute resolution outside the court. http://creativecommons.org/licenses/by-nc-sa/4.0/ 350 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references barkatullah, a. h. 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(1993). kebebasan berkontrak dan perlindungan yang seimbang bagi para pihak dalam perjanjian kredit bank di indonesia. jakarta: institut bankir indonesia. shofie, y. (2008). kapita selekta hukum perlindungan konsumen di indonesia. bandung: citra aditya bakti. tobing, d., & siregar, t. (2012). perlindungan hukum pidana terhadap konsumen bidang pangan, mercatoria, 5(2), 92-105. doi: http://dx.doi.org/10.31289/mercatoria.v5i2.678 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://rechtsvinding.bphn.go.id/ejournal/index.php/jrv/article/view/220 http://dx.doi.org/10.31289/mercatoria.v5i2.678 352 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia utrecht, e. (1960). hukuman dalam pidana. bandung: universitas. widjaja, g., & yani, a. (2003). hukum tentang perlindungan konsumen. jakarta: gramedia pustaka utama. wignojodiputro, s. (1974). pengantar ilmu hukum. bandung: alumni. yulita, b.p. (2016). penegakan hukum pidana dalam perlindungan konsumen muslim dari produk makanan yang tidak halal di kota pekanbaru, jom fakultas hukum, 3(2), 1-16 http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23ce4c7ea625 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 2(3) 2021 377 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article money ransom as a criminal sanction in the persecution case sukartono sukartono1 1 postgraduate program master of laws universitas negeri semarang, indonesia  sukartono187@gmail.com cited as sukartono, s. (2021). money ransom as a criminal sanction in the persecution case. journal of law and legal reform, 2(3), 377-390. https://doi.org/10.15294/jllr.v2i2.46467 submitted: january 30, 2021 revised: march 29, 2021 accepted: may 18, 2021 abstract the criminal acts of persecution committed by the people of sitimulyo village, pucakwangi district, pati regency must be sanctioned with monetary fines, with the low economic community the head of the local police station applies monetary sanctions which are considered deterrent against other punishments. this study aims to, 1) describe the criminal sanction of maltreatment with a money ransom, 2) develop knowledge within the framework of indonesian criminal law, 3) provide an understanding to the villagers in the village of sitimulyo about the punishment of ransom money for the criminal act of persecution. this research is an empirical study or it can also be called a field research that examines it money ransom sanction in sitimulyo village, pucakwangi district, pati regency. this research includes empirical research. data collection method through observation, interviews, and documentation. the author uses a qualitative deductive thinking method in analyzing this problem, namely the process of approaching from the general truth about an event or event resulting in the truth on the same event continuously with a money ransom penalty is very effective compared to national law and islamic law. keywords: money ransom; persecution; crime; criminal sanction journal of law and legal reform (2021), 2(3), pp. 377-390. doi: https://doi.org/10.15294/jllr.v2i2.46534 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46534 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 378 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction crime is an inseparable part of human life in this world. all human activities, be it political, social and economic, can be the cause of crime. so that the existence of crime does not need to be regretted, but efforts must always be sought how to handle it, such as trying to reduce the quality and quantity as low as possible according to the existing situation and conditions. therefore, crime is the result of interaction caused by the interrelation between existing phenomena and influencing each other, interaction as a phenomenon that participates in the occurrence of crime, and has a functional relationship with one another (gosita, 1983, p. 3). this maltreatment is a criminal act against members of the human body, either in the form of beatings or injuries. there are only two types of criminal offenses, namely: deliberately injuring (in the indonesian criminal code it is regulated in article 351 with a maximum sentence of 2 years and 8 months, if it results in serious injury the maximum threat is 5 years imprisonment), and injury due to wrongdoing (in the kuhp it is regulated in article 360 of the criminal code). with a maximum sentence of 5 years imprisonment) (santoso, 2016, p. 170). crime prevention policies or efforts are essentially an integral part of efforts to protect society (social welfare). therefore, it can be said that the ultimate goal or main goal of criminal politics is the protection of society to achieve social welfare (arief, 2016; azhar, 2019; prayoga, 2021; setiawan, 2017, nordyanty, 2020; gultom, 2019). the case begin on wednesday, june 27, 2018, around 22.30 wib. there has been a criminal act of pengroyokan at the stage of orgen tunggal dk. prengapus ds. sitimulyo kec. pucakwangi kab. pati which was carried out by br. adi santoso together with his colleagues to the reporter. the chronology of the incident began at 22.30 wib. the reporter and his friends were watching the art performance of dk. prengapus ds. sitimulyo kec. pucakwangi kab. pati then the reporter and his colleagues were on the right side of the stage to watch the entertainment, suddenly beaten by mr. adi santoso by using a stone tool that hit the reporter on the head, so that the reporter suffered a torn wound in the upper part of the head and bled, then the friend of br. adi santoso, amounting to approximately 15 (fifteen) people took part in conducting the processing of the informant which resulted in a swollen wound on the upper left forehead. due to this incident, the victim suffered injuries and then went to the pucakwangi ii community health center, after which the victim reported the incident to the pucakwangi police for further legal proceedings (suyoko, 2019). agus (2019) as the head of sitimulyo village revealed that the mediation was carried out at the pucakwangi police, i also attended there, the mediation was like a deliberation system and the goal of peace, because together with my http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 379 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia residents, i prioritize peace between my people. the result is a fine of rp. 45,000,000.00 (forty-five million rupiah), because of that, my collective agreement can only be that with the fine the perpetrator does not repeat his actions and gives a deterrent effect on other people from committing crimes. based on the phenomenon and the reality of the tradition of prohibiting marriage in kenteng , the authors are interested in conducting research on the belief in prohibiting marriage with the title ransom for money as a penalty for persecution. method this research is an empirical study or it can also be called a field research which examines the ransom of money as a criminal sanction for maltreatment in sitimulyo village, pucakwangi district, pati regency. in this study, the main data source used was information from the source (primary data), complemented by secondary and tertiary data. data collection was carried out in three ways, namely observation, interviews and documentation. the author uses qualitative methods by thinking deductively in analyzing this problem, namely the process of approaching from the general truth about a phenomenon or theory and generalizing that truth to a particular event or data characterized by the same phenomenon in question (nasir, 2016, p. 19). the driving factor for the ransom of money as a sanction for the crime of persecution in sitimulyo village, pucakwangi, pati in the criminal act of persecution committed by adi santoso (the perpetrator), the authors obtained various facts from the village of sitimulyo and the pucakwangi police . by using deliberation / mediation assisted by a mediator from the police. this is as said by mr. agus sulistiyo as the head of sitimulyo village. "the incident started when i (the village head) heard the report from the rt, the rt saw the incident firsthand because he was also a resident of the prengapus hamlet as well as watching dangdut entertainment too, that there was a fight between the prengapus dukuh and the pohijo hamlet, i went straight to the location. finished but according to all the residents who watched it confirmed the quarrel, then i tried to reconcile it but the victim asked for accountability in the form of a fine for treatment and the perpetrator did not want to give the money that the victim asked for and as a result this case was handled by the polsek pucakwangi police and http://creativecommons.org/licenses/by-nc-sa/4.0/ 380 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia thanks to the case police. this is done by means of kinship / deliberation at the polsek pucakwangi. " (agus, 2019) after the policeman from the pucakwangi police reconciled him through deliberation / mediation using a kinship approach system with penal mediation in the following stages: 1. the first stage: forming a forum before the meeting starts between the mediator and the parties, the mediator creates or forms a forum. after the forum was formed, a joint meeting was held. at that time, the mediator will issue a preliminary statement and take initial action, namely: a. carry out self-introductions and continue with self-introductions by the parties. in this case the mediator tries to foster confidence in himself and for the process. b. explain his position as a mediator. c. describe their roles and authorities. d. explain the ground rules regarding the process, the rules of confidentiality, and the terms of the meeting. e. answering the questions of the parties. f. if the parties agree to continue negotiations, order their commitment to follow all applicable rules (emirzon, 2001, p. 81). this is like the presentation of mr. suyoko, sh, as the head of the pucakwangi police as well as the mediator, as follows: "first, i invited the parties including the head of sitimulyo village, i introduced myself and then the parties introduced themselves, after that i explained the rules in this mediation that i am in charge here so i have to obey what i am talking about and both parties agree. the rules of the game. " (suyoko, 2019). 2. second stage: mutually collect and share information after the forum is formed and all initial preparations have been completed and all the rules of the game have been agreed upon, the mediator continues by holding a joint meeting, asking for a statement or preliminary explanation from the respective parties to the dispute. the mediator provides an opportunity for each party to speak, in this case: a. each party submits the facts and positions according to their respective versions; b. the mediator acts as an active listener, and can pose questions; c. the mediator applies the rules of appropriateness and otherwise controls the interactions of the parties. in this second stage the mediator must pay attention to all information conveyed by each party. because the information submitted is the version of each party, the mediator qualifies the facts that have been submitted, because all facts submitted by the parties are interests that are always defended by each party so that the other party agrees. in presenting facts, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 381 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia each party has different styles and versions, some are relaxed, some are tough (emotional), some are unclear in their description and so on. these conditions must be considered by the mediator. then proceed with discussion, namely responses to information submitted by each party. in the second stage, the parties enter into a bargain (negotiate) between them. at this stage, there is a possibility of debate and even chaos can occur between the disputing parties and if the mediator is not quick to control the parties, the parties can leave the room (leave the meeting room). (emirzon, 2001, 81-83) this is like the presentation of mr. suyoko, sh, as the head of the pucakwangi police as well as the mediator, as follows: "for the second stage i asked each party to explain the chronology that happened after that i told them (the perpetrator and the victim) to explain their respective wishes" (suyoko, 2019). 3. the third stage: bargaining to solve the problem even though each party has conveyed information and held deliberations, at this stage the parties are still holding on to their respective positions. in this third stage, the mediator will use a caucus (small booth), which is to hold private meetings with the parties separately. on the occasion of caucus is the mediator will conduct a question and answer to the parties in depth in order to determine what is desired by the parties, in other words the mediator to develop more information and investigate the interests of the parties and possible solutions. starting from the results of the meeting the mediator will reformulate, and then, based on the information developed at the meetings and joint meetings, the mediator rephrases the essence of the dispute. after the core or subject matter that has been identified has been addressed, the mediator works with the parties together and separately to: a. identify issues, b. briefing the parties about bargaining solutions to problems, c. changing the parties' stance from positions to interests. at this stage, the mediator provides an explanation or direction of the main problems faced by the parties. to solve the identified problems, the mediator works with the parties to: a. helping parties assess, assess, and prioritize their respective interests, b. expanding or narrowing disputes where necessary, c. creating a negotiation agenda, d. provide alternative solutions. in this condition, the roles of the disputing parties become more numerous because the parties are expected to have obtained a bright spot for resolving their conflicts. the parties can change from the position stage towards the common interest because the parties have worked together to http://creativecommons.org/licenses/by-nc-sa/4.0/ 382 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia carry out assessments, assessments with the help of a mediator (emirzon, 2001, pp. 83-84). this is like the presentation of mr. suyoko, sh, as the head of the pucakwangi police as well as the mediator, as follows: "the third stage is the negotiation stage in which the victim asks for compensation for treatment in the amount of rp. 45,000,000.00 (fortyfive million rupiah) and the perpetrator agrees. and an agreement occurs that the perpetrator will not repeat his actions again. " (suyoko, 2019). 4. the fourth stage: agreement in the fourth stage, the parties work together with the help of a mediator to evaluate options. establish trade-offs and offer packages, minimize differences and find a fair basis for shared allocations. and finally, the parties who agree make a joint decision. in the stage of determining the agreement, the mediator can also pressure the parties, find formulas to avoid embarrassment, help the parties to deal with the powergivers (emirzon, 2001, p. 85). this is like the presentation of mr. suyoko, sh, as the head of the pucakwangi police as well as the mediator, as follows: "the results of the agreement are 1. party i (sugito bin lasno [victim]) and party ii (bambang suroto bin sukardi representing adi santoso bin biyanto [perpetrator]) agree to forgive each other, 2. we party ii (two) will not recite the act. maltreatment or other actions against party i (one), 3. we both parties are able not to hold each other in vengeance either individually or in groups between residents and consider the problem to be resolved and party i (one) will not prosecute either criminal or civil and able to create harmony, 4. we as the second party (two) if in the future commit / repeat acts of persecution against party i (one), then we can be prosecuted in accordance with the applicable law . " (suyoko, 2019) from the several stages described above, basically the role of the mediator in the conflict resolution process is to diagnose disputes, identify critical issues and interests, formulate an agenda, simplify and regulate communication. in addition, the mediator helps the parties gather important information, provide options and solve problems. to know more clearly about the mediation stages (emirzon, 2001, p. 85). in the criminal code itself article 351 concerning persecution, which reads as follows: 1. maltreatment is punishable by a maximum imprisonment of two years and eight months or a maximum fine of three hundred rupiah. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 383 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. if the act results in serious injuries, the guilty is subject to a maximum imprisonment of five years. 3. if the result is death, a maximum imprisonment of seven years is imposed. 4. persecution equates to deliberately destroying health. 5. attempt to commit this crime is not punishable. whereas in article 354 of the criminal code, it reads as follows: anyone who deliberately seriously injures another person will be threatened because he has committed serious maltreatment, by a maximum imprisonment of eight years. 1) if the act results in death, the guilty is subject to a maximum imprisonment of ten years (moeljatno, 2008, p. 125). actually action adi santoso has entered into this article. if the victim (sugito) wants to settle his case through the court , then a judicial process occurs. however, the problem of persecution here has been completed at the deliberation / mediation stage so that there is no punishment in accordance with the criminal code against the perpetrator. in solving the above problems, the method or tool used is deliberation / mediation of an agreement between the two parties. the mediation that was carried out to settle the cases of the two parties was successfully carried out at the time of the mediation by the pucakwangi police . with the agreement the perpetrator ( adi santoso ) paid a fine of rp. 45,000,000.00 (fortyfive million rupiah) and will not repeat his actions (persecution) again. the real problem is that there is a criminal element but it can be resolved in mediation. this shows that criminal mediation/ penal mediation can be used as an alternative solution besides the judicial route. according to authors with the concept of mediation penal conducted pucakwangi police are correct, attended both sides, two witnesses and a joint head of the village, consultation /mediation can solve problem persecution that occurred in the sitimulyo village. however, the authors regretted the results of the mediation, even though the perpetrators agreed because there was a little pressure from the pucakwangi police, who had to pay a large fine of rp. 45,000,000.00 (forty-five million rupiah) is a little unfair if it is only for treatment and deterring the perpetrator. in article 15 point (1) letter b of law of the republic of indonesia number 2 of 2002 concerning the indonesian national police, it reads: the police have the authority to assist in settling disputes among citizens that can interfere with public order. the police have the right of discretion to mediate in criminal cases if they can be resolved by deliberation. discretionary authority is an authority exercised based on the law based on conviction considerations and emphasizes moral considerations rather than legal considerations from legal provisions, but discretion is still exercised within the legal framework. therefore, the practice of http://creativecommons.org/licenses/by-nc-sa/4.0/ 384 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia policing in the public interest can be seen as an effort to protect it so that it can take place (arief, 2008, p. 4). review of islamic law on the crime of persecution with ransom money penalty persecution is divided into two types, the first is deliberate persecution ( al-jarh al-'amd ) and accidental persecution (al-jarh al-khata' ). the understanding is as follows: deliberate persecution (al-jarh al-'amd ) is any act in which the perpetrator deliberately commits an act with the intention of breaking the law (rokhmadi, 2015, p. 145). whereas accidental persecution (al-jarh alkhata') is an act in which the perpetrator deliberately commits an act, but there is no intention of breaking the law (rokhmadi, 2015, p. 149). based on the above definition, it is categorized intentionally if the perpetrator deliberately commits an act with the intention of breaking the law. there is an accidental result of an error, namely the perpetrator deliberately commits an act, but there is no intention to violate the law (mardani, 2019, pp. 99-100) jarimah injury or persecution is explicitly described by allah swt. in the following paragraphs: and we prescribed to them in it that (torah) life for a life, and eye for an eye, and nose for a nose, and ear for an ear and tooth for a tooth, and reprisal in wounds. but he who forgives it (remits the retaliation); it shall be expiation for him (for his sins). and whoever does not judge by what allah has sent down, such are the wrongdoers. (surah al-maidah 5: 45). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 385 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and if you punish [an enemy, o believers], punish with an equivalent of that with which you were harmed. but if you are patient – it is better for those who are patient (surah an-nahl 16: 126). the criminal act of persecution is included in the qisas and diyat fingers in which there are provisions of qisas as the main punishment, if qisas cannot be carried out then the punishment is diyat and forgiveness. this is based on the word of allah swt in the letter albaqarah verse (2): 178: o you who believe, qisās has been prescribed for you in the case of murdered people: the freeman (will be killed) for the freeman, the slave for the slave, and the female for the female. however, if one is somewhat forgiven by his brother, the recourse (of the latter) is to pursue the former (for blood money) with fairness, and the obligation (of the former) is to pay (it) to the latter in a nice way. that is a relief from your lord, and a mercy. so, whoever transgresses after all that will have a painful punishment (surah al-baqarah 2: 178). in this verse islam has severely reduced the practice of retaliation. cruel revenge as was practiced in the era of jahiliya as well as that practiced in the present by modern civilized societies with slight modification of form. simultaneously with retaliation is established with a period of strict justice, but, provides an opportunity to give a clear profession of compassion and forgiveness. the brother who was killed can provide leniency based on consideration of reasonable charges and compensation as a token of gratitude (from the convicted party) (rahman, 1996, pp. 28-29). according to the author, if someone commits persecution intentionally or unintentionally without forgiveness and the rights of qisas are not fulfilled, then the substitute penalty is diyat. because the diyat as a substitute for punishment must reflect a diyat that is fair to both the perpetrator and the victim, if the torture is only minor injuries, then the diyat is also light, but if the torture causes serious injuries then the diyat must also be severe, even though the perpetrator http://creativecommons.org/licenses/by-nc-sa/4.0/ 386 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia has committed an offense. but the perpetrator also has the right to defend himself. diyat is also explained in another verse as follows: and never is it for a believer to kill a believer except by mistake. and whoever kills a believer by mistake – then the freeing of a believing slave and a compensation payment presented to the deceased’s family [is required] unless they give [up their right as] charity. but if the deceased was from a people at war with you and he was a believer – then [only] the freeing of a believing slave; and if he was from a people with whom you have a treaty – then a compensation payment presented to his family and the freeing of a believing slave. and whoever does not find [one or cannot afford to buy one] – then [instead], a fast for two months consecutively, [seeking] acceptance of repentance from allah. and allah is ever knowing and wise. (surat al-nisa' 4: 92). according to the majority of scholars, hanafiyyah, malikiyyah, part shafi'iyyah, and part of ahmad's narration where this opinion is considered to be the most appropriate that the verses regarding qisas against limbs but applies to muslims. meanwhile, according to scholars of the asy'ariyah circles, this does not apply to muslims (syaru 'man qablana). according to al-zuhaili, this opinion was supported by al-ghazali, al-amidi, al-razi, and ibn hazm. meanwhile, ibn qudamah and ibn burhan were silent (tawaqquf) until there was evidence that confirmed it. if qisas is not carried out, it is replaced by two substitute punishments, namely diyat and ta'zir (mardani, 2019, p. 101). like the punishment for maltreatment, diyat is a substitute punishment when he occupies a qisas position. it is a punishment for a criminal act of deliberate maltreatment. diyat is the main punishment if the crime is intentional, not purely intentional (audah, 2008, p. 66). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 387 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the level of diyat persecution was accidentally the same as the diyat level of deliberate persecution. it's just that the diyat difference between intentional and accidental persecution is as follows: a. the person who bears the diyat: in deliberate persecution the perpetrator is responsible for the perpetrator while in the accidental persecution is' aqilah (family). b. the characteristics of the camel: diyat in persecution must not be divided by five. c. diyat in persecution accidentally ghairu mughalazzah (not weighed down). d. time of diyat payment : accidental diyat persecution must be paid off within three years if he / she is diyat sempuna (mardani, 2019, pp. 101-102). according to the authors' opinion, that the mediator in melakuakan mediation to sentence the offender must meme nting k 's victims and concerned n perpetrators too, should be considered balanced, not to be looked lopsided though the perpetrators had committed the crime should be considered reason was committing a crime, thereby achieving a sense of community justice. in cases of non-fatal or injurious maltreatment which cannot be subject to qisas punishment and cannot also be measured by the prescribed diyat, because it only causes a small injury to the head and appropriate compensation is prioritized. in a criminal act of maltreatment, where the victim asked for compensation in the amount of rp. 45,000,000.00 (forty-five million rupiahs) that greatly exceeds what is used for medical treatment of only rp. 200,000.00 (two hundred thousand rupiah. during the deliberation / mediation process at the pucakwangi police station, the perpetrator actually did not want to agree with the victim's proposal but the pressure and threat of imprisonment from the police frightened the perpetrator and finally agreed: "from the start i was suspicious of the police who handled my case, because my friends said the police had already given the victim rp. 20,000,000.00 (twenty million rupiah) so that the police will take care of my case with a demand for rp. 45,000,000.00 (forty million rupiah), on the grounds of mediation / deliberation but during the mediation / deliberation i refused, i only wanted to pay compensation in the amount of rp. 20,000,000.00 (twenty million rupiah) as a dozen sanctions against me but the police here insisted on ordering me to pay a fine of rp. 45,000,000.00 (forty-five million rupiah). i had no other choice at that time because the police threatened to imprison me, i was just going to be jailed at that time, but my parents didn't want me to go to jail, finally my parents agreed to the victim's request and the police. " (santoso, 2019). meanwhile, according to mr. agus, who is one of the religious leaders in situmulyo village, has the following opinion: http://creativecommons.org/licenses/by-nc-sa/4.0/ 388 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia "according to a religious viewpoint, a fine of that size is not justified, because it includes light maltreatment so it cannot be punished by qisas or diyat, it can be punished by ta'zir where the punishment is determined by the authorities in islamic law. mas santoso, for me, is very beneficial for the victim, there is no sense of justice in the community itself, in previous years there were no punishments of that size, only being forgiven and promising not to repeat or just being asked to pay compensation for medical treatment, because in the community has a very high social spirit, so the existence of this law makes the families of mas santoso and mas sugito become disharmonious, because of an insufficient application of punishment in the community here. yes, i hope that in the future there will be no such thing as violence. " (agus, 2019). criminal occurred in the village sitimulyo, district pucakwangi, pati regency is the dispute case that led to the persecution. the problems that adi santoso committed to sugito led to persecution. this refers to facts in the field. in an effort to resolve the case above, deliberation /mediation was chosen in the presence of the village head, witnesses, and the families of the victims. the mediation that is carried out is the same as the deliberation recommended by qs. al-hujarat (49): 10. as follows: the believers are but brothers, so make settlement between your brothers. and fear allah that you may receive mercy (surah al-hujarat 49: 10). however, in a different context, because persecution is the right of allah , actually mediation is not allowed in the view of islamic law. because our country is not a country i slam, so we have not implemented law i slam as a whole. the mediation used uses the kinship system, even though both are muslims, the perpetrators of this persecution are not punished according to islamic law but are punished with the agreement of both parties. the peace that is implemented in sitimulyo village, pucakwangi subdistrict, pati regency, prioritizes resolving disputes through mediation/kinship. in this way the perpetrators and victims were met and mediated by the pucakwangi police. this mediation process emphasizes the role of the disputing parties based on good ethics in the mediation process so that a dispute resolution is reached which is the result of the agreement of the disputing parties. the two parties agreed to peace with the way the perpetrator paid for treatment as well as http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 389 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia sanctions with a fine, if in islamic law it is known as diya t. that is, the victim forgives the perpetrator but the perpetrator has to pay the diyat to the victim. conclusion this study concluded that settlement of the criminal act of persecution by ransom money in the village of sitimulyo, district pucakwangi, pati regency is using mediation or deliberation way kinship. using a mediator from the police from pucakwangi district who was attended by both the perpetrator and the victim, the head of sitimulyo village, and the two witnesses. and the mediation or deliberation was successful and resulted in a peace agreement between the two parties and the perpetrator would not repeat his actions again and the perpetrator was given a fine in the form of rp. 45,000,000.00 (forty-five million rupiah) to the victim for medical expenses and as a sanction so that the perpetrator does not repeat his actions again. furthermore, settlement of the criminal act of persecution by ransom money according to islamic law is by means of qisas , if the victim forgives the perpetrator then the sentence is changed to diyat . in this case the victim forgives the perpetrator, so the perpetrator must pay the diyat to the victim. meanwhile, the process according to positive law is by mediation before going to trial, in this case the two parties agreed to resolve the problem through mediation and the mediation was successful to reconcile the two parties. references arief, b. n. (2008). out-of-court case settlement penal mediation. semarang: pustaka magister. arief, b. n. (2016). interest in criminal law policy. jakarta: prena media group. audah, a. a. (2008). encyclopedia of islamic criminal law. bogor: pt kharisma ilmu. azhar, h. (2019). persekusi dalam tinjauan fiqh jinayah. al-'adalah: jurnal syariah dan hukum islam, 4(1), 14-29. emirzon, j. (2001). alternative dispute resolution outside the negotiation, mediation, consultation, & arbitrate court. jakarta: gramedia pustaka utama. gosita, a. (1983). the problem of crime victims. jakarta: cv akademika pressindo. gultom, a. f. (2019). perlindungan hukum terhadap korban persekusi. thesis. yogyakarta: universitas atma jaya yogyakarta. mardani, m. (2019). islamic criminal law. jakarta: kencana. moeljatno, m. (2008). new edition of the criminal code (kuhp). jakarta: pt bumi aksara. http://creativecommons.org/licenses/by-nc-sa/4.0/ 390 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia nazir, m. (1988). research methods. jakarta: ghalia indonesia. nordyanty, c. y. (2020). sanksi tindak pidana persekusi dalam kuhp pasal 351 perspektif hukum pidana islam. thesis. bandung: uin sunan gunung djati. prayoga, c. (2021). upaya pencegahan tindakan persekusi (persecution) dalam perspektif penanggulangan kejahatan. petitum, 1(1), 1-14. rahman, a. (1996). hudud and inheritance (syari'ah ii). jakarta: pt rajagrafindo persada. rokhmadi, r. (2015). islamic criminal law. semarang: cv karya abadi jaya. setiawan, i. (2017). kajian yuridis terhadap persekusi. jurnal ilmiah galuh justisi, 5(2), 291-299. personal interview interview, adi santoso, perpetrator of the crime of persecution, 30, august 2019 interview, pak agus sulistiyo , head of sitimulyo village , 30, august 2019 interview, mr. agus, as the religious leader of sitimulyo village, 12, december 2019 interview, pak suyoko, sh, head of pucakwangi police, 30, august 2019 http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23ca1abb20fd • 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: 7fbf23ccdbe320cd • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(2) 2020 193 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia editorial legal reform discourse in indonesia and global context: how does the law respond to crime ridwan arifin1 1 universitas negeri semarang, managing editor journal of law and legal reform  ridwan.arifin@mail.unnes.ac.id law is considered as a rule that applies in society, both traditional and modern societies. naturally the calm and serenity of life is achieved if the community provides control, social supervision, both written and unwritten. realistically these elements of social oversight will experience changes and developments both in evolution and revolution in accordance with the development of society. implementation of regulations is a manifestation of the desire of the rule of law so that the function of social control and social control can be embodied in society. therefore, both the law and society must adjust to the development that occurs, so that harmony occurs between the two. this is as stated by rosana (2013) and utari & arifin (2019). but the fact is, the development of law is not as fast as the development of society. in fact, the types of crime are growing, also various problems that arise in the community continue to develop. however, much we know a lot about the factors of crime that exist in society, but what is certain is that crime is a form of human behavior. therefore, crime has been accepted as a fact, both in the simplest (primitive) society and in modern society, which harms society (rahardjo, 2002). the more advanced and modern life of society, the more advanced and modern types and modus operandi of crimes that occur in society. the inability of the law to respond to the rapid development of society raises its own problems. so that in many cases, legal uncertainty arises as a result of rigid laws. for example, a few years ago, indonesia stuttered a little in the face of the rapid development of online transportation. on the one hand, people need various facilities and this is obtained from the phenomenon of online transportation, but on the other hand, this type of online transportation does not yet have a clear legal umbrella. therefore, there are many conflicts and friction between users and providers of journal of law and legal reform (2020), 1(2), pp. 193-196. doi: https://doi.org/10.15294/jllr.v1i2.37057. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 194 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conventional transportation services with users and providers of online transportation services. in fact, the law and the community are always side by side, ubi societas ibi ius, where there is a community there is a law. some previous researches also emphasized that law and legal reform in various countries—including indonesia—influenced by many factors (rodiyah, laskarwati, masyhar, & waspiah, 2019; suwandoko & rodiyah, 2018; muhtada, 2017a, 2017b; arifin, 2017). the second edition of the journal of law and legal reform presents writings from various perspectives within the framework of legal reform. the articles that are present to the reader in this edition are selected papers that have gone through a double-blind peer-reviewed process by expert reviewers. the articles discuss various aspects of legal reform in indonesia and in the global context. anang wahyu kurnianto and ridwanto ardi kusumo, provided special notes on the mechanism of inter-time elections (recall) in the election of regional heads in the context of democracy in indonesia and reform of the electoral law. meanwhile, idul hanzah alid and lailasari ekaningsih analyzed the government's efforts to protect intellectual property rights (trade secrets) in indonesia. this paper takes one of the companies in central java and concludes that a written agreement is needed as a clear legal basis for protecting trade secrets (kurnianto & kusumo, 2020; alid & ekaningsih. 2020) another article was written by sinta oktavina regarding government policies in engineering population growth through family planning. novi anggraini putri highlights the child sexual abuse cases, and she analyzes case related to military member (oktavina, 2020; putri, 2020). and various other writings from other fields of law, such as criminal law, child protection, and state administration. in this second edition, we present thirteen writings (research and review articles) and one current commentary. we thank all the authors, contributors, and also reviewers who were involved directly or indirectly in the preparation and publication of this second edition. in addition, our gratitude also goes to the indonesian legal journal management association (apjhi) for all its support, and the law masters study program at the faculty of law, semarang state university. i personally thank dr. rodiyah spd sh msi (dean of the faculty of law), dr. indah sri utari sh mhum (chair of the master of laws program), and the entire team of the journal of law and legal reform. this year, the journal of law and legal reform continues to improve the quality of journal content and online journal page display with several national and international indexations. starting this year, we have explored cooperation with several agencies in improving the quality of journals, among the general election supervision board, several law http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(2) 2020 195 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia firms, government agencies, and several non-governmental organizations in participating in providing input and suggestions for the future development of our journal. we also provide wide opportunities for anyone who has an interest in our journal. we hope that, through the publication of this second edition of the journal, it will be able to contribute to legal scholarship and discourse on the development of law in indonesia in a global context. references alid, i. h., & ekaningsih, l. (2020). how government provide legal protection for trade secrets?. journal of law and legal reform, 1(2), 215-224. https://doi.org/10.15294/jllr.v1i2.35420 arifin, r. (2017). democracy on indonesian legal reform: how can people participate on laws and regulations establishment process. jils (journal of indonesian legal studies), 2(02), 155-158. https://doi.org/10.15294/jils.v2i02.19439 kurnianto, a. w., & kusumo, r. a. (2020). recall on village heads election: an election law reform. journal of law and legal reform, 1(2), 201-214. https://doi.org/10.15294/jllr.v1i2.35406 muhtada, d. (2017a). the prospects for public management reform in indonesia. jils (journal of indonesian legal studies), 2(02), 145-154. https://doi.org/10.15294/jils.v2i02.19437 muhtada, d. (2017b). legal reform in indonesia. jils (journal of indonesian legal studies), 2(02), 83-84. https://doi.org/10.15294/jils.v2i02.19438 oktavina, s. (2020). population growth control policy and its effect to law enforcement. journal of law and legal reform, 1(2), 225-240. https://doi.org/10.15294/jllr.v1i2.35460 putri, n. a. (2020). judgment considerations regarding decisions about child sex abuse crime conducted by military member. journal of law and legal reform, 1(2), 241-258. https://doi.org/10.15294/jllr.v1i2.35421 rodiyah, r., laskarwati, b., masyhar, a., & waspiah, w. (2019). how should student behave? a legal ethics and policy towards nationalism and antiradicalism characters. jils (journal of indonesian legal studies), 4(2). https://doi.org/10.15294/jils.v4i2.34343 rosana, e. (2013). hukum dan perkembangan masyarakat. jurnal teropong aspirasi politik islam, 9(1), 99-118. doi: https://doi.org/10.24042/tps.v9i1.1578 suwandoko, s., & rodiyah, r. (2018). the implementation of bureaucratic reform pillars in increasing taxpayer compliance at semarang tax service office. jils (journal of indonesian legal studies), 3(01), 5-28. https://doi.org/10.15294/jils.v3i01.23244 utari, i. s., & arifin, r. (2019). law enforcement and legal reform in indonesia and global context: how the law responds to community development?. journal of law and legal reform, 1(1), 1-4. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.24042/tps.v9i1.1578 196 journal of law & legal reform volume 1(2) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote most of the time, when one analyzes the role of the state in our society, either one focuses attention on institutions—armies, civil service, bureaucracy, and so on—and on the kind of people who rule them, or one analyzes the theories or the ideologies which were developed in order to justify the existence of the state. what i am looking for, on the contrary, are the techniques, the practices, which give a concrete form to [the] . . . relationship between the social entity and the individual. michel foucault, “the political technology of individuals” (1981) http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cb4f1da637 • 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: 7fbf23ce1e1b20cd • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 3(2) 2022 185 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 2, april 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: february 7, 2021 revised: march 12, 2022 accepted: april 25, 2022 available online since: april 30, 2022 how to cite: khasanudin, khasanudin, and budi santoso. “analysis of financial technology product contracts peer to peer lending syariah platform ammana.id”. journal of law and legal reform 3, no. 2 (2022): 185-214. https://doi.org/10.15294/jllr.v3i2.54623. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article analysis of financial technology product contracts peer to peer lending syariah platform ammana.id khasanudin khasanudin1 , budi santoso2 1,2 faculty of law, universitas diponegoro, semarang, indonesia  khasan.almuza@gmail.com abstract ammana.id in obtaining funds from lenders uses a representative contract with wages (wakalah bil ujrah) in transactions between them and the lender. that way, ammana.id is considered to have accepted a dependent or representative from the borrower, so they are entitled to profit (ujrah). meanwhile, between lenders and sharia cooperatives, a profit-sharing http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i2.54623 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 mailto:18410647@students.uii.ac.id https://orcid.org/0000-0001-6847-2846 https://orcid.org/0000-0001-6847-2846 186 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia contract (musharaka) is established. ammana.id cooperates with bmt, kspps, bprs, sharia venture institutions as microfinance institutions that distribute loan funds. the law of wakalah with the presence and absence of wages is valid, because the prophet muhammad saw once sent his employees to collect zakat and give them wages. the next contract is the musyarakah contract which is between ammana.id and the fund distributor. with a musharaka contract, the owner of the capital and the distributor of the funds both deposit capital in nominal terms according to the ability and agreement of the parties in the musharaka. this study formulates the problem (1) what is the form of the ammana.id platform p2p lending sharia product contract? and (2) how is the ammana.id platform sharia p2p lending product law in terms of islamic law? ammana.id is present as a sharia p2p (peer to peer) lending company with a non-direct funding system, where msme actors are required to become part/members of micro sharia finance partners registered with ammana.id which function as a curation institution for msme business feasibility. which will be co-funded with lenders/funders through a crowdfunding/cofunding scheme through fintech applications keywords: financial technology, musyarakar, p2p lending syariah, wakala, peer to peer lending introduction the development of peer-to-peer (p2p) lending financial technology (hereinafter referred to as fintech p2p lending) in development in indonesia has increased. this is evidenced by the increasing number of p2p lending companies in indonesia. in the fintech lending statistics report for the march 2019 period, the accumulated loan amount reached rp. 33,200,470,348,514, up 46.48% compared to last year's accumulation of rp. 22,666,069,500,288. despite experiencing a decrease in the percentage in the 90-day success rate (tkb90) -1.19%, the increase in the number of borrower http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 187 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia account transactions in march 2019 increased by 58.57% compared to the number of borrower account transactions at the end of 2018 or 22,725,309 borrower accounts.1 companies that are engaged in fintech and run sharia p2p lending services are sharia financial institutions because, in their activities, both collection and distribution of funds provide and impose rewards or the basis of sharia principles, namely buying and selling and profit-sharing, by kasmir (2012) description of islamic financial institutions. so related to the collection and financing carried out by the company following the provisions of sharia.2 to date, the financial services authority (ojk) has recorded that 106 p2p lending fintech companies have been registered. even so, there are 738 illegal or unregistered fintechs with the ojk, including 211 websites and 527 applications on android that are blocked by the ministry of communication and information of the republic of indonesia (kominfo).3 with the increasing positive trend of fintech p2p lending in indonesia, it is directly proportional to the increase in the number of fintech sharia in indonesia. 37 sharia fintech companies are members of the indonesian sharia fintech association (afsi). one of them is ammana, a sharia-based p2p lending fintech startup. with his vision of "making halal a part of the lifestyle for everyone." see progress in tech p2p lending, in particular, sharia fintech p2p lending in indonesia, which is very high, has aroused the author's interest to research one of the sharia fintech companies, namely ammana. the ammana product is a sharia-only p2p lending that brings together sme owners who need business loans with borrowers. the purpose of writing this article is to find out whether the form of sharia p2p lending products 1 “statistik fintech lending periode maret 2019,” accessed february 20, 2022, https://www.ojk.go.id/id/kanal/iknb/data-dan-statistik/fintech/pages/statistikfintech-lending-periode-maret-2019.aspx. 2 kasmir, bank & lembaga keuangan lainnya (jakarta: pt raja grafindo persada, 2012). 3 “penyelenggara fintech terdaftar di ojk per 1 februari 2019,” accessed february 20, 2022, https://www.ojk.go.id/id/berita-dan-kegiatan/publikasi/pages/penyelenggarafintech-terdaftar-di-ojk-per-februari-2019.aspx. http://creativecommons.org/licenses/by-nc-sa/4.0/ 188 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia is by the sharia concept by examining the substance and mechanism of sharia p2p lending products. and the potential risks that arise in sharia p2p lending products it is hoped that this article will help the community, especially muslims in indonesia regarding the spiritual rights of sharia p2p lending products from ammana and know more about the impact on better management of investment in sharia p2p lending. method the research method used in this study is a qualitative method with the type of research being document study. qualitative research is researching whose data is expressed in verbal form and analyzed without using statistical techniques.4 qualitative research aims to understand a social phenomenon where the research will emphasize the description of the phenomenon under study by describing it. on several variables so that it is hoped that there will be a clearer and deeper understanding and further discover new knowledge. document/text study is a study that focuses on the interpretation of written material based on context.5 this research is based on secondary data, namely where the data obtained in this study are not directly obtained by the research maker.6 furthermore, the author performs technical content analysis on everything from the data. content analysis is an analytical method that is made by concluding based on an objective and systematic analysis of the special characteristics of an object.7 this research takes data directly from the website of the sharia fintech company, namely pt ammana fintech syariah (ammana.id) 4 sangaji mamang and sopiah, metodologi penelitian : pendekatan praktis dalam penelitian (yogyakarta: penerbit andi, 2010). 5 mudjia rahardjo, “jenis dan metode penelitian kualitatif,” june 1, 2010, https://www.uin-malang.ac.id/r/100601/jenis-dan-metode-penelitian-kualitatif.html. 6 purwanto, metode penelitian kuantitatif. (yogyakarta: pustaka pelajar, 2008). 7 or holsti and addison-wesley, “content analysis for the social sciences and humanities,” ci.nii.ac.jp, accessed february 20, 2022, https://ci.nii.ac.jp/naid/10007743499/. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 189 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia results & discussion i. contract construction in amman.id p2p lending sharia products ammana was the first pioneer in sharia fintech in indonesia. with the existence of ojk regulation number 77/pojk.01/2016 containing special rules regarding p2p lending, lutfi adhiansyah has been excited to establish ammana since july 2017 with supriyono soekarno and randy bimantoro. fintech companies raise funds by inviting investors or lenders to work together in partnership (joint financing) to invest through this company. this is part of crowdfunding activities, which are carried out by fintech companies in indonesia. 8 by collecting funds from other parties, these financial institutions can channel them through financing either by executing or channeling patterns. the executing pattern is the distribution of msme loans or financing to msme debtors carried out by certain financial institutions and the channeling pattern is the distribution of msme loans or financing to msme debtors through certain financial institutions (bi, 2013). furthermore, dapta (2012), although explaining in the linked program, the executing and channeling pattern of sharia financing through partner institutions using sharia contracts only acts as an agent/guardian and is entitled to receive ujrah/fees.9 8 wijayanti t, “pelaksanaan pemberian kredit berbasis teknologi informasi oleh fintech kepada pelaku ukm.” (universitas muhammadiyah surakarta, 2018), http://eprints.ums.ac.id/66263/16/naskah publikasi rev.pdf. 9 febri antika sonya harum dapta, “perbedaan pola channeling dan executing pada pembiayaan linkage program di bank syariah mandiri cabang salatiga,” muqtasid: jurnal ekonomi dan perbankan syariah 3, no. 2 (2012): 251, https://doi.org/10.18326/muqtasid.v3i2.251-276. http://creativecommons.org/licenses/by-nc-sa/4.0/ 190 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia amanah in getting funds from lenders uses representative contracts with wages (wakalah bil ujrah) in transactions between them and the lender. in this way, ammana is considered to have accepted a dependent or representative from the borrower, so that they are entitled to benefit (ujrah). meanwhile, between lenders and sharia cooperatives, a profitsharing contract (musharaka) is established. ammana cooperates with bmt, kspps, bprs, sharia venture institutions as microfinance institutions that distribute loan funds. akad or al-'aqad is an engagement, agreement, and consensus. the ijab (statement of making a bond) and qabul (statement of acceptance of the bond) are by the will of the shari'a which affects the object of the engagement.10 this means that in the contract each party is bound to carry out their respective obligations that have been agreed upon in advance. so, when one or both parties bound in the contract cannot fulfill their obligations, then one or both parties accept the sanctions that have been agreed upon in the contract.11 according to hashbi ash-shiddieqy, wakalah is a contract of transfer of power in which a person appoints another person as his successor in acting.12 the law of wakalah with the presence and absence of wages is valid because the prophet muhammad saw once sent his employees to collect zakat and give them wages.13 wakalah with wages, if it has been agreed, the contract becomes customary and binding so that the person giving the representative is the same as the paid person, meaning that he must carry out what has been represented to him. therefore, the representative is entitled to receive wages as soon as possible once the wakalah is completed. 10 muhammad, model-model akad pembiayaan di bank syariah (yogyakarta: uii press yogyakarta, 2009). 11 muhammad, manajemen bank syariah (yogyakarta: unit penerbit dan pencetakan sekolah tinggi ilmu manajemen ykpn, 2011). 12 indah nuhyatia, “sekolah tinggi agama islam darul ulum banyuwangi,” jurnal ekonomi dan hukum islam 3, no. 2 (2013): 94–116. 13 wahbah az-zuhaili and abdul hayyie al-kattani, fiqh islwa wa adilatuh (jakarta: gema insani, 2011). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 191 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the second contract is the contractmusharakahwhere between the ammana and the channeling of funds in this case bmt, kspps, bprs, sharia venture institutions. with a musharaka contract, the owner of the capital and the distributor of the funds both deposit capital in nominal terms according to the ability and agreement of the parties in the musharaka. ii. wakalah bil ujrah contract in ammana.id wakalah etymologically is protection, guarantee, dependent, giving power. and also the wakalah contract can be interpreted as the delegation of power by a person as the first party to another person as the second party in matters being represented (in this case the second party) only carries out something to the extent of the power or authority granted by the first party, but if that power has been carried out as required, then all risks and responsibilities for carrying out the order are fully borne by the first party or the authorizing party.14 a. definition and scope of wakalah wakalah it can also be interpreted as protection (al-hifzh), sufficiency (al-kifayah), dependents (al-dhamah), or delegation (al-tafwidh), which is also interpreted as giving power or representing. there are also other meanings of wakalah, namely: 1. wakalah or wikalah which means submission, delegation, or giving a mandate. 2. wakalahis the delegation of power by a person as the first party to another as the second party in matters being represented (in this case 14 abdul wahab ibrahim abu sulaiman and aidil novia, banking cards syariah : kartu kredit dan debit dalam perspektif fiqih (jakarta: raja grafindo persada, 2006). http://creativecommons.org/licenses/by-nc-sa/4.0/ 192 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the second party) only carries out something to the extent of the power or authority granted by the first party, but if the power has been exercised as required, then all risks and responsibilities for carrying out the order will be fully borne by the first party or the authorizing party. another understanding of wakalah comes from wazan wakalayakuli-waklan which means to hand over or represent affairs while wakalah is the work of representatives.15 al-wakalah according to the terms of the scholars defined, namely, among others: 1. according to the syafi'ah scholars, wakalah is an expression that implies the delegation of something by someone to another person so that the other person performs an activity that has been authorized on behalf of the person giving the power of attorney. 2. according to malikiyah scholars, wakalah is the act of someone representing himself to another person to carry out activities that are his right, which activity is not associated with the granting of power of attorney after the power of attorney dies because if the activity is tied up after the power of attorney dies, it is in the form of a will. 3. according to hanafiyah scholars, wakalah is someone who occupies another person's self in management. 4. according to hambali scholars, wakalah is a request for a person's replacement in which there is a substitute for god's rights and human rights. 5. according to the classical fiqh scholar al-dhimyati, wakalah is someone who leaves his affairs to others in which there is a replacement. 6. according to imam taqy, wakalah is someone who gives up his property to be managed by someone else during his life. 15 tim kashiko, kamus lengkap : arab indonesia (surabaya: kashiko, 2000). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 193 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 7. according to hashbi ash shiddieqy, wakalah is a contract of transfer of power, in which a person appoints another person as his successor in acting. 8. according to sayyid sabiq, wakalah is the delegation of power by one person to another in matters that may be represented. from the above definition, it can be concluded that what is meant by wakalah is the submission of someone to another person to do something where the representative is valid as long as the representative is still alive.16 wisdom is prescribed, wakalah is a duty as long as it is the responsibility of a person's affairs who sometimes cannot carry on the task because of the old age that arises in the giver of the power of attorney with other causes and matters or illness so that it is unavoidable that he is unable to do so. act to perfect this responsibility, he is forced to represent himself for his benefit and goodness. the law of wakalah is in the syara', it must be based on the qur'an and sunnah. b. type of wakalah 1. al-wakalah al-mutlaqah, that is to represent absolutely, without time limit and for all matters. in positive law, it is often known as broad power of attorney, which is usually used to represent all the needs of the power giver and usually only for administrative actions. 2. al-wakalah al-muqayyadah, namely the appointment of representatives to act on behalf of certain affairs. in positive law, this is known as a special power of attorney and is usually only for one legal action. this special power is usually intended for certain legal actions related to ownership of an item, making peace, or other actions that can only be carried out by the owner of the item. 3. al-wakalah al-amamah, namely the representation that is wider than al-muqayyadah but simpler than al-mutlaqah. usually, this power is for the day-to-day actions of the administrator. in the practice of 16 hendi suhendi, fiqh muamalah, 9th ed. (jakarta: rajawali press, 2014). http://creativecommons.org/licenses/by-nc-sa/4.0/ 194 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia islamic banking, wakalah is often used as a complement to the transaction of a contract or as a bridge over the limitations or obstacles of the implementation of a contract.17 c. legal basis of wakalah bil ujrah contract 1. al-qur'an, a) qs. al-maidah (5):1, "o you who believe, fulfill these contracts. cattle are forbidden to you, except for those that will be read to you (that is) by not preventing hunting while we are doing things. verily, allah sets the laws according to his will". b) qs. al-hasyr (59): 18, "o you who believe, fear allah and let every soul pay attention to what he has prepared for tomorrow and fear allah, knowing what you do." c) qs. yunus (12): 55, "make me a treasurer (egypt). verily, i am an intelligent and experienced person." d) surah an-nisa (4): 58, "indeed, allah commands you to convey the message to those who are entitled to receive it and when you determine the law among humans, do it fairly. verily, allah has taught you the best. verily, allah is all-hearing, all-seeing." e) qs. al-maidah (5):2, "cooperate with you in matters of righteousness and piety, and do not cooperate in matters that are sinful and that can cause enmity" 2. hadith it was narrated from busr bin said'id that ibn sa'diy al-maliki said, umar hired me to take alms (zakat). after lassi and after i gave zakat to him, umar ordered that i be rewarded (fee). i said i work only because of allah. umar replied, take what you give, i used to work like you at the time of the apostle, then he rewarded me, i also said what you said. then 17 irma devita. purnamasari and suswinarno, akad syariah (bandung: pt mizan pustaka, 2011). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 195 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the messenger of allah said to me, "when you are given something without asking for food, take it and give charity. d. pillars and terms of wakalah to achieve a valid contract, the contract must meet the pillars and conditions of the contract itself. likewise, with this wakalah contract. the pillars and conditions for wakalah are as follows:18 1. the person who represents, the condition is that he is the owner of the goods or under his control and can act on the property, otherwise, the wakalah is void. small children who can distinguish between good and bad may represent actions that are beneficial to the mahdhah, such as representatives to receive grants, alms, and wills. but if it is for an act that is dharar mahdhah, such as talaq, then the act is void. 2. people who represent, the conditions are mature and reasonable. according to hanafiyah, a child who can distinguish between good and bad is legitimate to be a representative. 3. something that is represented, the condition is that something is known. apart from that, you can also accept replacements. the point is that it can be delegated to someone else to do it. 4. shighat, namely lafadz represents. shighat is pronounced by the representative as a symbol of his pleasure to represent, and the representative accepts it. based on the fatwa of the national sharia council number 10/dsnmui/iv/2000, it is stipulated that the implementation of wakalah must fulfill the following conditions:19 1. requirements for a representative (representative) a) the legal owner can act on something that is represented. 18 suhendi, fiqh muamalah. 19 purnamasari and suswinarno, akad syariah. http://creativecommons.org/licenses/by-nc-sa/4.0/ 196 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b) mumayyiz people or children (can distinguish between right and wrong things) within certain limits, namely in things that are beneficial to them, such as representing to receive alms, and so on. 2. representative (representative) requirements a) able to act in the eyes of the law. b) can carry out the tasks assigned to him. c) a representative is a person who is given a mandate. 3. things that can be represented using the wakalah principle are, among others: d) a thing (certain legal action) that is known by the person who represents it. so, in giving the power of attorney, the recipient of the power of attorney must understand the intent or legal action authorized by the power of attorney. e) does not conflict with islamic law. the granting of such power may not be for a purpose that is contrary to islamic law. for example, the power to carry out a false transaction (evil). f) can be represented according to islamic law. iii. electronic contract in ammana.id electronic contract or electronic contract according to uu ite no.ii/2008 article 18 is an electronic transaction that is poured into an electronic contract that binds the parties. this electronic contract arises when there is acceptance by the financier of the offer of the recipient of financing through the provider's platform. the electronic contract listed in the form of a standard contract is an agreement determined by one party, in this case, the organizer, which includes several standard clauses regarding the content of the contract such as the type of contract, the form of the contract, the method of making the contract and other clauses deemed necessary to http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 197 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia be contained. mui fatwa no.117/dsn-mui/ii/2018 regarding information technology-based financing services based on sharia principles.20 the stages of the emergence of a contract agreement for a transaction at pt. ammana fintek syariah are based on syariah principles which are mentioned several mechanisms in community-based financing services before the contract agreement of a transaction appears, namely as follows: 1) recipients of financing who have been registered as members of msmes or sharia financial institutions which then cooperate with pt. ammana fintek syariah. 2) recipients of financing who need financing then apply for financing to pt. ammana fintek syariah. 3) after the financing application, pt. ammana fintek syariah. then offer it to potential providers or users of financing by the required capital needs. 4) if the financier has approved the offer, a wakalah bi al-ujrah agreement will be made between the financier and pt. ammana fintek syariah which will then provide financing to the financing recipient. in this case the muwakkil is the financier and the representative is pt. ammana fintek syariah. 5) pt. ammana fintek syariah. as a representative of the financier, will then enter into a contract with the partner receiving the financing by the agreed contract (with sale and purchase contracts, ijarah, musharaka, mudharabah, and other contracts by sharia principles). 6) after the contract occurs, the recipient of the financing will pay the principal and return in the form of expected margin/profit, ujrah/wages, or profit-sharing) which has been agreed by pt. ammana fintek syariah. through msmes or financial institutions in collaboration with pt. ammana sharia fintech. 20 sri maulida, ahmadi hasan, and masyitah umar, “implementasi akad pembiayaan qard dan wakalah bil ujrah pada platform fintech lending syariah ditinjau berdasarkan peraturan otoritas jasa keuangan ( ojk ) dan fatwa dsn-mui,” altijary, jurnal ekonomi dan bisnis islam 5, no. 2 (2020): 175–89. http://creativecommons.org/licenses/by-nc-sa/4.0/ 198 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 7) periodically, the organizer is obliged to submit the principal and yield (margin or ujrah) to the financier/user, all of which have been listed and agreed upon in detail in the electronic contract. an electronic contract will be considered valid and valid if it includes a digital signature from the organizer and financier as one of the requirements to guarantee its validity and authentication according to the applicable laws and regulations. the contract was used at ammana.id is in the form of a musharaka contract, namely a financing collaboration that occurs between a financier and a partner to raise capital (rasul mal) to finance a business object. in this contract, the financier is also known as the passive financier, and the partner is called the active financier. the second contract, namely the mudharabah contract, is a collaboration between the financier and partners, where the financier will include all of his capital from the needs of a business object to be financed and the distribution of profit-sharing ratios according to mutual agreement. the community-based financing contract mechanism is a model for the services offered by pt. ammana by involving four legal subjects, namely: 1) the organizer, in this case, is pt ammana a provider of information technology-based financing services 2) financing provider 3) partners, namely certain business communities that have collaborated with the organizers, in this case, pt ammana has collaborated with more than 30 bmts or cooperatives and waqf institutions 4) business actors or prospective financing recipients who have joined partners. contracts used in community-based financing services: 1. wakalah bil ujroh contract or representative contract with wages according to dsn-mui fatwa no. 117/2018 wakalah bil ujrah contract is made between ammana and the financier. the wakalah contract http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 199 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia according to the new scholars is considered valid if it fulfills the following conditions: a. the representative (al-muwakkil) b. people who receive power (al-wakil) c. the case being represented d. statement of agreement (ijab-qabul) ammana.id as the beneficiary (wakil) accepts responsibility or receives power of attorney from the financier as the person who represents (muwakil). to channel funds to recipients of financing, so that the financing they issue reaches the recipients of financing. organizers and financiers enter into wakalah bil ujrah contracts, so that from representing them, ammana is entitled to benefit (ujrah) for the provision of services, such as it services or virtual account procurement services. 2. musyarakah contract in the regulation of the chairman of the capital market and financial institutions supervisory agency (bapepam lk) number: per-03/bi/2007 concerning the activities of financing companies based on sharia principles, it is explained that what is meant by musyarakah are funds obtained by financing companies through cooperation agreements with other parties. for certain businesses where each party contributes funds provided that the profits are shared according to the agreement as stated in the contract or proportionally; while the risk is shared proportionally. regarding the distribution of profits and losses generated, it is regulated in fatwa number 08 of 2000 concerning musyarakah financing, i.e. every profit is distributed proportionally or based on an agreement at the beginning of the contract and the profit-sharing system (ratio) must be clearly stated in the deed of agreement and may propose if the profit exceeds a certain amount, the excess or percentage is given to him. then the provision regarding losses is that losses are divided between the parties proportionally according to their respective shares in the capital. http://creativecommons.org/licenses/by-nc-sa/4.0/ 200 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia iv. funding scheme with mudarabah agreement in ammana in this section, the author will explain the funding scheme with a mudharabah contract. ammana's lenders and partners use mudharabah contracts to fund financing to customers. profits from the financing will be shared between ammana's partners and lenders. the lender (represented by ammana) and ammana's partner collaborated to use a mudharabah contract to provide funding to the recipient of the financing. furthermore, ammana partners enter into a financing agreement with the recipient of the financing. below are the details of the funding scheme in ammana: 21 1. prospective recipients of financing apply for financing to ammana partners. mitra ammana conducts an assessment to see the feasibility of financing. 2. after it has been declared that the financing is feasible, then the ammana partner submits the financing to ammana. ammana conducted an assessment of the financing to see its feasibility. after it has been declared that the financing is feasible, then ammana advertises the financing on the ammana mobile application. 3. the lender chooses the financing to be given funding. the lender approves the mudarabah agreement/contract between the lender and the ammana partner through the ammana mobile application (c.1). ammana becomes the representative of the funder to carry out the contract (c.2). 4. mitra ammana enters into a contract with the recipient of the financing. there are various kinds of contracts, such as murabaha, mudharabah, musharaka, etc. 5. ammana transfers financing funds to the beneficiary's account. 21 muhammad miraj rafif, “implementasi akad mudarabah pada pembiayaan daring di pt ammana fintek syariah perspektif kepatuhan syariah.,” diss. universitas islam indonesia, 2020, https://dspace.uii.ac.id/handle/123456789/19953. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 201 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 6. the recipient of the financing transfers the profit sharing and principal financing to ammana every month. 7. ammana submits profit sharing to funders by the agreed ratio. the principal of the financing is returned to the lender after the financing has been completed. next, the author will discuss in detail the mudarabah contract between the lender and ammana's partner. to find out more clearly about the financing with the mudarabah contract applied by ammana, it is as follows: a. contract subject the subject of the mudharabah contract consists of two, namely the financier as the investor and the ammana partner as the capital manager. however, ammana is a platform that brings together lenders and partners, ammana acts as an intermediary between the two. the donor has a wakalah contract with ammana so that ammana becomes the representative of the funder. ammana carries out various legal actions with ammana's partners on behalf of the funder, however, for signing the contract, the funder does so personally (not represented) through the ammana application. therefore, in this contract ammana is a witness. everyone who already has an identity card (ktp) can become a funder at ammana. according to the informant, to be eligible, it is necessary to fulfill two conditions, namely passing verification and having a minimum of rp. 500,000. according to the author, just to register as a lender, you don't have to deposit rp. 500,000, but lenders need rp. 500,000 if you want to fund. micro sharia financial institutions that want to become ammana partners need to meet 5 requirements, namely: 1) have assets of at least 2.5 billion 2) has been established for at least 2 years 3) there has been a rat and it has been reported for at least one year 4) get a rating from ammana of at least 70 or 3 stars 5) get a score from ammana at least level c b. contract object http://creativecommons.org/licenses/by-nc-sa/4.0/ 202 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the object of the funder's mudharabah agreement with ammana's partners is member financing (msmes) of ammana's partners. the minimum funding ceiling in ammana is rp. 10,000,000 and a maximum period of 2 years. in the contract document (related to the object of the contract) there is clear information about the capital included by the lender, the financing period, the profit-sharing between the funder and ammana's partners in the form of profit projections. however, not all msme financing can get funding from ammana. 2 types of requirements must be met, namely the applicant's requirements and the applicant's business requirements are as follows: applicant requirements: 1) indonesian citizen 2) have a job (employee or professional or entrepreneur) and income 3) age 21 years old/married and not past the age of 60 when the financing is paid off 4) physically & mentally healthy 5) not a political party administrator 6) not currently litigating in court or the prosecutor's office or the police 7) only have 2 loans (not including credit cards) 8) has no non-performing loans (col. 2, with dpd 30 days) 9) have a guarantee (can be in the form of fixed assets, fiduciary, avalist / joint responsibility, etc.) 10) have the required documents business requirements: 1) the business has been running for at least 2 years 2) halal productive business after all the requirements are completed, ammana will score the financing. financing will be approved if you get a minimum score of level c (moderate risk). the amount of the ceiling given for funding is also seen from the results of the scoring recommendation and is usually not up to 100%. it depends on the applicant's rpc and the guarantee. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 203 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia c. capital ammana provides a policy for funding each financing of a minimum of rp. 500,000/unit. funds provided by lenders must be in the form of rupiah and submitted by transfer through a virtual account. the funder submits the funds as stated in the contract document. funds will be returned to the lender after the agreement ends or at the maturity of the mudarabah contract d. profit-sharing ammana implements a profit-sharing ratio policy which is an agreement between ammana and ammana's partners. the profit-sharing ratio is taken from the profits obtained from financing with a profit-sharing system. ammana also does not distinguish the profit-sharing ratio between high-risk and non-high-risk businesses (such as agriculture), however, for high-risk businesses, ammana will ask for additional guarantees from ammana's partners. below is an example of the calculation practice. e. advantages and disadvantages mitra ammana is obliged to provide funders for profit sharing by the ratio that has been agreed in the contract. if the ammana partner returns the principal sooner than the maturity of the funding, it does not mean that the return will eliminate or reduce the share of the agreed profit until the financing period expires. if you experience a loss, it will be borne by the lender, unless it is legally proven that the loss is not due to the fault of ammana's partner or the applicant. however, if a loss occurs as a result of negligence, miss management, or the ammana partner's or applicant's intent, then the ammana partner or applicant will bear the loss. if a dispute occurs, it will be resolved at the sharia arbitration board. the decision of the sharia arbitration board is final and binding. http://creativecommons.org/licenses/by-nc-sa/4.0/ 204 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia f. costs lenders will be charged various fees when making funding. these costs include: 1) digital ttd fee of rp. 3,500; 2) rdl fee of rp. 3,000; 3) the disbursement fee for ammana is a maximum of 1% (on average 1%) of the total funding, for example, the 1% fee funds rp. 500,000 then the wage is rp. 5,000; 4) payment channel fee rp. 3,000 (optional) so a lender who funds will be charged rp. 11.500 – rp. 14,500 (with a funding amount of 1 unit). based on the author's observations, the wakalah contract document states that ammana takes ujrah for services providing the ammana platform, but the amount is 0 rupiah from the financing ceiling. however, in practice, ammana takes ujrah of a maximum of 1% of the funding ceiling. apart from the above fees, ammana and ammana partners may not deduct the funder's profits for other costs outside the contract agreement unless the deduction is required by applicable law. all taxes arising from the efforts made by the ammana partner to carry out the contract are borne by the ammana partner. g. supervision and coaching transparency is an important thing that needs to be done by ammana. the more transparent the funds disbursed by the lender, the more trust the lender will have in ammana. therefore, ammana supervises the applicant through ammana's partners. ammana partners are required to periodically inform ammana regarding the development of funded financing. mitra ammana also actively guides msme-umkm in the form of socialization and training such as training in making financial reports. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 205 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia h. penalty for delay the contract document is written regarding the obligation to pay a fine if the payment is delayed, but the nominal amount is rp. 0. this is in line with the statement of the informant that there was no fine that ammana gave for the delay in payment. however, the contract document states that the fine is intended to discipline ammana's partners, and the fine money will be used for social funds. the imposition of a fine is also carried out by looking at the cause of the delay according to the results of the ammana team's evaluation. fines will be imposed every day for up to 30 days (including warning letters 1 to 3 warning letters) and then the legal process will be continued through basyaranas. i. guarantee (collateral) the guarantee provided by the applicant for financing is joint property and is embedded in the right of subrogation between the lender and ammana's partner. according to ammana's informant, the guarantee will be disbursed if the financing applicant cannot complete the contractual obligations under the agreement, however, ammana's standard operating procedures have not regulated the excess or lack of funds resulting from the disbursement of the guarantee. v. substance and mechanism of p2p lending syariah ammana pt ammana fintek syariah is a legal entity established under the laws of the republic of indonesia. established as a company regulated by and under the supervision of the financial services authority (ojk) in indonesia, the company provides interfacing services as a liaison between parties providing financing and parties requiring financing including funding from individuals, organizations, or legal entities to certain http://creativecommons.org/licenses/by-nc-sa/4.0/ 206 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia individuals or legal entities. . the company does not provide any form of advice or funding recommendations regarding the options on this site.22 ammana as the first sharia fintech in indonesia is here to support the progress of msme actors by bridging lenders/lenders with borrowers/borrowers, in this case, msme actors who need halal business capital through joint funding program / halal crowdfunding. and this is one of ammana's tasks which is to connect people with the halal economy and make it universally accepted because it has an impact. procedures are procedures or work sequences or rules that must be carried out so that the objectives of these activities can be carried out effectively and efficiently, and can be well coordinated. the financing procedure at ammana.id is carried out by the standard operating procedures (sop) that have been determined by the company's management. the mechanism in the sop is also implemented as mitigations from risks that may occur. ammana is present as a companyp2p (peer-to-peer) leading sharia with a non-direct funding system, namely msme actors are required to be part/members of micro-sharia finance partners registered in ammana which function as a curation institution for msme business feasibility which will be funded together with lenders/funders through a crowdfunding/co-funding scheme through fintech application. in conducting partnerships, ammana applies profit sharing from productive funding results with a pure profit sharing system between lenders/lenders and ammana's partner islamic microfinance institutions (bmt/kspps/bprs/sharia venture institutions/other sharia financial institutions). the basis for determining profit sharing is based on a comparison between projections/estimates with the realization of the results of operating income obtained from customer partners/msmes who receive funding from lender partners/bmt/kspps partners, and of course, 22 evy iskandar, ayumiati ayumiati, and novita katrin, “analisis prosedur pembiayaan dan manajemen risiko pada perusahaan peer to peer (p2p) lending syariah di indonesia,” j-iscan: journal of islamic accounting research 1, no. 2 (2019): 1–28, https://doi.org/10.52490/j-iscan.v1i2.698. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 207 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia any income/business results between each sector businesses have different business returns with different risks. profit-sharing pattern purely sharia because it calculates profitsharing rights in a fair/fair and open/transparent manner between msme actors themselves, lenders/lenders, and sharia microfinance partners who are amamana partners (bmt/kspps/bprs/sharia venture institutions/ financial institutions another sharia). technically managing public funds, ammana collects public funds directly through the "ammana" application by providing an overview of small and medium-sized businesses that need financing by including information about the description of the type of business, business partners, place of business, business value in units, disbursement wages, value charged submitted and approved, length of financing, details of financing, estimation of profit sharing, type of contract. with the data provided, investors can include funds for business capital to business actors. previously, ammana, as a representative of the investor's fund, was looking for business partners in developing the capital to work together with bmt/kspps/bprs/sharia venture institutions/other sharia financial institutions. in practice, ammana has only reached out to baitul maal wat tamwil and the sharia savings and loans and financing cooperative. the chosen business must be by sharia principles. guidance for business partners is not carried out by ammana directly but through ammana's partners as a channel of funds. the mechanism for applying for loans from msmes to ammana through ammana partners (bmt/kspps): 1. msme submissions to become prospective members and prospective customers to bmt/kspps partners with ammana. 2. the initial coaching and mentoring process by bmt / kspps mitra ammana. 3. after the development of bmt / kspps, msmes submit a capital application to bmt / kspps. 4. selection and analysis as well as scoring by bmt / kspps. http://creativecommons.org/licenses/by-nc-sa/4.0/ 208 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 5. the committee at bmt / kspps. 6. if approved, submit to the ammana partnership business team. 7. the process of review scoring and risk & compliance at rmc ammana. 8. the ammana committee process. 9. cross-check the process to be ready to go live. 10. show process. 11. funding process. 12. full funded akad process. 13. fund disbursement process. 14. installment process & progress reports / post-disbursement. 15. the process of mentoring and coaching by bmt / kspps. 16. payment process. figure 1. loan application process at ammana vi. ammana sharia p2p lending legal analysis in disclaimer ammana point 2, it is stated that "the risk of financing or failure to pay is fully borne by the lender. no state agency or authority is responsible for this default risk." the ammana party as the organizer takes http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 209 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia profits through ujrah in wakalah but unilaterally is not responsible for compensation if the wakalah funds do not achieve a return according to what is offered in the business offer. this is clearly stated in the offer regarding the estimated profit sharing of financing. the estimation may later be wrong and not by what is stated, so there is an element of gharar in the description of the estimate. and also in article 8 paragraph 1f of law number 8 of 199 concerning consumer protection, it is stated that: "business actors are prohibited from producing and/or trading goods or/or services that are not by the promises stated in labels, etiquette, information, advertisements or promotion of the sale of such goods and/or services" according to the author, the organizer's fintech p2p lending sharia violates article 8 paragraph 1f of law number 8 of 199 concerning consumer protection because it includes things that may not be appropriate in the future so that the financing provider must withdraw information on the estimated profit sharing in the financing. in addition to disclaimer point 2, no state institution or authority is responsible for the risk of default. this is because the ojk as a financial supervisory institution in indonesia does not supervise the risk management of lending to sharia p2p lending fintech providers. risk management of lending to fintech is determined by each company. ojk is not responsible if sharia p2p lending fintech companies and fund owners bear the risk themselves. this is different from financial service institutions (ljk) whose risk management for financing distribution is regulated by the ojk. coupled with several contracts between channel partners and recipients of capital there are no binding guarantees, making it possible will increase the default rate on the return on capital. even though there is a risk mechanism from the ammana party, without the supervision of the ojk, fintech p2p lending sharia is like a digital era loan shark wrapped in a sharia halal fatwa. the long sequence of capital financing from the financier to the recipient of the financing is a problem in itself. the financier must go through two stages in translating its funds through the financing provider http://creativecommons.org/licenses/by-nc-sa/4.0/ 210 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia (ammana) and the implementing partner (bmt/kspps). in the contract used between the financing provider and the organizing partner, the ammana party claims to use a musyarakah contract, which should be between the financier and the financing provider together for a particular business, where each party contributes capital provided that the profits are divided according to a ratio agreed and the loss will be shared proportionally. it is not explained whether the financing provider contributes capital or not. so that the conditions for the occurrence of musharaka, namely both contributing capitals have not been fulfilled so that it will result in the cancellation of the contract due to unclear conditions that have not been met. by the fatwa of the national syari'ah council of the indonesian ulema council number 08/dsn-mui/iv/2000 regarding musyarakah financing, point 2b stipulates: "each partner must provide funds and work, and each partner carries out work as a representative." problems arise regarding prioritizing the contract wakalah or a contract agreed by ammana's partner with the recipient of capital, granting of power (wakalah) from the lender to ammana in practice the lender chooses directly the business without any agreement or wakalah contract which means prioritizing the contract agreed upon by the recipient of capital with ammana's partner (eg. murabaha contract) in the dsn mui number 117/dsn-mui/ii/2018 in the sixth stipulation regarding the mechanism and contract point 6d it is stated: "if the prospective financier approves the offer as referred to in letter c, a contract shall be executed. wakalah bi al-ujrah between the financing provider and the operator to provide financing to the financing recipient; the financier as muwakil, and the organizer as the representative." this article shows that the process of the wakalah contract occurs automatically when the financier approves the offer from the organizer. the absence of a sharia supervisory board as sharia director for all operational activities fintech sharia has an impact on investors' doubts about sharia compliance (shariah compliance) for sharia fintech institutions. the aspect of sharia compliance is a fundamental aspect and http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 211 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia makes the difference between sharia-based service providers and conventional service providers because in sharia there is not only profitoriented but also falah oriented where not only profits are obtained but victory in the world and the hereafter becomes one of the benefits. to be achieved in the implementation of sharia-based services. to achieve this, the regulation of sharia financial services institutions (in this case, sharia p2p lending) is regulated regarding sharia compliance, whose authority lies with the indonesian ulema council, which is presented through the sharia supervisory board which must be established at each organizer. information technology-based lending and borrowing services sharia-based p2p lending.23 conclusion ammana as organizer p2p lending sharia obtains funds from the financier with a wakalah bil ujrah contract and distributes the funds to the organizing partner using a musharaka contract and is continued by the organizers to the recipient of non-standard capital using what contract, depending on the organizing partner and the recipient of capital that is based on sharia principles. with disclaimer point 2, the organizers do not want to lose due to default by the recipient of the financing, which may occur due to the absence of ojk supervision and the absence of guarantees from the loan recipient. in the statement, it is stated about the estimation of profit sharing, even though the estimate may later be wrong and not by what is stated, so there are elements of gharar and violates article 8 paragraph 1f of law number 8 of 199 concerning consumer protection. the absence of a sharia supervisory board as sharia director for all operational activities fintech sharia has an impact on investors' doubts about sharia compliance (shariah compliance) for sharia fintech institutions. 23 achmad basori alwi, “pembiayaan berbasis teknologi informasi (fintech) yang berdasarkan syariah,” al-qanun: jurnal pemikiran dan pembaharuan hukum islam 21, no. 2 (2018): 255–71, https://doi.org/10.15642/alqanun.2018.21.2.255-271. http://creativecommons.org/licenses/by-nc-sa/4.0/ 212 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of 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(2010, june 1). jenis dan metode penelitian kualitatif. https://www.uin-malang.ac.id/r/100601/jenis-dan-metode-penelitiankualitatif.html statistik fintech lending periode maret 2019. (n.d.). retrieved february 20, 2022, from https://www.ojk.go.id/id/kanal/iknb/data-danstatistik/fintech/pages/statistik-fintech-lending-periode-maret2019.aspx suhendi, h. (2014). fiqh muamalah (9th ed.). rajawali press. sulaiman, a. w. i. a., & novia, a. (2006). banking cards syariah : kartu kredit dan debit dalam perspektif fiqih. raja grafindo persada. t, wijayanti. (2018). pelaksanaan pemberian kredit berbasis teknologi informasi oleh fintech kepada pelaku ukm. [universitas muhammadiyah surakarta]. http://eprints.ums.ac.id/66263/16/naskah publikasi rev.pdf tim kashiko. (2000). kamus lengkap : arab indonesia. kashiko. acknowledgment none funding information none conflicting interest statement the authors states that there is no conflict of interest in the publication of this article. publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for http://creativecommons.org/licenses/by-nc-sa/4.0/ 214 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. about author(s) khasanudin is a postgraduate student at the faculty of law, universitas diponegoro, semarang indonesia. budi santoso is a professor at the faculty of law, universitas diponegoro, semarang indonesia. his area of expertise is concerning private and business law. http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cbef61a637 • 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: 7fbf23cd0a4b209d • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(4) 2020 631 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia research article abortion by rape victim: a dilemma in the drat of penal code and indonesian health law fikri ariyad1, ali masyhar2 1 lbh rumah pejuang keadilan kota semarang, indonesia 2 faculty of law, universitas negeri semarang, indonesia  fikriariyad@yahoo.com cited as ariyad, f., & masyhar, a. (2020). abortion by rape victim: a dilemma in the drat of penal code and indonesian health law. journal of law and legal reform, 1(4), 631-640. https://doi.org/10.15294/jllr.v1i4.39659 abstract in this present time, the debate about abortion in indonesia is increasingly crowded. abortion is also carried out by women victims of rape to reduce the burden they suffered. the regulation on abortion in indonesia has been regulated in the statutory regulations, namely the criminal code, especially in article 346, article 347, article 348, and article 349. in the rkuhp (draft of criminal code), abortion regulation is regulated in two chapters namely, chapter xiv article 501 and chapter xix articles 589, 590, 591, 592. in addition, the government has also issued several regulations governing abortion such as government regulation no. 61 of 2014 concerning reproductive health and also law no. 36 of 2009 concerning health. however, the various regulations that exist between the criminal code, rkuhp, pp and the act actually contradict to each other. there is no synchronization between the regulations regarding abortion by women rape victims. the kuhp and rkuhp clearly do not allow abortion in indonesia and do not legalize it without any exception, including abortion carried out by women victims of rape. whereas in law number 36 of 2009 concerning health, abortion can be carried out on an indication of medical emergencies and pregnancy due to rape that causes psychological trauma, so abortionists cannot be prosecuted as criminal. keywords: abortion; rkuhp; rape victims; criminal code journal of law and legal reform (2020), 1(4), pp. 631-640. doi: https://doi.org/10.15294/jllr.v1i4.39659 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 17 april 2020, revised: 19 may 2020, accepted: 30 june 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://journal.unnes.ac.id/sju/index.php/jllr/article/view/39659 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/39659 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/39659 https://doi.org/10.15294/jllr.v1i4.39659 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 632 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 631 table of contents ………………………………………………………….. 632 introduction …………………………………………………………………. 632 method …………………………………………………………………………… 633 discussion ………………………………………………………………………. 634 conclusion …………………………………………………………………….. 639 references ……………………………………………………………………... 639 introduction violence against women can occur anytime, anywhere, and can be done by anyone. among the various cases that occur against women, most perpetrators are people who are very close to the victim. even in one family, violence can still occur. such violence is for example the violence of a husband against his wife, father to his child, brother to his sister and, so forth. violence against women can be in the form of physical violence such as abuse and torture. in addition to physical violence, sexual and psychological violence also often occurs against women such as rape and others. among the various cases of rape, it happened because it was voluntary from the victim and there were also acts of coercion committed by the perpetrators. cases of rape in indonesia continue to occur. the impacts on victims other than pregnancy, cases like this also lead to psychological disorders such as severe depression, social impacts on children born, the victim's own status in socializing with the surrounding community, and other impacts that must be borne alone by a woman who was pregnant as a result of rape. this kind of circumstances make women rape victims take shortcuts such as abortion to reduce the psychological burden that is experienced, cover up the family's disgrace and feelings of self-shame, family, and bad views from the community. the debate about abortion in indonesia lately is increasingly crowded. it's no longer a secret to talk about, because abortion has become an actual thing and events that have occurred and carried out by anyone. for example, it is carried out by teenagers involved in free promiscuity initially dating normally, but after long dating they have marital relations, because of shame and fear of being caught, then they abort. it also can be done by a married wife who does not want to be held responsible http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 633 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia for the birth of a child, then the child is aborted in the womb. abortion is also carried out by women victims of rape to reduce the burden they suffered as explained above. the problem of abortion performed by women victims of rape is reaping the pros and cons. those who do not agree to have an abortion by women who are victims of rape are because of the opinion that everyone has the right to live, including fetuses in the womb of women due to rape. it is god's creation that is entitled to enjoy life. for those who agree that an abortion can be carried out for rape victims, the pregnancy arises do not because the victim wishes to be able to reduce the suffering of the victim both psychologically and socially, thus giving the rape victim the right to be able to have an abortion. judging from the high rate of abortion which is increasing from year to year, the abortion needs to get attention through wiser arrangements to avoid unsafe abortion practices and fulfillment of women's reproductive rights as well as women's and fetal rights. the regulation on abortion in indonesia has been regulated in the legislation, namely the criminal code, especially in article 346, article 347, article 348, and article 349. in the rkuhp, the regulation on abortion is regulated in two chapters namely, chapter xiv article 501 concerning criminal acts decency part six concerning medication that can cause birth abortion and chapter xix articles 589, 590, 591, 592 concerning crimes against life part two on abortion. in addition, the government has also issued several regulations governing abortion such as government regulation no. 61 of 2014 concerning reproductive health and also law no. 36 of 2009 concerning health. however, the various regulations that exist between the criminal code, rkuhp, pp and the act actually contradict to each other. there is no synchronization between the regulations regarding abortion by women rape victims. therefore, this study aims to find out and analyze how the regulation of abortion carried out by victims of rape according to the criminal code and the draft criminal code. the study also intended to analyze the regulation of abortion according to law no. 36 of 2009 concerning health. method the type of research in this paper is normative (literature) sourced from laws and regulations, books, official documents, and research results which are solely used to obtain complete data as the basis for writing this scientific work. this research is descriptive analytical, which reveals the laws and regulations relating to legal theories as research objects. the data collection technique is carried out by means of library http://creativecommons.org/licenses/by-nc-sa/4.0/ 634 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research. this method is carried out by conducting research on various sources of written reading from scholars such as theoretical books on law as well as lecture materials, as well as legislation regarding abortion carried out by rape victims. in addition, this writing is written via the internet in indonesian language with the help of legal dictionaries and encyclopedias. discussion generally, the term abortion is defined as the removal of the fetus prematurely, whether intentionally or not. it is usually done when the fetus is still young (before the fourth month of pregnancy). medically, an abortion is the end or death of a pregnancy before the womb reaches the age of 20 weeks, that is, before the fetus can live outside the womb independently. the term abortion or linguistically means abortion or disposing of the fetus. in legal terms, this means the removal of the conception from the uterus prematurely (before it can be born naturally). abortion carries a high enough risk, if it is performed not according to the standards of the medical profession. abortion or in the medical world is known as abortion. means the release of the results of conception (meeting the egg and sperm cells) before the fetus can live outside the womb. this is a process of terminating the life of the fetus before being given the opportunity to grow. types of abortion can be grouped into two different types: 1. abortus spontaneous it is the abortion that occurs naturally without any effort from outside or human intervention, including spontaneous abortion (accidental abortion) and natural abortion (abortion naturally). 2. abortus provocatus it is the intentional abortion, occurs because of human actions that try to abort unwanted content, including: a. abortus provocatus medicanalis it is the abortion carried out based on medical reasons/considerations. an example is abortus provocatus therapeuticus (abortion to save the life of the mother). b. abortus provocatus criminalis it is the abortion done deliberately by violating various applicable legal provisions. for example, induced abortion/provoked abortion (abortion intentionally for various other reasons, such as embarrassment to neighbors, have not been able to have children and so on). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 635 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia the terrible effects of illegal abortion are: 1) if it is done by using sharp non-standard equipment such as sticks, tree branches, or others, then the risk of uterine tear or injury is huge. 2) a uterus that is aborted more than 3 times is at risk of becoming dry, infected, or even triggering tumor growth. 3) illegal abortions carried out by unskilled people can cause an unclean curettage process to cause severe bleeding. 4) unsterile equipment will trigger infections in the female reproductive organs, even to the intestines. 5) for perpetrators, the sense of sin arising from abortion can cause them to suffer from depression, change their personality into introverts, and often cannot enjoy sexual relations if they are married. 6) if the abortionist becomes pregnant again with the desired pregnancy, then the pregnancy is most likely to have problems, or the fetus may experience problems in the eyes, brain or digestive devices. legalization of abortion needs to be heeded and emphasized even more given the existing regulations are contrary to each other. 1. the regulations of abortion in the criminal code (kuhp) and the draft of criminal code (rkuhp). the regulations regarding abortion are also contained in the criminal code (kuhp) which applies as a general criminal law (lex generalie), the regulation on intentional abortion (abortus provocatus) in the criminal code (kuhp) regulated in the second book chapter xiv concerning crimes of decency especially article 299, chapter xix article 346 to article 349, and classified as crimes against lives. the following is a description of the regulation of abortus provocatus contained in each of these articles: article 299: 1) anyone who deliberately treats a woman or orders to be treated, is notified or raises hope that because the treatment can be aborted pregnancy, threatened with imprisonment at most four years or a maximum fine of forty-five thousand rupiah. 2) if the person who is guilty does so for profit, or makes the act a quest or habit, or if he is a physician, midwife or medic, the penalty can be increased by one third. 3) if the person who is guilty of the crime is conducting a search, then the right to revoke the search can be revoked. http://creativecommons.org/licenses/by-nc-sa/4.0/ 636 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia article 346: "a woman who deliberately aborts or turns off her womb or orders someone else to do so is threatened with a maximum prison sentence of four years". article 347: 1) anyone who intentionally aborts or kills a woman's womb without his consent is threatened with a maximum prison sentence of twelve years. 2) if the act results in the death of the woman, then the maximum imprisonment is fifteen years. article 348: 1) anyone who deliberately aborts or kills a woman's womb with his consent, is threatened with a maximum imprisonment of five years and six months. 2) if the act results in the death of the woman, then the maximum imprisonment is seven years. article 349: "if a physician, midwife or medicine person helps to carry out the crime mentioned in article 346, or commits or helps to commit one of the crimes described in article 347 and article 348, then the crime specified in that article can be increased by one third and may be added to revoked the right to conduct searches in which a crime was committed. " in the rkuhp the regulation on abortion is not much different from the regulation on abortion in the criminal code, where the draft kuhp has the potential to criminalize pregnant women due to rape. the abortion due to rape is called abortion of provocatus herapetics. this is an effort to save the future of the mother. the articles in the rkuhp are related to abortion, namely article 589 paragraphs (2) and (3), article 590 paragraphs (1) and (2), article 591 paragraphs (1) and (2). based on the formulation of the articles in the criminal code and the criminal code criminal procedure code above, the elements of the crime can be described as follows: a. a pregnant woman who intentionally had an abortion or ordered someone else, is threatened with a sentence of 4 (four) years in prison. b. a person who intentionally had an abortion with a pregnant woman, without her consent, was threatened with a 12-year prison sentence, and if the pregnant woman died, he was threatened with 15 years in prison. c. if the act is done with the consent of the pregnant woman, then she will be sentenced to 5.5 years in prison and if the pregnant woman dies she will be sentenced to 7 years in prison. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 637 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia d. if the person who assisted in the abortion was a doctor, midwife or interpreter (health worker) the threat of punishment was increased by a third and the right to practice could be revoked. the articles in the criminal code clearly do not allow an abortion in indonesia. the criminal code does not legalize it without any exception. even included are abortions carried out by women victims of rape. 2. regulation of abortion in law number 36 of 2009 regarding health. in law no. 36 of 2009 on health there are regulations that allow someone to have an abortion with two conditions. one is because there are indications of medical emergencies, and two is because of unwanted pregnancy due to rape that can cause psychological trauma for victims of rape. the highlight of abortion here is article 75 of law no. 36 of 2009 concerning health that basically abortion is prohibited, but there are exceptions which one of which is if the pregnancy is due to rape which can cause psychological trauma for rape victims. article 75 health law: a. every person is prohibited from having an abortion. b. prohibitions as referred to in paragraph 1 can be excluded based on: 1) indications of medical emergencies detected from an early age of pregnancy, both those that threaten the life of the mother/fetus, who suffer from severe genetic diseases and / or congenital defects, or which cannot be repaired making it difficult for the baby to live in pregnancy, or 2) pregnancy due to rape that can cause psychological trauma for rape victims. c. the actions referred to in paragraph (2) can only be carried out after going thro ugh pre-action counseling and/counseling and ending with post-action counseling carried out by competent and authorized counselors. d. further provisions regarding indications of medical emergencies and rape, as referred to in paragraph (2) and paragraph (3) shall be regulated by government regulation. other than in law number 36 of 2009 concerning health, article 75, in government regulation no. 61 of 2014 concerning reproductive health also states that abortion is permitted for pregnancy as a result of rape victims government regulation (pp) number 61 of 2014 concerning reproductive health was endorsed by president susilo bambang yudhoyono on july 21, 2014. this regulation is the implementation of law no. 36 of 2009 concerning health in particular article 75, article 126, and article 127. http://creativecommons.org/licenses/by-nc-sa/4.0/ 638 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia part of the spotlight is the legalization of abortion in the government regulation, which reads: article 31 government regulation no. 61 of 2014: 1) acts of abortion can only be done based on: a. indications of medical emergencies. b. pregnancy due to rape. 2) abortion due to rape as referred to in paragraph (1) letter b can only be carried out if the gestational age is at most 40 (forty) days counted since the first day of the last menstruation. article 34 government regulation no. 61 of 2014: 1) pregnancy due to rape as referred to in article 31 paragraph (1) letter b is a pregnancy resulting from sexual relations without the consent of the woman in accordance with the provisions of the legislation. 2) pregnancy due to rape as referred to in paragraph (1) is proven by: a. pregnancy is in accordance with the rape event stated by the doctor's statement. b. information from the psychologist investigator and / or other expert regarding the alleged rape. regarding pregnancy due to rape victims, this can be done if the pregnancy is over 40 days after the first day of the last menstrual period. while what is meant by indications of medical emergencies are: a. pregnancy that threatens the life and health of the mother. b. pregnancies that threaten the life and health of the fetus, including those suffering from severe genetic diseases and / or congenital defects, or that cannot be repaired making it difficult for the baby to live outside the womb. evaluation of medical indications is carried out by at least 2 health workers, known to doctors who have competence and authority. based on the description above, if the abortion was carried out on the indication of medical emergencies and pregnancy due to rape that caused psychological trauma, then the abortionist cannot be prosecuted criminal. however, if the abortion is not included in the exceptions in article 75 paragraph (2) of the health act, then the abortionist can be prosecuted as contained in article 194 of the health act: "any person who intentionally had an abortion is not in accordance with the provisions as referred to in article 75 paragraph (2) shall be sentenced to a maximum imprisonment of 10 years and a maximum fine of rp. 1 billion. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 639 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, unive rsitas negeri semarang, indonesia conclusion this study highlighted that articles in the criminal code and rkuhp (draft of criminal code) clearly do not allow an abortion in indonesia. kuhp and rkuhp do not legalize it without any exception. even provocatus medical abortion or abortus provocatus therapeuticus is also prohibited, including provocatus abortion which is carried out by women victims of rape. in law number 36 of 2009 concerning health, abortion can be carried out on an indication of medical emergencies and pregnancy due to rape that causes psychological trauma, so abortionists cannot be prosecuted criminal. references notoatmodjo, s. (2007). pendidikan dan perilaku kesehatan. jakarta: pt. rineka cipta. soekanto, s. (2009). sosiologi suatu pengantar (revisi). jakarta: raja grafindo persada. soeroso, m.h. (2010). kekerasan dalam rumah tangga dalam perspektif yuridis viktimologis. jakarta: sinar grafika. mansur, d. a. & gultom, e. (2009). urgensi perlindungan korban kejahatan antara norma dan realita. jakarta: pt.radjagrafindo persada. azinar, m. (2013). perilaku seksual pranikah berisiko terhadap kehamilan tidak diinginkan. jurnal kesehatan masyarakat, 8(2), 153-160. arisandi, d., & safitri, s. (2012). sikap terhadap aborsi pada mahasiswa universitas esa unggul. jurnal psikologi, 10(1). https://ejurnal.esaunggul.ac.id/index.php/psiko/issue/view/260 law, regulations law number 36 of 2009 concerning health indonesian criminal code (kuhp) draft of the criminal code (rkuhp) http://creativecommons.org/licenses/by-nc-sa/4.0/ https://ejurnal.esaunggul.ac.id/index.php/psiko/issue/view/260 640 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote any country that accepts abortion, is not teaching its people to love, but to use any violence to get what it wants. mother teresa http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cc7b3c206d • 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: 7fbf23c939512055 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 2(1) 2021 211 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article state authority in appointing asn: comparison of issues between kpk employees and honorary teachers syarifa khasna1, ayon diniyanto2 1, 2 department of constitutional law, iain pekalongan, indonesia jl. kusuma bangsa no.9, panjang baru, pekalongan utara, kota pekalongan, jawa tengah 51141, central java, indonesia  syarifa.khasna@iainpekalongan.ac.id cited as khasna, s., & diniyanto, a. (2021). state authority in appointing asn: comparison of issues between kpk employees and honorary teachers. journal of law and legal reform, 2(2), 211-224. https://doi.org/10.15294/jllr.v2i2.46347 submitted: december 27, 2020 revised: february 22, 2021 accepted: may 1, 2021 abstract government regulation no. 41 of 2020 on the transfer of employees of the corruption eradication commission into civil servants unilaterally makes kpk employees as asn. in fact, not all kpk employees are willing to be asn and there is public rejection of the policy. on the other hand, there are honorary teacher want to be appointed as asn. until now there is no certainty of transfer of honorary teacher status to asn. although there has been policy related to the appointment of honorary teachers to become asn, but the policy is different from the policy transferring status of kpk employees to asn. this study aims to find the motives of the state to transferring kpk employee status into asn and find policy differences in the appointment of asn between kpk employees and honorary teachers. this research showed that the transfer of kpk employee status to asn has pros and cons motives. the pro motive is that the transfer of kpk employee status to asn aims to have (1) kpk employees well coordinated; and (2) the need for asn support to kpk as part of kpk strengthening. the counter motive sees the transfer of kpk employee status to asn as an effort to control kpk and strengthen the independence of kpk employees or journal of law and legal reform (2021), 2(2), pp. 211-224. doi: https://doi.org/10.15294/jllr.v2i2.46347 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46347 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 212 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia weaken kpk. meanwhile, asn appointment policy inequality between kpk employees and honorary teachers has not been in accordance with the principles of equality right and economic equality. keywords: state authorities; asn; kpk; honorary teacher introduction appointment of the state civil administration (asn) is basically the domain or power of the state. countries can appoint asn according to their needs, at any time, and in institutions, as well as in any profession. the withdrawal of state power in the appointment of asn sometimes creates imbalances. it is not surprising that state power through state policy in the appointment of asn cause pros and cons. the state policy in appointing asn or changing the status of an employee of the corruption eradication commission (kpk) to asn can rationally be said to be inequality. the inequality at least be seen from the issues circulating in the public. the state through the government with existing legal instruments will transfer the status of kpk employees to asn. government regulation no. 41 of 2020 on transfer of corruption eradication commission employees to state civil administration employees unilaterally makes kpk employees as asn. in fact, at the issue level, there are kpk employees who are not willing to be made asn. many people have refused to change the status of kpk employees to asn. interestingly, the response of the government stated that kpk employees who were not willing to become civil servants could resign. this position clearly indicates the government's domination of kpk employees and the public who reject it. the state in this case shows its power in the appointment of asn. it seems that the state does not care about public issues related to the refusal of kpk employees to become asn. furthermore, the state seems to impose it will transfer the status of kpk employees to asn (harianja, 2020; ricardo, 2019). on the other hand, there are other professions that want to be appointed as asn. honorary teachers or non-permanent teachers (guru tidak tetap, gtt) or other names, based on issues circulating in the public space, want to be appointed as civil servants. the reasons are very diverse, one of the reasons is wanting an increase in welfare. however, the fact is that until now there is no certainty about the transfer of the status of honorary teachers to asn. the certainty referred to is certainty as occurs in the transfer of the status of kpk employees. although there have been policies related to the appointment of honorary teachers to become asn teachers. however, this policy is different from the policy regarding the transfer of the status of kpk employees to asn. in this http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 213 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia context, based on the issue , there is an imbalance in the appointment or transfer of status as asn (hikam, 2020; liputan6.com, 2021). the imbalance is that there are pros and cons in changing the status of kpk employees to asn, but the state still insists on the transfer of status to asn. on the other hand, many honorary teachers want an appointment or transfer of status as asn, the state in this case has not provided policies such as kpk employees. there is a policy for the appointment of teachers through government employees with a work agreement or pppk. this imbalance raises a big question. what is the state's motive in changing the status of kpk employees to asn? why is the state policy in the appointment of asn between kpk employees and honorary teachers different? this research aims to find the state's motives for transferring the status of kpk employees to asn and to find differences in the policy of appointing asn between kpk employees and honorary teachers. method this research uses a qualitative research approach. a qualitative research approach is research conducted by photographing social phenomena in society and then narrating it by analyzing and drawing conclusions. this study portrays a phenomenon that occurs in society, which is related to the appointment or transfer of the status of kpk employees to asn. the researcher also analysing the issue of honorary teachers’ desire to be appointed as civil servants. researchers then compared both with the comparison treatment by the state. the results of photographing social phenomena and the results of these comparisons then drawn to conclusions in response to big questions written by researchers (hardani et al., 2020). this type of research conducted by researchers used a type of doctrinal research with a normative juridical type. this type of juridical normative research is conducting studies related to legal products or legislation and then analyzed using theory and various literature sources (sonata, 2014). this study analyzes the laws and regulations related to the transfer of the status of kpk employees to asn. this study also analyzes regulations or legal foundations in the form of laws and regulations relating to the appointment of honorary teachers to become civil servants. the state’s motive in changing the status of kpk employees to asn changing the status of kpk employees to asn actually causes pros and cons in the public. the pros and cons of issues occurring in the media and social media. there are many wild allegations that have developed in the public http://creativecommons.org/licenses/by-nc-sa/4.0/ 214 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regarding the transfer of the status of kpk employees to asn. one of the widely circulated public allegations that the transfer of status was none other than to weaken the kpk. the reason is also circulating, that the existence of kpk employees to become asn will be easier to control by the state. this is because management of asn under the ministry of state apparatus utilization and bureaucratic reform (kemenpan-rb) and national civil service agency (bkn). actually, there are two more institutions related to asn, the state civil administration commission (kasn) and the national institute of public administration (lan). however, the duties and functions of kasn are more to the supervision of asn. then the duties and functions of lan are more to learning and development institutions for the state apparatus. the ministry of pan-rb and bkn are ministries and implementing agencies for policies related to asn. these ministries and institutions are agencies/institutions under the government. it is not surprising that many kpk employees eventually chose to resign because they did not want to become asn (dialeksis, 2020; risalah, 2020). the attitude of the state towards the issue of pros and cons, especially the contra of transferring the status of kpk employees to asn, is still at the normative level. the state, through the government, has the opinion that the kpk is an executive so that it needs to be supported by asn. in addition, the transfer as asn is carried out so that it can be more integrated and coordinated so that it is not wild (alfian, 2019; kamil, 2021). the state's attitude that seems normative and has not answered the allegations of weakening the kpk certainly provides wilder speculations in public. although the evidence related to the weakening of the commission as a result of transferring the status of employees can be seen after the completion running in a few years. state responses that seem normative basically make the public even more wondering. what is the state's real motive for transferring the status of kpk employees to asn? is it true that only normative motive as has been mentioned? or is there another motive that the state wants to aim for in relation to the transfer of the status of kpk employees to asn? this question is certainly difficult to answer because motives are actions that have not occurred or desires that have not yet been realized. but based on the outstanding issues and policies that have been issued by the state, at least a hint can be found associated with a pattern appointment employees of the commission into asn. in fact, there are two issues circulating regarding the transfer of kpk employees to asn. the first issue is an issue that is pro towards the transfer of the status of kpk employees to asn, while the second issue is a contra issue. the pro issue states that the transfer of the status of kpk employees to asn is so that it can be well coordinated so that it is not illegal. in addition, the transfer of the status of kpk employees as asn is also so that there is support for the kpk from asn, remembering that the kpk is an executive. there is a contra issue that states is an attempt to control the kpk through transferring kpk employees to asn. the next contra issue is the transfer of kpk employees to asn http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 215 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia is nothing but to assert the independence of kpk employees. even more, the transfer of the status of kpk employees to asn is part of the weakening of the kpk (alfian, 2019; dialeksis, 2020; kamil, 2021; risalah, 2020). table 1. motive pros and cons based on circulating issues regarding the transfer of status of kpk employees to asn no. motive pro motive cons 1 kpk employees are well coordinated (not wild) controlling the kpk 2 the need for asn support to the kpk negating the independence of kpk employees / weakening the kpk based on the pros and cons, it can be seen which motive is actually appropriate. motives that are pro or motive that are contra to the transfer of the status of kpk employees as asn. of course, these two motives have several possibilities. either both are true, it can be either wrong, or it can be both wrong. the researcher will test the pros and cons of the motives one by one. the researcher first examines the motives of the pro. i. pro motive for the transfer of kpk employee status to asn the motive for the pro-change of the status of the kpk to asn, as mentioned earlier, has two motives. first, kpk employees are well coordinated. second, the need for asn support to the kpk. researchers analyzed further related to the pro motive for the transfer of the status of kpk employees to asn. 1) kpk well coordinated this pro motive is a motive issued by the government as the executor of state power and also the policy maker, in this case the house of representatives (dpr) and the president/government. they are argued that kpk employees must be coordinated so as not to run wild. these opinions are actually in line with the policies issued by the state, in this case the government. policies issued by the government through government regulation no. 41 of 2020, which implies strengthening the kpk through the word support in the preamble to consider is a goal. the policy is real, but the intention of strengthening is an issue because there is no evidence that the transfer of the status of kpk employees to asn strengthens the kpk. the same is true with regard to coordination. the purpose of the coordination conveyed by the government is certainly an issue because once again, there is no evidence that there is coordination due to the transfer of the status of kpk employees to asn. http://creativecommons.org/licenses/by-nc-sa/4.0/ 216 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2) the need for asn support to the kpk this motive seems normative because it is stated in the preamble to consider government regulation no. 41 of 2020. this motive was motivated by the pretext that the kpk is part of a clump of branches of executive power. article 1 paragraph (3) of law (no) 19 of 2019 regarding the second amendment to law (no) 30 of 2002 on corruption eradication commission states that corruption eradication commission is the agency states power executive who carry out the task of prevention and eradication of criminal corruption in accordance with the act's. this provision is re-explained in article 3 which states that the corruption eradication commission is a state institution within the executive power carrying out its duties and powers is independent and free from the influence of any power. the consequence of this is kpk employee arrangements are adjusted to the executive branch of the institution or agency. including the position or status of kpk employees. in fact, the transfer of the status of kpk employees has been drafted in the regulations governing the kpk. article 24 paragraph (2) of law no 19 of 2019 on the second amendment to law no 30 of 2002 on the corruption eradication commission states that the corruption eradication commission employees are members of the professional corps of civil servants of the republic of indonesia in accordance with the provisions of the regulation. this paragraph explicitly states that kpk employees are asn. this means that kpk employees have indeed been designed to become civil servants. in law no 19 of 2019 on the second amendment to law no 30 of 2002 on the corruption eradication commission, there is no mention of the reasons why kpk employees must have asn status. there are two reasons implied in the law why kpk employees must be asn. first, in the preamble letter c of law no 19 of 2019 regarding the second amendment to law no 30 of 2002 on the corruption eradication commission stated that the implementation of the tasks the corruption eradication commission needs to be continuously improved through prevention and eradication strategy of criminal corruption that is comprehensive and synergistic without ignoring the respect of the right to basic human accordance with the provisions of regulation law. according this provision, it can be implicitly interpreted that the transfer of the status of kpk employees to asn is part of the enhancement of the kpk's duties. second, according at article 1 number (3), article 3, and article 24 paragraph (2) in the law implicitly states that the kpk is an executive office so that kpk employees have the status of asn. regulations related to kpk employees are government regulation no 41 of 2020 and law no 19 of 2019 on the second amendment to law number 30 of 2002 on the corruption eradication commission implicitly means that the transfer of the status of kpk employees to asn is to support the performance of the kpk. however, the question is, has the kpk employees not been asn status so far, the kpk's performance has not improved? the next question is, is there any http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 217 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia guarantee that the transfer of the status of kpk employees to asn will definitely or automatically improve the kpk's performance? these questions will be answered over time. if after transfer the status of kpk employees to asn, there is no increase in the performance of the kpk from the aspect of kpk employees, then the policy of transfer the status of kpk employees to asn can be said have not been successful. the pro motive analysis is the result of a study on the issue of the status transfer of kpk employees to asn. this issue is derived from issues circulating in the public, especially the media. apart from being based on issues, there is also an analysis from the aspect of legislation. the next motive is the contra motive related to the transfer of the status of kpk employees to asn. researchers also analyzed counter motives based on issues circulating in the public. the researcher analyzed two counter motives. ii. counter motive for the transfer of kpk employee status to asn the motive against the transfer of the status of kpk employees to asn is divided into two motives. first, controlling the kpk. second, negating the independence of kpk employees or weakening the kpk. researchers succeeded in analyzing the contra motive based on a comparative study with employees in state institutions with asn status. the following are the results of the analysis conducted by the researcher. 1) controlling the kpk many former kpk leaders, anti-corruption activists and nongovernmental organizations have expressed this contra motive. this motif is a motif that differs from the first pro motif. the first pro motive states that the transfer of the status of kpk employees to asn is to coordinate kpk employees so that they are not wild and in accordance with the regulation. the word coordination can be interpreted to actually strengthen or solidarity. the first pro motive seems to be refuted by the first contra motive. that the transfer of the status of kpk employees to asn is not for strengthening coordination but rather for controlling the kpk. the rational reason for the opinion that there is a contra motive that changing the status of kpk employees to asn will cause kpk employees to be controlled by the government. this is because asn is an civil servant under government, in this case the ministry of pan-rb and bkn. it is not surprising that the counter motive argue that kpk employees who become asn can be controlled by their superiors. this reason is rational because of the duties and functions of the pan-rb and bkn ministries. it does not rule out that the two agencies/institutions can control kpk employees who have asn status. at http://creativecommons.org/licenses/by-nc-sa/4.0/ 218 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia least by doing a rotation or a tour of duty and a tour of area (akhmad, 2019; radarcirebon.com, 2020). however, the opinion related to kpk employees with asn status can be controlled by the government is also not necessarily correct. this example can be seen in institutions / agencies that are not part of the executive power as the house of representatives (dpr), the people's consultative assembly (mpr), the regional representative council (dpd), the constitutional court (mk), the supreme court (ma), the judicial commission (ky), and the supreme audit agency (bpk). these institutions have employees who come from asn. these institutions have many asn as their employees, and this has been happening for decades. but until now there is no statement that asn who is an employee in these institutions controls the institution or the government controls the institution. interestingly, the recruitment of asn in these institutions continues and there are no problems related to institutional control. it means that statements related to the transfer of the status of kpk employees to asn can be controlled is a temporary perception or suspicion from the public. evidence of the existence of the kpk being controlled is of course not available, until this article created. there has been no implementation of transferring the status of kpk employees to asn and it has not been proven that the kpk is controlled. this clearly indicates that there has been a war on issues between pro motives and contra motives. the issue of coordination and the commission controlled being played in public through statement and media. the public was asked to judge the issue related to the war. this condition actually benefit the public, because the public can see the direct and immediate evaluation of how role kpk employees after becoming asn, coordinated or controlled. the public can also prove directly whose issue is right. evidence made by the public can be seen over time after a change in the status of a kpk employee to asn. the public can prove the issue of coordination that is really happening or the issue of being controlled by the corruption eradication commission (kpk). here the public can draw conclusions about who is right and who is wrong. these circulating issues can also arouse public sensitivity to participate in the supervision of state institutions, especially in this case the kpk. community involvement and obtaining evidence by the community can be used as material for bottom-up policy formulation. 2) negating kpk employee independence or weakening the kpk this motive is actually a motive that is very opposite to the pro motive in the second motive. the second pro motive states that the transfer of the status of kpk employees to asn is part of the support. however, the opposing parties are the opposite, that the transfer of the status of kpk employees to asn is part of the weakening of the kpk. this motive is clearly an issue from the community that is conveyed to the wider community. that there are efforts to weaken the kpk by transferring the status of kpk employees to asn. why is this an issue? because http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 219 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia there is no evidence of weakening at the kpk. as mentioned earlier, many civil servants are employees of state institutions such as the dpr, mpr, dpd, mk, ma, ky, and bpk. however, there has been no statement or evidence that asn who are employees of these state institutions have weakened their institutions. why is that? because the weakening depends on the authority possessed by the institution. if there is a weakening of authority, then the institution will automatically weaken it. meanwhile, those who exercise authority are members or leaders in the institution. in the dpr, mpr and dpd those who exercise the main authority are members of the dpr, mpr and dpd. in the corruption eradication commission, the kpk leadership is exercising authority. the main decision maker is the kpk leadership. so, weakening in the kpk can occur if there is a weakening of the authority of the kpk leadership. this means that the weakening of the kpk that was expressed by the public regarding the transfer of the status of kpk employees to asn until now can be said to be still an issue. policy differences in the appointment of asn between kpk employees and honorary teachers transferring status of kpk employees to asn, of course, there are various kinds of motives from the state. but what is certain is that the appointment or transfer of status has a legal regulation is government regulation no 41 of 2020. this means that it is certain that many kpk employees will change their status as asn. this condition is different from the appointment of honorary teachers. until now, there has been no similar policy regarding the appointment or transfer of honorary teacher status to asn. the fate of honorary teachers to become asn with schemes such as kpk employees is not certain. honorary teachers who want to become asn can follow the recruitment scheme for civil servant candidates (cpns) as in general. indeed, there are issues and policies related to the appointment of honorary teachers to become government employees with a work agreement (pppk). as for the policies that are like those of the kpk employees, it seems that until now there has not been any (hikam, 2020). the policy for the appointment of honorary teachers as pppk is contained in: 1) law number 5 of 2014 on state civil administration ; 2) government regulation number 49 of 2018 on government employee with work agreements management; 3) presidential regulation number 38 of 2020 on types of positions can fill by government employees with a work agreement; 4) presidential regulation number 98 of 2020 on salary and allowances for government employees with a work agreement; and http://creativecommons.org/licenses/by-nc-sa/4.0/ 220 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 5) regulation of the national civil service agency number 1 of 2019 on technical guidelines for the procurement of government employees with a work agreement. these policies are the legal basis for the appointment of pppk. indeed pppk is part of asn in accordance with law number 5 of 2014 on state civil administration or the asn law. article 1 point (1) of the asn law states that the state civil administration is a profession for civil servants and government employees with a work agreement who works for government agencies. this means that there are two types of asn there are civil servants (pns) and government employees with work agreements (pppk). regarding pppk, article 2 paragraph (1) of government regulation number 49 of 2018 on government employee with a work agreement management states that the asn position that can be filled by pppk includes: (1) jf; and (2) jpt. jf according to article 1 number (8) government regulation no. 49 of 2018 is the position of functional is a group of office which contains the function and tasks associated with the service function based on the expertise and skills specific. jpt in article 1 number (6) government regulation no. 49 of 2018 is a high leadership position is a group of high positions in government agencies. then where are the teacher positions that can be filled by honorary teachers? article 4 presidential regulation number 38 of 2020 on types of positions can filled by government employees with a work agreement or presidential regulation no. 38 of 2020 states that the jf criteria that can be filled by pppk are as follows: a. positions that competence is not available or limited in the civil service; b. positions are needed to accelerate the increase in the capacity of the organization; c. positions are needed to accelerate the achievement of objectives of strategic national; d. positions that require certification of technical of organization of the profession; e. not the position in the field of secret state, defense, security, management apparatus of the state, secretarial country, management of source power of nature, the management of the financial state, and relationships outside of the country; and f. not the position which according to the provisions of law, rule government and regulation of president shall be filled by civil servants. then in the attachment to presidential regulation no. 38 of 2020, which contains a list of functional positions that can be filled in by government employees with a work agreement, one of which is a teacher. this means that teachers in this case are included in a functional position or jf and can become pppk. the policy or legal basis regulates the appointment of honorary teachers to become asn with the type of pppk. regarding the appointment of honorary teachers to civil servants with the type of civil servants, it seems that http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 221 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia they have to follow the cpns selection with certain requirements. this condition is different from the policy of changing the status of kpk employees to asn. kpk employees who become asn are civil servants. if he is not willing to become a civil servant to become a pppk if he meets the requirements. this is stated in the corruption eradication commission regulation number 1 of 2021 on procedures for transferring corruption eradication commission employees to state civil service employees, hereinafter referred to as commission regulation no. 1 of 2021. article 5 paragraph (6) commission regulation no. 1 of 2021 states that corruption eradication commission employees who are not willing to become civil servants as referred to in paragraph (2) letter a can change to become pppk with positions adjusted to the provisions of laws and regulations. article 16 states that corruption eradication commission employees who are not willing to become civil servants as referred to in article 5 paragraph (6) are transferred to pppk after fulfilling the requirements of article 5 paragraph (2) letters b to f with structural position, functional position or executive position as stated in attachments ii to v which constitute an inseparable part of this commission regulation. this policy is certainly different from the appointment of honorary teachers as pppk. the transfer of the status of a kpk employee can become a pns or pppk. as for the appointment of honorary teachers to become pppk. if honorary teachers want to become civil servants, they can participate in the cpns selection. in this condition, of course there are differences in policies in the appointment of asn between kpk employees and honorary teachers? it seems that it is easier for kpk employees to change their status to become asn in the pns or pppk types, while honorary teachers become pppk. the question is what causes these differences in policies? are kpk employees more privileged and have a service to the state? so that it seems special related to the status change to asn, especially pns? are not honorary teachers also contributed to the state, especially in realizing one of the goals of the indonesian state to intellectual life of the nation? the state through the government should provide an explanation to the public regarding these policy differences. the government must provide rational reasons why the fate of honorary teachers is not the same as kpk employees who are converted to asn with two choices of pns or pppk. what are the factors that cause honorary teachers not to have the same foundation as the corruption eradication commission in the appointment of asn? is it the budget factor, formation factor, or there are other factors. the government must explain clearly to public so that it is known to the wider community, especially honorary teachers. the public is of course waiting for reasons from the government to issue a different policy related to changing the status of employees to asn. do not let the state appear to discriminate against various professions. the attitude of discrimination is certainly contrary to the 5th precept of the pancasila is social http://creativecommons.org/licenses/by-nc-sa/4.0/ 222 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia justice for all indonesians. if the state discriminates against various professions, it will undermine the order of the nation and state. the difference in policy analysis uses the political theory of law and the theory of justice. the political theory of law is basically a legal policy issued by the state in order to realize the goals of the state. the objectives of the state as set out in the preamble the 1945 constitution, there are four of them, namely (1) protecting the entire indonesian nation and all indonesian bloodshed; (2) promote public welfare; (3) educating the nation's life; and (4) participate in implementing world order (mahfud md, 2009). so, the legal politics related to the policy of transferring the status of kpk employees to asn and the policy of appointing honorary teachers to asn are policies issued by the state in order to realize the state's goals. the question is what is the purpose of the policy? have the policies related to the transfer of the status of kpk employees to asn and the policy of appointing honorary teachers to asn have led to realizing the goals of the country in accordance with the preamble 1945 constitution? here, it shows that there are questions related to the policy of changing the status of kpk employees to asn and the policy of hiring honorary teachers to asn in terms of legal politics. the state through the government must provide an explanation regarding the policies issued, especially the explanation based on the objectives of the country. this is so that there are no questions in the public space and the policy can get a positive response in the wider community. then the policy of changing the status of kpk employees to asn and the policy of appointing honorary teachers to asn is seen from the theory of justice. one of the theories of justice is the theory of justice from john rawls. john rawls argues that in the theory of justice, there are three important things, there are (1) social contract; (2) fairness; and (3) economic and social. first, the social contract is related to the agreement of the parties. justice in the view of john rawls is difficult to achieve if there is no agreement. the social contract aims to realize the agreement by accommodating all the interests involved in the social contract. the social contract provides guarantees for the parties who make an agreement based on reason and mind or morals. second, fairness in this case has a contractual nature. fairness can be realized by the existence of rationality, freedom and democracy. third, economic and social. justice must also be seen from an economic and social perspective. economic and social causes injustice. therefore, it is necessary to realize economic and social justice in order to realize true justice. then john rawls also provides principles in justice. there are two principles that must be realized in justice. first, equal right which relates to human rights or the existence of equal rights. justice can be realized by prioritizing human rights and equal rights. second, economic equality which provides the principle that justice can be realized if there is economic equality. human rights or equality of rights must be realized together with economic equality (anggara, 2013; dwisvimiar, 2011). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 223 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the question is whether the policy of training the status of kpk employees to become asn and the policy of appointing honorary teachers to become asn reflects justice based on justice according to john rawls. if measured from the two principles of justice according to john rawls are equality right and economic equality, the policy of transferring the status of kpk employees to asn and the policy of appointing honorary teachers to asn can be said to have not fulfilled equality right and economic equality. this is because in terms of equality rights, a policy transfer into the asn commission employee status and teacher hiring policy honorary be asn has not equally happen equality. should, if it is said to be equality right, then the policy of changing the status of kpk employees to asn and the policy of appointing honorary teachers to asn are carried out with the same policy based on equal rights. then related to economic equality is also different. the policy of changing the status of kpk employees to asn has higher economic rights when compared to the policy of hiring honorary teachers to become asn. this is because of the policy of changing the status of kpk employees to asn, kpk employees can choose to become pns or pppk. as for the policy of appointing honorary teachers to become civil servants, honorary teachers can only become pppk. if an honorary teacher is going to become a civil servant, then it must follow the general civil servant appointment policy. conclusion changing the status of kpk employees to asn in the level of issues in the public can be classified into two motives. the first is the motive that is pro towards the transfer of the status of kpk employees to asn. the two motives were contradictory to the transfer of the status of kpk employees to asn. the pro motive argued that changing the status of kpk employees to asn is nothing but so that (1) kpk employees are well coordinated (not wild); and (2) the need for asn support to the kpk and as part of strengthening the kpk. the motives that contra see the transfer of the status of kpk employees to asn are (1) controlling the kpk; and negating the independence of kpk employees or weakening the kpk. the motive is displayed in the public space as an issue. but what is certain is the policy of changing the status of kpk employees to asn. this condition is different from the policy for the appointment of honorary teachers as civil servants. honorary teachers can be appointed as asn with the status as pppk. meanwhile, kpk employees can choose to become asn as pns or pppk. this policy difference, if analyzed based on legal political theory, certainly raises questions. then when viewed from the theory of justice according to john rawls, the policy of changing the status of kpk employees to asn and the policy of appointing honorary teachers to asn are not in accordance with the principles of equality right and economic equality. http://creativecommons.org/licenses/by-nc-sa/4.0/ 224 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references akhmad, ht (2019). the status of kpk employees becomes asn, this is said menpanrb . okezone.com. https://nasional.okezone.com/read/2019/09/17/337/2106004/ status-pegawai-kpk-jadi-asn-ini-kata-menpan-rb alfian, a. (2019). kpk employee becomes asn, wiranto: he is not a illegal organization . rmol.id. https://politik.rmol.id/read/2019/09/20/403548/pegawaikpk-jadi-asn-wiranto-dia-bukanorganizations-liar anggara, s. (2013). john rawls's theory of justice: a critique of liberal democracy. jispo, 1, 1–11. dialectical. (2020). transfer of kpk employees to asn, laode syarif: affirms the form of weakening . dialeksis.com. https://dialeksis.com/nasional/pengalih-pegawai-kpkjadi-asn-laode-syarif-pertegas-bentuk-pelemahan/ dwisvimiar, i. (2011). justice in the perspective of legal philosophy. journal of legal dynamics, 11 (3), 522–531. hardani, auliya, nh, andriani, h., fardani, ra, ustiawaty, j., utami, ef, sukmana, dj, & istiqomah, rr (2020). book of qualitative & quantitative research methods (march issue). science library. harianja, aj (2020). kpk employees become asn, icw: corruption case handling will be disturbed. idntimes.com. https://www.idntimes.com/news/indonesia/axelharianja/pegawai-kpk-jadi-asn-icw-panganan-perkara-korupsi-akan-terganggu/1 hikam, ha al. (2020). starting from next year, teachers can only become pppks, not civil servants. detik finance. https://finance.detik.com/berita-ekonomi-bisnis/d5313514/mulai-tahun-depan-guru-cuma-bisa-jadi-pppk-bukan-pns kamil, i. (2021). pan-rb ministry supports kpk in strengthening functional position . kompas.com. https://nasional.kompas.com/read/2021/02/12/11414871 /kementerian-pan-rb-dukung-kpk-dalam-penguatan-jabat-functional?page=all liputan6.com. (2021). honorary teachers ask to be appointed as civil servants without. liputan6.com. https://www.liputan6.com/bisnis/read/4456189/guruhonorer-minta-diangkat-jadi-pns-tanpa-sertifikasi mahfud md, m. (2009). political law in indonesia. rajagrafindo persada. minutes, df (2020). abraham samad reveals three consequences. republika.co.id. https://republika.co.id/berita/qestyn430/abrahamsamaddisclosed-tigaconsequences-employees-kpk-so-asn radarcirebon.com. (2020). ipw encourages the status of kpk employees to become asn. radarcirebon.com. https://www.radarcirebon.com/2020/08/08/ipw-dorongagar-status-pegawai-kpk-menjadi-asn/ ricardo, r. (2019). menpan rb: if you don't want to be asn, kpk employees please resign. ceknricek.com. https://ceknricek.com/a/menpan-rb-jika-tak-ingin-jadi-asnpegawai-kpk-silakan-mundur/13276 sonata, dl (2014). normative and empirical legal research methods: typical characteristics of legal research methods. fiat justisia journal of legal studie , 8 (1), 15–35. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 39 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 1, january 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: august 2021 revised: october 2021 accepted: december 2021 how to cite: siburian, h. m. s. r. (2022). constitution formulation and amendment in indonesian and american legal system: a comparative study. journal of law and legal reform, 3(1), 3966. https://doi.org/10.15294/jllr.v3i1.49536 © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article constitution formulation and amendment in indonesian and american legal system h m sahat radot siburian central java police department (polda jateng)  radotsiburian0101@gmail.com abstract the purpose of this study is to find out the comparison of constitutional law in indonesia and the united states in terms of the development of the constitution and the mechanism for changing the constitution (uud). the method used in this research is in the form of legal research. the type of research used for this approach is normative legal research. as in the http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i1.49536 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 https://orcid.org/0000-0003-2959-0385 40 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia united states constitution, article v regulates how to amend the constitution. meanwhile, in indonesia, the mechanism for this change is regulated in article 37 of the 1945 constitution (uud). the united states and indonesia are countries that have adopted a presidential system of government with a republican form of government. in addition, the state institution authorized to make changes to the constitution of each country is the legislature. if in the united states the one who can amend the constitution is the congress consisting of the house of representatives and the senate, then in indonesia the authority to make changes to the constitution is the mpr, which includes the dpr and dpd. then, the form of the constitution used by the two countries is the same as the written constitution. the existence of the united states constitution is actually an effort to realize the principles stated in a declaration of independence (1776). the declaration is based on french philosophical and english enlightenment schools. the main purpose of the united states constitution is to guarantee the rights of the states. keywords: constitutional law; procedure; amendment; american legal system; indonesian legal system introduction the state is an integration of political power and is the main organization of political power. the state is an agency (tool) of society that has the power to regulate human relations in society and regulate the symptoms of power in society. this control is carried out based on the legal system and government intermediaries and all equipment.1 every country has a constitution which is the basic or basic rule for other laws and regulations. the constitution describes the entire state administration system of a country, namely in the form of a collection of 1 kasful anwar us. dimensions of state relations, politics and education. ta'dib, vol. xv. no. 02. edition, november 2010. p. 299 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 41 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regulations that form, regulate or govern the country.2 the legal system is the basis legal of the state, the entire structure and function of the state is determined by law. the law that applies to a country reflects a combination of the attitudes and opinions of the leadership of the state government and the wishes of the wider community regarding the law. it is a logical consequence if in a country, there is the completeness of the state and its functions which are derived from its constitution3. the term constitution comes from the french (constituer) which means to form. the use of the term constitution is meant to establish a state or to compose and declare a state.4if in france the term used, constitue is then in countries that use english as their national language, the term used constitution is, the equivalent of the term in indonesian is constitution.5. it is in accordance with what was stated by sri sumantri m6, which explains that in countries that speak english as its national language agreed upon terms constitution that in indonesian is called the constitution. in terms of the object of constitutional law, constitutional law is a legal science that has a constitutional material object and has an object of basic legal form including the constitution as (written fundamental law, written basic law) which is the highest written basic law. of the national legal order of a country.7 because in general, countries after the 19th century, had a written constitution, it is natural that the constitution can be equated with the constitution. because the basic norms that exist in today's society, for the existence of a legal certainty, have been used as written rules.8. 2 point quarterly tutik, construction of indonesian constitutional law post amendment to the 1945 constitution, jakarta : kencana, 2011, p. 90. 3 aka prima. comparison of legislative powers in indonesia and the united states. master of law in islamic university of malang : malang, 2019. p. 2. 4 wirjono prodjodikoro, principles of constitutional law in indonesia, jakarta: dian rakyat, 1989, pp. 10. 5 widodo ekatjhajana. the state of law, constitution, and democracy: dynamics in the administration of the state administration system of the republic of indonesia. jember: university press., 2015. p. 4 6 sri sumantri m, the state administrative structure according to the 1945 constitution in indonesian constitution in indonesian political life, jakarta: sinar harapan, 1993, p. 29. 7 astim riyanto. knowledge of constitutional law becomes knowledge of constitutional law. 44th year journal of law and development no. 2 april-june 2015. p. 186. 8 aldri frinaldi and nurman s. constitutional amendment and its implication on changes in state institutions. journal of democracy vol. iv no.1 th. 2005. p. 11. http://creativecommons.org/licenses/by-nc-sa/4.0/ 42 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the development of modern constitutional history equates the understanding of the constitution with the basic law not only due to the codification flow but long before since oliver crom well became lord protectorat in 1660 grundgezetz (basic law) has been equated with instruments of government, namely the guide / reference for since then, the identification of the meaning of the constitution and the constitution has the same basic principles, so that in 1687 the notion of the constitution proposed by crom well was taken over by the united states. it was then introduced to france by lafayette in 1789.9 the constitution is a framework for political life that was actually built when world civilization began, because almost all countries require a constitutional state life. the constitution is an important condition for establishing and building an independent state. once the importance of the constitution in a country, the characteristics of a constitutional government include expanding political participation, giving legislative power to the people, rejecting authoritarian government and so on.10 the constitution has a very important function for a country. in the opinion of a hamid s attamimi11 a constitution or basic law serves as a conduit grip and giver limit, regulate how the power of the state is run. at first the constitution was understood as a collection of rules and customs solely in a civilization, then gained additional meaning as a collection of provisions and regulations made by the emperors. in historical records, the emergence of a constitutional state is a long process and is always interesting to study in building a constitutional government. starting from the time of greece, namely the time of aristotle who has managed to collect so many constitutions from various countries. apart from being a regulation made by the emperor, the constitution also includes statements or opinions from legal experts/statesmen, as well as the customs of local civilizations, including laws. during the roman civilization, the constitution had a great influence until the middle ages, so the inspiration for representative democracy was sparked which was strong enough to give birth to the notion of representative democracy and 9 bintan regen saragih, amendments to the replacement and stipulation of the constitution in indonesia, bandung : cv. utomo, 2006, p. 5. 10 adnan buyung nasution, aspirasi constitutional government inindonesia.jakarta: graffiti, 1995, p. 16. 11 a hamid s attamimi, developments in the formation of laws in indonesia, jakarta: constitution press, 2014, p. 215. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 43 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia nationalism, from here as the forerunner to the emergence of modern constitutionalism in a country. in a further development of the organizers of state power by the basic law (constitutional droit), constitution or verfassüng, by carl schmit regarded as the highest political decision so that the constitution has the position or degree of constitutional supremacy in the legal order of a country12. in establishing a state at least, the following elements are required: 1. the existence of a certain area; territory is the boundary of a country covering land, sea and air. 2. people; people are a group of humans who live in a place that is opposed to other creatures13. 3. recognized governance.14 the government is a tool for the state in carrying out all the interests of its people, and is also a tool in realizing the goals that have been set.15 as a tool, the government must have permanently set boundaries called the constitution. the principle of legality and constitutional principles are characteristics that must be possessed by a legal state, while the constitution or the constitution is a form of legality because of the existence of written regulations, then constitutionally which is also the main characteristic of a state of law has been fulfilled, so that the constitution or the constitution is an absolute requirement that must be fulfilled. fulfilled in a legal country such as indonesia. while the form of the constitution in a period will describe the condition of democracy at that time as well.16 the principle in the modern constitution is actually related to the principle of limiting power which is commonly referred to as the principle of "limited government"17. the principle of "limited government" which 12 parlin m. mangunsang, conversion of the constitution as one of the means of amending the constitution, bandung: alumni, 1992, hlm. 22. 13 parlin m. mangunsang, 1992, p. 93. 14 muh. kusnardi and bintan saragih, state science. jakarta : perintis press, 1985, p. 91. 15 muh. kusnardi and bintan saragih, 1985, p. 97 16 m. agus santoso. the development of the constitution in indonesia. yustisia vol.2 no.3 september december 2013. p. 119. 17 sirojul munir. the identity of the meaning of the constitution with the constitution in the state administration system, ius journal vol ii number 5 august 2014 the study of law and justice, p. 406. http://creativecommons.org/licenses/by-nc-sa/4.0/ 44 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia according to william g. andrews "under constitutionalism, two types of limitation impinge on government power proscribed”18. it can also be formulated several functions of the constitution which are very important both academically and in practice as stated by william g. andrews: the constitution imposes restraint on government as a function of constitutionalism, but it also legitimizes the power of the government. it is the documentary instrument for the transfer of authority from the residual holders the people under democracy, the king under monarchy to the organs of state power. 19of the constitution on the one hand to throttle power as a function of constitutionalism, but on the other hand also serves as an instrument to transfer the authority of the authority of origin (both the people in the democratic system and the king in a monarchy to organ organs of power). furthermore, as a measure to study the laws of a country, including the state of indonesia as an independent country, of course it has a constitution as the basis for running the state government. the formation of the constitution in indonesia began with the promise of japan which later formed the investigation agency for preparatory work for indonesian independence (bpupki) in japanese called dokuritsu zumbi choosakai, then formed on april 29, 1945, inaugurated on may 28, 1945, started work on may 29, 1945, then the establishment of the indonesian nation legally bpupki prepare its independence, to formulate the conditions that must be met as an independent country20 the countries of indonesia and the united states have many similarities in the structure of the state. both are led by the president and the vice president, who are directly elected by the people. the division of state power is also in the united states constitutionally divided into legislative, executive, and judicial. the principle of checks and balances is also applied in the united states. and its system of government which adheres to a presidential system but differs in its application in the form of 18 jimly asshidiqie. the idea of people's sovereignty in the constitution and its implementation in indonesia, ichtiar baru-van horve, 1994, p. 13 19 william g. andrews, constitutionalism and constitutionalism, 3rd edition, new jersey: van nestrand company, 1968, pp. 9. 20 darji darmodiharjo, santiaji pancasila. surabaya: national business, 1991, p. 26. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 45 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia state, that indonesia is a unitary form, and the united states is a federal form with many states.21 the purpose of this research is to achieve the expected goals, then the goals should be in line with the problems that have been determined. the aims of this study are: to find out the comparison of constitutional law in indonesia and the united states (in terms of the development of the constitution and the mechanism for amending the constitution). method in this research, the center of the study is a comparison of constitutional law in indonesia and the united states (in terms of the development of the constitution), therefore the research form includes legal research, namely as research that finds law in concreto which includes various activities to find out what is a law that deserves to be applied in concreto to adjust something based on certain methods, systematics and thoughts, by analyzing it.22 the type of research used for this approach is normative legal research which includes research on legal principles, or also called doctrinal legal research using only secondary legal sources, namely statutory regulations, court decisions, legal theory and expert opinions. the primary material for normative legal research consists of the constitution and various official documents containing legal provisions, including notarial deeds and contracts. meanwhile textbooks, monographs, research reports and so on are secondary materials.23 in this study, what will be explored is the comparison of constitutional law in indonesia and the united states in terms of the development of the constitution and the mechanism for changing the constitution. besides that, it is known that this research is a historical study of the constitution or the constitution in force in indonesia and the united 21 haris fadillah wildan. comparison of the constitutional impeachment of the president and vice president between the republic of indonesia and the united states in realizing democracy. surakarta: eleven march university. 2010. p. 6-7. 22 soerjono soekanto, introduction to legal research, jakarta: university of indonesia, 1986, p. 43. 23 agus santoso m. study on the benefits of legal research for regional development, legal scientific journal “yuriska”, vol. 3 no. 01 fh uwgm samarinda, august 2011. p. 18. http://creativecommons.org/licenses/by-nc-sa/4.0/ 46 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia states of america. the method of research is by examining the 1945 constitution and other constitutions that have been in force in indonesia and the united states as primary legal materials and other legislation. furthermore, as secondary legal material, several literatures related to the comparison of constitutional law in the countries of indonesia and the united states of america are seen in terms of the development of their constitutions and the mechanism for amendments to the constitution, then analyze them and present them in this paper in an analytical descriptive form. result & discussion at this part, author discuss and analyze the amendment practices in indonesian and american legal system. author begins with description and explanation of constitution development in indonesia and america. i. development of the constitution in indonesia one of the experts on modern constitution kc wheare argued that apart from being understood as a term to describe the entire system of government of a country, it is also a collection of rules that shape and regulate or determine the government of the country concerned.24so as an independent country, it is impossible for indonesia to form and run a government if it does not form a constitution or a constitution first, because the constitution states the order to form a government as outlined in the preamble to the 1945 constitution, paragraph 4, which reads: "an indonesian state government that protects the entire indonesian nation and the entire homeland of indonesia and so on…" so that based on the constitutional order 24 cf strong, modern political constitutions an introduction to the comparative study of their history and existing form, london: sidgwick jackson limited, 1996, p. 11. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 47 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that has been ratified, indonesia can legally form a government according to what it aspires to. the body of the 1945 constitution also describes how and who holds the power of government, namely in article 4 paragraph (1) of the 1945 constitution both before and after the amendments state that: "the president of the republic of indonesia holds the power of government according to the constitution." besides that, the body of the 1945 constitution also mentions other powers, so that it is clear that the 1945 constitution as the constitution of the republic of indonesia contains basic provisions in running the state government, therefore in an independent country, the constitution or the constitution is indispensable. indonesia is a state of law, while the characteristics of a state of law are: 1. the principle of recognition and protection of human rights; 2. the principle of legality; 3. the principle of power sharing; 4. the principle of an independent and impartial judiciary; 5. the principle of people's sovereignty; 6. the principle of democracy; and 7. constitutional principles.25 act 1945 as constitutional in indonesia is the highest law defined constitutionally, whereas the law is a political product, because in reality every legal product is a product of politics, so that the law can be seen as a crystallization of political thought that mutual interaction among politicians 26while politics is thick with interests, therefore it is not impossible because interests can then change legal products as well, as is the case with the constitution in indonesia which is always changing and following political developments. since the proclamation of indonesian independence on august 17, 1945, and followed by the ratification of the 1945 constitution as a constitution on august 18, 1945, until now the 1945 constitution as a constitution has undergone developments and changes, this is due to the development of democratic politics which is always evolves and changes too. changing interests are also the reason for the changing of the constitution, but all of them must have the same goal, namely towards the aspired law (ius constituendum). 25 mukti fajar. type of rule of law. malang: bayumedia, 2005. p. 43. 26 mukti fajar, 2005, p. 45; agus santoso m, 2010, pp. 9-11. http://creativecommons.org/licenses/by-nc-sa/4.0/ 48 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the development of the constitution in indonesia is strongly influenced by the political system at a certain time, at first the 1945 constitution was made a constitution, but it was not enforced in the government of the united states of indonesia and during the parliamentary government system, finally the 1945 constitution as a constitution in indonesia was re-enacted until now and has undergone changes. the term constitution comes from the french language, namely constituer means to form, what is meant is to form a country, in english the term used constitution which is in indonesian is called constitution, in practice it can mean wider than the understanding of the constitution, but there are also those which equate with the constitution.27in latin, the word constitution is a combination of two words, namely cume is a reposition which means together with ……., and statuere comes from the word sta which forms the main verb stare which means to stand. on that basis, the word statuere has the meaning of making something to stand or to establish.28 the definition of constitution according to french, english and latin, in essence is an expression to form, establish/stipulate, further known as the intention of forming, compiling or declaring a country, so in other words simply, the constitution can be interpreted as a statement concerning the form and structure of a country, which is prepared before and after the establishment of the country concerned.29 in terms of terminology, the notion of a constitution is not only understood as simple as that, but can be understood more broadly, this is due to the increasingly complex problems in a country, so the approach is in understanding the constitution is not only seen from a legal point of view, especially constitutional law, but must also be understood from the point of view of political science. it is therefore not surprising that some constitutions will be more politically charged than juridical. furthermore, regarding the term constitution, the scholars and scientists of administrative law are of the opinion that the constitution is the same as the basic law, on the basis that all legal regulations must be 27 dahlan thaib, constitutional theory and law. jakarta: raja grafindo persada, 2008. p. 7. 28 dahlan thaib, 2008. 29 jazim hamidi. 2009. comparative constitutional law. jakarta: achievement of the publisher library. p. 87. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 49 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia written, and the written constitution is the basic law. there are also those who argue that the constitution is not the same as the basic law, on the basis that not all important matters must be contained in the constitution, but only basic matters. there are no principal differences in the opinions of the two groups, because the first group equates the term constitution with the constitution, while the second group looks at the material contained in the constitution or the basic law.30so that the difference is only an important or unimportant issue that must be contained in the constitution or the basic law, therefore the difference is not a principle in understanding the constitution. based on the definition of the constitution according to cf strong, written by jazim hamidi, there are three elements contained in the constitution, namely: 1. principles regarding the power of government; 2. principles concerning the rights of citizens; and 3. principles regarding the relationship between citizens and the government31. the constitution in general has formal and material properties. constitution in formal sense means the constitution is written in a constitution of a country, in this view a new constitution substantially if the constitution has been shaped written and enacted, such as 1945, while the constitution material is a constitution if people look at in terms of its contents, the content of the constitution basically concerns matters that are basic or essential for the people and the state.32 the nature of the written constitution is stated in the form of the constitution of a country, while the constitution besides containing legal aspects also contains more political aspects, namely politics at a certain period of a country. a country always experiences political developments, thus the constitution also always develops in accordance with the political development of a nation, as well as indonesia has experienced constitutional developments in line with political developments since independence. certain political configurations will affect the development of a nation's state administration, as well as in indonesia, which has experienced political developments for several 30 dasril radjab. indonesian constitutional law. jakarta: rineka cipta. 2005. p. 45. 31 jazim hamidi, 2005, p. 88 32 tutik quarterly points. pokok the basic law of the state.jakarta: achievement of the publisher library. 2006. p. 2. http://creativecommons.org/licenses/by-nc-sa/4.0/ 50 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia periods, will certainly affect the development of the indonesian state administration. the development of the state administration is also in line with developments and changes to the constitution in indonesia as described in the following discussion. a. the period from 18 august 1945 to 27 december 1949, the period when the 1945 constitution came into force during the period when the republic of indonesia was first formed, the first applicable constitution was the 1945 constitution drafted by bpupki, then ratified by ppki on 18 august 1945. according to the 1945 constitution, sovereignty is in the hands of the people and is carried out by the mpr which is the highest state institution. at this time, it was proven that the constitution had not been implemented in a pure and consistent manner, the state administration system was changing, especially when the vice president's edict was issued. x dated october 16, 1945, which stated that the central indonesian national committee (knip) prior to the formation of the mpr and dpr was entrusted with legislative duties and stipulates the gbhn with the president. knip together with the president stipulate laws, and in carrying out their daily tasks formed a workers' body which reports to the central national committee. 33 b. the period from december 27, 1949 to august 17, 1950, was the validity period of the constitution of the republic of the united states of indonesia (ris) in 1949 the indonesian constitution changed from the 1945 constitution to the constitution of the united states of indonesia (uud ris), then the form of the unitary state of the republic of indonesia was changed to become a united states (federal). the sovereign power of the united states of indonesia is exercised by the government together with the dpr and the senate. the presidential system of government changed to parliamentary, in which the responsibility for government policy was in the hands of the ministers, both jointly and individually responsible to the parliament (dpr). however, the constitution of the ris has not been 33 dasril radjab, 2005, p. 67. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 51 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia implemented effectively, because state institutions have not been formed in accordance with the mandate of the ris constitution. c. the period from 17 august 1950 to 5 july 1959 was the period for the 1950 provisional constitution (uuds 1950) the form of state in this constitution is a unitary state, namely a single-composed state, meaning that there is no state within the state as is the case with a union state. the provisions of the unitary state are affirmed in article 1 paragraph (1) of the 1950 constitution which states that an independent and sovereign republic of indonesia is a democratic and unitary state of law. the implementation of this constitution is the incarnation of the unitary state of the republic of indonesia based on the proclamation of august 17, 1945, and it also carries out autonomy or the division of authority to regions throughout indonesia. the government system is a parliamentary system of government, because executive tasks are accountable to the ministers either jointly or individually to the dpr. the head of state as the head of government, the head of state is considered to have never made a mistake, then if the dpr is deemed unrepresentative, the president has the right to dissolve the dpr.34 d. the period from july 5, 1959 to october 19, 1999, was the validity period of the 1945 constitution during this period the 1945 constitution was re-enacted on the basis of a presidential decree dated july 5, 1959. the re-enactment of the 1945 constitution meant changing the state administration system. the president who previously only served as head of state then also functions as head of government, assisted by cabinet ministers who are responsible to the president. the government system that was previously parliamentary has changed to a presidential system. in practice, it turned out that the 1945 constitution was not fully enforced until 1966. changes in national leadership occurred during this period, from president soekarno to suharto, which was originally based 34 dasril radjab, 2005, p. 202. http://creativecommons.org/licenses/by-nc-sa/4.0/ 52 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia on the march eleventh order, then a second general election was held in 1972. started, the state administration system was based on the constitution, general elections were held every 5 (five) years, national development was going well, but on the other hand there was an extraordinary dictatorship with reasons for the implementation of national stability and economic development, so that the democratic system desired by the 1945 constitution not going well. the existence of political parties is limited to only three parties, so that democracy seems barren, there is no freedom for the people who want to express their will, even though the pillars of state power such as the executive, legislative and judiciary already exist but their role is not fully, political will requires the power of the state to be in the hands of one person namely the president, leading to large demonstrations in 1998 with demands for reform, which led to a change of national leadership. e. the period from 19 october 1999 to 10 august 2002, the validity period of the amendments to the 1945 constitution the form of state in this constitution is a unitary state, namely a single-composed state, meaning that there is no state within the state as is the case with a union state. the provisions of the unitary state are affirmed in article 1 paragraph (1) of the 1950 constitution which states that an independent and sovereign republic of indonesia is a democratic and unitary state of law. the implementation of this constitution is the incarnation of the unitary state of the republic of indonesia based on the proclamation of august 17, 1945, and it also carries out autonomy or the division of authority to regions throughout indonesia. as an implementation of the demands for reform that erupted in 1998 is to make changes to the 1945 constitution as the basis of the republic of indonesia. the legal basis for amendments to the 1945 constitution is article 3 and article 37 of the 1945 constitution which is carried out by the mpr in accordance with its authority, so that the values and principles of democracy in the unitary state of the republic of indonesia appear to be implemented properly. in making changes to the 1945 constitution, the mpr stipulates five agreements, namely: 1. not changing the preamble to the 1945 constitution of the republic of indonesia; 2. continue to maintain the unitary state of the republic of indonesia; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 53 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. strengthening the presidential system of government; 4. the explanation of the 1945 constitution of the republic of indonesia which contains normative matters will be included in the articles (stem); and 5. make changes by way of addendum. in this period the 1945 constitution was amended for the fourth time, thus affecting the process of democratic life in the state of indonesia. along with the amendments to the 1945 constitution which were held from 1999 to 2002, the official text of the 1945 constitution consisted of five parts, namely the 1945 constitution as the original text plus the first, second, third and fourth amendments to the 1945 constitution, so that it became the fundamental basis of the state. in carrying out the life of the nation and state. f. the period of august 10, 2002 until now is the validity period of the 1945 constitution, after undergoing changes whereas after undergoing changes for the fourth time, the 1945 constitution is the fundamental basis of the republic of indonesia to deliver the life of the nation and state for the indonesian people, of course democratic life is even more guaranteed, because the amendments to the 1945 constitution are carried out in a careful, unhurried manner. and by using sufficient time, unlike what bpupki did when drafting the constitution at that time, which was very hasty and was still under japanese colonial rule. at first the idea to implement changes/amendments to the 1945 constitution was not accepted by the existing political forces, even though the debate about amendments to the 1945 constitution had begun to warm up in the 1970s. at the time of reform, the main agenda was implementing changes to the 1945 constitution, which was held at the 1999 mpr general session and succeeded in establishing the first amendment to the 1945 constitution, followed by the second, third and fourth amendments. in the past, every idea to amend the 1945 constitution was always considered wrong and considered to have a tendency to subversion of the state and http://creativecommons.org/licenses/by-nc-sa/4.0/ 54 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia government, but with the first amendment in 1999, the myth about the sanctity and sacredness of the constitution collapsed.35 the nuances of democracy were more secure during the 1945 constitution after undergoing changes. the existence of parallel state institutions, namely executive institutions (government), legislative institutions (mpr, which consists of dpr and dpd), judicial institutions (ma, mk and ky), and auditive institutions (bpk). the position of these state institutions has a clearer role than in the past. the term of office of the president is limited to only two terms, which are directly elected by the people. the implementation of regional autonomy is described in more detail in the 1945 constitution after the amendment, so that development in all fields can be carried out evenly in the regions. regional head elections are carried out democratically, then further regulated in the law concerning direct regional head elections, so that the people can determine democratically the choice of leaders in accordance with the will of the people. guarantees for human rights are guaranteed to be better and described in more detail and the 1945 constitution, so that democratic life is more secure. the existence of political parties is not shackled as in the previous period, there is freedom to establish political parties based on their will as long as they do not conflict with pancasila and the 1945 constitution, as well as holding honest and fair elections.36 ii. development of the united states constitution kc wheare explained that while the constitution is understood as a set of rules, there is a connotation or understanding that what is meant is the constitution in a narrow sense, which is focused on written rules that are used as the basis for the administration of government. by setting aside unwritten rules in the administration of a country's government, for this 35 muh mahfud, md. democracy and constitution in indonesia, studies on political interaction and state administration, jakarta : rineka cipta. 2003. p. 176. 36 muh mahfud, md, 2003. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 55 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia reason it must be emphasized that, in the development of situations and conditions that occur in the midst of society. 37 the constitution must be able to accommodate unwritten rules, such as habits that live and develop in society, which can be used as a reference/basic in the administration of government38 the written constitutional law regulations in the sense of a documentary constitution have only existed since the united states constitution of 1787. furthermore, other modern countries have so far made the 1787 united states constitution a model for their country's constitution. for example, french constitution 1791, spanish constitution 1812, norwegian constitution 1814, dutch constitution 1814, italian constitution 1848, swedish constitution 1866, swiss (switzerland) constitution 1874, ottoman constitution 1876, japanese constitution 1889, russian constitution 1918, weimar constitution germany 1919, finland constitution 1919, austrian constitution 1920, czechoslovakia constitution 1920, hungarian constitution 1920, yugoslav constitution 1921, belgian constitution 1921, soviet union constitution 1924, turkish constitution 1924, lebanese constitution 1926, portugal constitution 1933, indonesian constitution 1945 , the constitution of burma 1947, the constitution of west germany 1948, the constitution of sri lanka 1948, and the constitution of india 1950. modern countries that may be born later are also likely to make the united states constitution of 1787 as a model constitution in their country.39 furthermore, with regard to the united states constitution, the 1987 united states constitution is the oldest written constitution still in force today. the 18th-century statesmen who met in philadelphia the adherents of the concept of the balance of power in the trias politica from charles de secondat baron de labriede et de montesquieu (1689-1755). this principle was supported by the experience of the 13 british colonies in the north american continent and reinforced by the teachings of john locke (16321704) which was known to most delegates. these influences give rise to the belief that three branches of government must be established which are equal and parallel, namely legislative power, executive power, and judicial 37 kc wheare, modern constitution, london: oxford university press, 1975, p. 1. 38 sayuti una, shifting power of regional government according to the indonesian constitution (study on the distribution of power between dprd and regional heads after the re-enactment of the 1945 constitution), yogyakarta: uii press, 2004, p. 41. 39 astim riyanto., pp. 187. http://creativecommons.org/licenses/by-nc-sa/4.0/ 56 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia power. the three powers must be so balanced that no one branch of power is more powerful than the other.40 the thought of constitutional law as a rule that forms the state has continued to roll from the days of ancient greece to the time of the roman empire to the middle ages to the era of rationalism to the modern era and then to the postmodern era. constitutional law in the material sense and in the sense of unwritten constitution/non-documentary constitution in general ended when the united states constitution was ratified in 1787. the united states constitution as a modern constitution was born as a followup impact of the start of the modern era since the united states revolution of 1776 and was in line with the french revolution 1789 which was followed by the russian revolution of 1917 and later the indonesian revolution of 1945. since the united states constitution was ratified/enacted, constitutional law was born as a rule in the sense of written constitution/documentary constitution. the birth of the written constitution/documentary constitution does not mean that the unwritten constitution/non-documentary constitution is completely lost, but in some countries the unwritten constitution/non-documentary constitution still adheres to it such as in england, sweden, canada, new zealand, spain, israel, and bhutan.41 in the 1770s, the thirteen british colonies comprised two and a half million inhabitants. these colonies grew and developed rapidly, and developed their own political and legal systems. however, the development of the british colonies was felt to be unfair to the native americans, as many of them died from disease, and they lost their country. the british parliament enforced its authority over these colonies by imposing new taxes, which americans deemed unconstitutional because they were not represented in parliament. the heated conflict culminated in a full-blown war that began in april 1775. after the american revolution, the colonies declared independence from the united kingdom of great britain on july 4, 1776 and founded the united states of america. the thirteen colonies in the north american continent which later became the states of the united states of america (in 2009) totaling 50 states declared their independence through the declaration of independence from the british empire in 40 astim riyanto., p. 201. 41 astim riyanto., pp. 187-188. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 57 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia philadelphia on july 4, 1776. this date was later used as the united states' independence day.42 furthermore, in the united states there is a struggle for the recognition of human rights such as the declaration of the bill of rights in 1776 in the state of virginia. march 1, 1781 declared the entry into force of the articles of the confederation. on september 17, 1787, the constitution of the republic of the united states of america was ratified in 1787 which came into force on july 2, 1789. thus, from the founding of the republic of the united states of america and the ratification/enactment of the constitution of the republic of the united states of america in 1787, there was a gap of about 11 years. in a short time, less than 6 years the weakness of the confederation could be felt. for this reason, a united states constitution is needed. then, in february 1787 the continental congress which was the legislature of the new state sent an instruction to the states of that, they send their delegation to philadelphia to revise the articles of confederation. the new document, namely the constitution (uud) or the constitution, was completed on september 17, 1787 and officially accepted on march 4, 1789. the preamble to the constitution states: we the people of the united states, in order to form a more perfect union, build justice, guarantee peace in the country, preparing for the common defense, promoting the common good and safeguarding the gift of liberty for ourselves and our children, actually ordained and established this constitution for the united states of america.43 the united states constitution is a relatively simple document that is the supreme law of this country. this additional expression is used with the intention that if a state constitution or a state law approved by its legislature or by the national congress is in conflict with the federal constitution, the constitution or the act becomes invalid.44the decisions given by the supreme court of the united states have confirmed and strengthened the doctrine of the supremacy of the constitution. the final authority remains with the people of the united states who can make changes to the basic law if they wish, either by amending the constitution 42 blum, john m.; william s. mcfeely, edmund s. morgan, arthur m. schlesinger, jr., kenneth m. stampp, and c. vann woodward. the national experience: a history of the united states (6th ed.). harcourt brace jovanovich. 1985. p. 91. 43 astim riyanto., p. 202. 44 blum, et.al., 1985, pp. 101-103 http://creativecommons.org/licenses/by-nc-sa/4.0/ 58 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia or at least in theory by drafting a new constitution. however, the people's authority is not directly implemented. major changes are made in the first two years after the constitution is ratified/enacted. during that period the first 10 amendments known as the bill of rights were added to the constitution. the ten amendments were approved by congress as a unit in september 1789 and were passed by 11 states towards the end of 1781. to date, 27 amendments have been made to the united states constitution/constitution of 1787. excellence the constitution/ constitution in regulating the government has made the united states of america a stable and developed country.45 iii. comparison of the development of the indonesian constitution with the united states according to historical records, the state of indonesia made amendments 4 times, while the united states made amendments 27 times. for indonesia, the procedure for changing the constitution is regulated in article 37 of the 1945 constitution after the amendment.46 in his book, prof. satya arinanto stated that the expanded committee elected sukarno and hatta as respectively president and vice resident of the republic of indonesia. it was appointed a commission of seven to finalize the national constitution to finalize the national constitution, which had been drafted in the month before the japanese capitulation. this proves that indonesia already has its constitution even in the early days of its independence.47 45 astim riyanto., p. 203. 46 megawati. comparison of the indonesian constitution with the united states based on state forms and government systems https://justitiaindonesia.com/perbandingan-negara-indonesia-dengan-negaraamerica-series-constitutional comparison%20indonesia%20with,meli did%20amendments%20%2027%20 times. 2020. retrieved april 26, 2021 hours 10:51 pm. 47 satya arinanto, constitutional law and democratization in indonesia, jakarta: publishing house faculty of law university of indonesia, 2000, p. 141. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 59 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia since it was amended four times in 1999-2002, the constitution has changed the state administration structure. thus, there is no longer a supreme institution like the mpr, and indonesia has now adopted a more effective presidential system. for the united states, amendments 1-10 are known as the declaration of rights. the last amendment was made in 1992. the existence of the united states constitution is actually an attempt to realize the principles stated in a declaration of independence (1776). the declaration is based on french philosophical bases and british enlightenment schools. main objectives the motto of the united states of america "e pluribus unum" which means "from many, to one".48 according to bagir manan, some of the main factors that determine the renewal of the constitution include various reforms of the situation in society. the encouragement of democracy, the implementation of the concept of the welfare state, changes in economic patterns and systems due to industrialization, advances in science and technology can become the forces driving for the renewal of the constitution.49 furthermore, it is known that the state of indonesia is a unitary state in the form of a republic with a presidential system of government. the united states of america is a federal/union with a presidential system of government. the presidential system is a government system where the president's job is as head of state as well as head of government. in carrying out his duties, the president is assisted by the vice president together with ministers who are directly responsible to the president.50 a country is said to be a unitary state because the state is single or does not have states, and the power to regulate all its areas is in the hands of the central government. in a unitary state there is only one constitution, one head of state, one council of ministers (cabinet), and one parliament. an example is indonesia. while the union state is a country consisting of several states, each of which is not sovereign. each state has a head of state, parliament, council of ministers (cabinet) in the interests of the state. in the united states there are parts of the sovereign state called the federal state.51 the basic constitutional concept of the united states federal system of government is that the national government only has powers mandated by the constitution. all other powers not delegated to the federal 48 megawati. https://justitiaindonesia.com. 49 megawati. https://justitiaindonesia.com. 50 megawati. https://justitiaindonesia.com. 51 megawati. https://justitiaindonesia.com. http://creativecommons.org/licenses/by-nc-sa/4.0/ 60 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia government will continue to be run by the states. at the federal level, presidential and vice-presidential elections are held every 4 (four) years. likewise, the separation of powers between the legislature, executive, and judiciary, both regarding the implementing organs and regarding the function of power, also limits each other, namely by establishing a mechanism of checks and balances so that the three have a balanced position.52 in indonesia, the legislature has the task and authority to make or formulate a constitution in a country. in addition, the legislature is also defined as a legislator's institution, which if in indonesia this institution is run by the dpd (regional representative council) dpr (people's representative council, and mpr (people's consultative assembly). the authority to implement or implement the law. the executive body includes the president and vice president and the ministers who assist them. the third is the judiciary which functions to maintain the implementation of the law. the judiciary consists of the supreme court (ma), the constitutional court (mk) and the judicial commission (ky). in the legislature, the united states does not recognize the term mpr as in indonesia. those running the legislature in america are members of the senate (representatives from the states) and the house of representatives (dewan perwakilan rakyat). regarding the supreme court in the united states judiciary, there are two, namely the american ma the united states (supreme court of the united states) and the state (supreme courtsupreme court). both have different tasks, namely the state supreme court only handles cases submitted by the lower courts, namely appeal cases through the state high courts (appellate courts) and state (courtstrial courts). meanwhile, the united states supreme court examines cases submitted by lower courts, namely theus court of appealsand the us district court.53 iv. mechanisms for amendment to the constitutions of the state of 52 megawati. https://justitiaindonesia.com. 53 megawati. https://justitiaindonesia.com. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 61 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia indonesia and the united states of america 1. indonesia amendments to the 1945 constitution article 37 states, to amend articles of the constitution, the session of the mpr must be attended by at least 2/3 of the total members of the mpr. decisions to amend these articles are made with the approval of at least fifty percent (50%) plus one member from all members of the mpr. achieving a quorum according to the new article 37, it is calculated based on the total number of mpr members, not based on the number of members present at that time, as regulated in the old article 37. the number of members present may only be 2/3 of the total number of mpr members. so, according to the old article 37, the approval of 2/3 of 2/3 of all members of the assembly is the same as 44.44 percent of the total number of members.54 this means that it is still below 50%, meaning that the number is less than the 50% plus one of all mpr members, as stipulated in the new article 37.55amendments to the 1945 constitution article 37 states, to amend articles of the constitution, the mpr session must be attended by at least 2/3 of the total mpr members. decisions to amend these articles are made with the approval of at least fifty percent (50%) plus one member from all members of the mpr. achieving a quorum according to the new article 37, it is calculated based on the total number of mpr members, not based on the number of members present at that time, as regulated in the old article 37. the number of members present may only be 2/3 of the total number of mpr members. so, according to the old article 37, the approval of 2/3 of 2/3 of all members of the assembly is the same as 44.44 percent of the total number of members. this means that it is still below 50%, meaning that the amount is less than the 50% plus one from all mpr members, as stipulated in the new article 37.56 54 farid arista marzuk. comparison of the mechanism of amendment to the constitution between indonesia and the united states. jom faculty of law volume iii number 2, october 2016, p. 9. 55 farid arista marzuk, 2016. 56 farid arista marzuk, 2016, p. 147. http://creativecommons.org/licenses/by-nc-sa/4.0/ 62 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. united states of america a. proposed amendments to the national convention in accordance with the provisions of article v of the united states constitution, to go through this first procedure there must be a request from at least 2/3 of the state representatives. the application was submitted to the united states congress. this congress will call the session of the national convention. from this fact it can be seen that congress cannot convene a session of the national convention on its own initiative. on the other hand, 2/3 of the state house of representatives 57cannot convene the national convention without congressional intervention. it should be noted that congress cannot reject a 2/3rd application from the state house of representatives. 57 once the national convention has been established, the body will make proposals for amendments to the constitution. in the event that the national convention has been completed with the proposed amendment to the constitution, it will then be submitted to the state convention established by each state.58 b. proposed amendments to the national convention the second amendment proposed by members or members of the united states congress. it should be stated that in submitting the proposal for change, no specific form has been determined. in other words, several members can submit a joint resolution, or it can be in the form of a law. it should be stated that to amend the constitution, it cannot be done through statutory powers but through special powers regulated in article v of the constitution. after a joint resolution on the above amendments is submitted to congress and read twice, it is then submitted to a commission.59 there are three possibilities for this matter: first, and this is what the resolution or draft law is usually discussed in the judicial commission. the second possibility is that a joint resolution containing changes to the constitution can also be discussed in the relevant commission with the material contained in the resolution. if the resolution is so important and it is a third possibility, it can be submitted to a commission specially set up 57 farid arista marzuk, 2016, p. 123. 58 farid arista marzuk, 2016, p. 124. 59 farid arista marzuk, 2016. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 63 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia by congress. in general, most of the proposed amendments to the constitution have been rejected in this commission. a new draft amendment to the constitution can be accepted by congress if it is approved by at least 2/3 of the members of congress. the question arises, what is meant by this 2/3.60 in fact, it is interpreted by congress 2/3 of all its members. this interpretation is supported by the federal supreme court. with the acceptance of the proposed draft, it does not mean that there will be changes to the united states constitution. the congressional decision still has to be communicated to the states. generally, after congress has accepted and approved the proposed amendment, the decision is communicated by the united states secretary of state to each state governor, who then resumes the house of representatives.61 it is in this house of representatives that the proposed amendment is discussed and decided whether to accept or reject it. each state house of representatives is free to set such proposed changes on its agenda. however, as an instrument of federal power and based on the constitution, each state house of representatives is bound by article v of the constitution of the united states.62a proposed amendment to the constitution is accepted if it is approved by at least 3/4 of the house of representatives of the total number of states in the united states.63 references a hamid s attamimi, (2014). developments establishment act on indonesia, jakarta: constitutional press. adnan buyung nasution, (1995). aspirasi constitutional government inindonesia.jakarta: graffiti. agus santoso m. study on the benefits of legal research for regional development, legal scientific journal “yuriska”, vol. 3 no. 01 fh uwgm samarinda, august 2011. 60 farid arista marzuk, 2016. 61 farid arista marzuk, 2016, p. 126. 62 farid arista marzuk, 2016. 63 farid arista marzuk, 2016. http://creativecommons.org/licenses/by-nc-sa/4.0/ 64 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia aldri frinaldi and nurman s. constitutional changes and implications for changes in state institutions. journal of democracy vol. iv no.1 th. 2005. anonim. 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(2009). comparative constitutional law. jakarta: achievement of the publisher library. jimly asshidiqie. the idea of people's sovereignty in the constitution and its implementation in indonesia, jakarta: ichtiar baru-van horve, 1994. kasful anwar us. dimensions of state relations, politics and education. ta'dib, vol. xv. no. 02. edition, november 2010. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(1) 2022 65 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia kc wheare, modern constitution, london: oxford university press, 1975. muh. kusnardi and bintan saragih, (1985). state science. jakarta: perintis press. m. agus santoso. the development of the constitution in indonesia. yustisia vol.2 no.3 september december 2013. megawati. perbandingan konstitusi negara indonesia dengan negara amerika serikat berdasarkan bentuk negara dan sistem pemerintahan https://justitiaindonesia.com/perbandingan-konstitusi-negaraindonesia dengan-negara-amerika-serikat-berdasarkan-bentuknegara-dan-sistem pemerintahan/#:~:text=perbandingan%20perubahan%20konstitusi% 20ind onesia%20dengan,melakukan%20amandemen%20sebanyak%2027% 20kal i. 2020. diakses tanggal 26 april 2021 jam 10.51 wib. muh mahfud, md. 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(2005). type of rule of law. malang: bayumedia. parlin m. mangunsang, (1992). constitutional conversion as a means of amending the constitution, bandung: alumni. satya arinanto, constitutional law and democratization in indonesia. jakarta: publishing house faculty of law university of indonesia, 2000. sayuti una, (2004). shifting the power of regional government according to the indonesian constitution (study on the distribution of power between dprd and regional heads after the re-enactment of the 1945 constitution), yogyakarta: uii press. sirojul munir. the identity of the meaning of the constitution with the constitution in the state administration system, journal of the study of law and justice. ius vol ii number 5 august 2014 soerjono soekanto, (1986). pengantar legalresearch,jakarta: university indonesia. sri sumantri m, (1993). the constitutional structure according to the 1945 constitution in the indonesian constitution in indonesian political life, jakarta: sinar harapan. taufiqurrohman syahuri, (2014). hukum konstitusi (proses dan prosedur perubahan uud di indonesia 1945-2002 serta perbandingannya dengan konstitusi negara lain di dunia, bogor: ghalia indonesia. http://creativecommons.org/licenses/by-nc-sa/4.0/ 66 journal of law & legal reform volume 3(1) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia tutik quarterly point, (2011). construction of indonesian constitutional law post amendment to the 1945 constitution, jakarta: kencana. widodo ekatjhajana. (2015). negara hukum, konstitusi, dan demokrasi: dinamika dalam penyelenggaraan sistem ketatanegaraan republik indonesia. jember: jember university press. william g. andrews, constitutionalism and constitutionalism, edisi 3, new jersey: van nestrand company, 1968. wirjono prodjodikoro, (1989). asas-asas hukum tata negara di indonesia, jakarta: dian rakyat. acknowledgment none funding information none conflicting interest statement all authors declared that there is no potential conflict of interest on publishing this article. publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. about author(s) ipda h.m. sahat radot siburian, s.tr.k is a graduate of the indonesian national police academy. in 2021, served in unit iii of corruption crimes in the investigation field at the central java provincial police, central java police report pati. http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cd18052085 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(4) 2020 605 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article conflicting interests of legislators in india: an exploratory study deb zyoti das1, bhanu singh rohilla2 1,2 himachal pradesh national law university, india  debdas350@gmail.com cited as das, d. z., & rohilla, b. s. (2020). conflicting interests of legislators in india: an exploratory study. journal of law and legal reform, 1(4), 605-616. https://doi.org/10.15294/jllr.v1i4.39867 abstract law governs society and evolves with it as time progresses. the process of evolution is a complex, continuous and an integrated cycle of different, moving spheres of life. with the evolution of society, there arises a need for laws to govern the new behaviors generated by such evolution. hence, law-making bodies such as parliaments of countries and states move and aspire to regulate; and mold the behavior of their subjects and citizens in order to avoid, resolve and suppress chaos and maintain the proper and smooth functioning of the society at hand. persons involved in the lawmaking process are also party to the society and hence influenced by their circles and spheres of society. the interests of a particular legislator could be varied enough to put a significant effect on the piece of legislation he is working on that will, in future most probably guide the whole nation. with the party based indian politics, it becomes more difficult for a legislator to serve the interests of the nation before the command and interests of the political party that the legislator represents. it is thus imperative for us to understand the difficulties and constraints that a legislator face when he drafts or prepares legislation or is involved in a law-making process. this article explores and describes the scenario in india elaborately. keywords: conflict of interest; legislator; political party; indian politics journal of law and legal reform (2020), 1(4), pp. 605-616. doi: https://doi.org/10.15294/jllr.v1i4.39867 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 15 june 2020, revised: 20 june 2020, accepted: 8 july 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i4.39867 https://doi.org/10.15294/jllr.v1i4.39867 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 606 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 605 table of contents ………………………………………………………….. 606 introduction …………………………………………………………………. 606 indian setup ……………………………………………………………………. 607 i. reading 1 ………………………………………………………………….... 607 ii. reading 2 ……………………………………………………………………. 607 iii. reading 3 ……………………………………………………………………. 608 legislative drafting & legislators ……………………………….. 608 conflict of interests ……………………………………………………... 610 conclusion …………………………………………………………………….. 615 references ……………………………………………………………………... 616 introduction law governs society and evolves with it as time progresses. the process of evolution is a complex, continuous and an integrated cycle of different, moving spheres of life. with the evolution of society, there arises a need for laws to govern the new behaviors generated by such evolution. hence, law-making bodies such as parliaments of countries and states move and aspire to regulate; and mold the behavior of their subjects and citizens in order to avoid, resolve and suppress chaos and maintain the proper and smooth functioning of the society at hand. persons involved in the law-making process are also party to the society and hence influenced by their circles and spheres of society. the interests of a particular legislator could be varied enough to put a significant effect on the piece of legislation he is working on that will, in future most probably guide the whole nation. with the party based indian politics, it becomes more difficult for a legislator to serve the interests of the nation before the command and interests of the political party that the legislator represents. it is thus imperative for us to understand the difficulties and constraints that a legislator face when he drafts or prepares legislation or is involved in a law-making process. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 607 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia indian setup it is a well-known fact that laws are made for the social needs, improvement of society and to remove illegal practices and other social problems. in india, our constitution provides the law-making procedure in the indian parliament or legislation. the primary function of the parliament is to make, new laws and to revise or abrogate existing laws. however, sometimes the laws are subject to judicial review. the process of drafting legislation gets started with the need for any new law or need of amendment in any existing law. it may be done by the government or by people’s groups who are living in society and who can swell public awareness in regards to the entail of law. after the requirement of law, the concerned ministry drafts a ‘bill’ which is containing the desired law. this bill is disseminated to other relevant ministries for modifications and changes they deem fit in it. it is also induced to the public to take comments from the people. the draft is reappraised to subsume any modifications or changes and is then whetted by law ministry, after that it presented to the cabinet for approval. when the cabinet approves the bill, it is introduced in either house of the parliament. now there are 3 readings of the bill in both the houses, i.e., lok sabha and rajya sabha. i. reading 1 in first reading, a bill is introduced in parliament. maybe the intro is opposed and consider for the voting in the house, but it very rarely happens that any debate is taken place during this stage. however, members may oppose the bill if there is any sufficient ground to oppose. for example, if the bill openly violates the constitution of india. ii. reading 2 after the introduction of the bill, the presiding officer in lok sabha and chairman in rajya sabha, may refer the bill to the standing committee for examination and take suggestions from that committee like committee of environment and forest has invited suggestions on civil liability on nuclear damage bill, 2010. then it may be sent to the joint select committee of the two houses and circulated for eliciting public http://creativecommons.org/licenses/by-nc-sa/4.0/ 608 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia opinion. during second reading members may amend the bill based on standing committee recommendations. however, the government is not bound to accept recommendations. iii. reading 3 during third reading (passing) the house votes on the redrafted bill. if passed in one house, it is sent to the second house where it goes through second and third readings again. the other house may reject the bill and may the deadlock happened. conditions of deadlock, may be happened cause of several reasons, such as: 1) one house passed the bill, and the other rejected.1 2) when one house passes the bill and other houses also passed but with an amendment and that amendment is rejected by the first house.2 3) when more than six months have elapsed from the date on which the bill was received by the other house without the bill being passed by it.3 4) when the deadlock happens, a joint sitting of both the houses is organised, and majority votes dissolve that.4 after both houses of parliament pass a bill, it is sent for the president’s assent. he has the right to seek info about the bill and also have the power to return the bill to the parliament for reconsideration. however, the president can send a bill for reconsideration only one time. if both the houses of the parliament passes the bill again, the president is bound to give his assent.5 after assenting of the president, the bill is notified as an act and brought into force. the rules and regulations are made by executives who implement the act and are tabled in parliament for consideration. also, if any demerit seems in the act, then it is sent for judicial review. legislative drafting & legislators legislative drafting is a difficult, delicate art. it is the art of expressing in concise and clear language the ideas of other people. it is difficult enough to express one’s own 1 article 108 (1) a 2 article 108 (1) b 3 article 108 (1) c 4 article 108 5 article 111 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 609 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ideas. it is much more difficult to express other people’s ideas. the difficulty is all the greater when there is a doubt about the person whose ideas one is required to express. whose ideas do a legislative enactment express? controversy, if not confusion, commences with this question. are they the ideas of the minister-in-charge of a particular bill or the officer of the ministry who instructs the draftsman or the collection of heterogeneous people constituting the legislature? purists would at once point to the legislature. in legal theory, a statute always expresses the intention of the legislature. however, like all theories, this one is far removed from facts. it becomes crystal clear if we understand the mechanism of modern law-making. how is a bill prepared? a legislative proposal is first conceived in the secretariat. sometimes the idea of the proposal emanates from the minister himself. the proposal is examined in the administrative ministry, but it is very rarely that, as required by the rules, a detailed memorandum of the proposal is prepared. generally, the officer in the administrative ministry concerned with the legislative proposal rushes to the draftsman and asks him to produce a bill. the draftsman insists upon precise instructions, but there is no time for such petty details; oral discussions follow. the draftsman produces some kind of bill, hoping that he has correctly understood the instructions given to him. his instructors harbor the same hope. the bill is then rushed through the legislature for want of time. sometimes it emerges from the legislature in practically the same form in which it was introduced. the rule that law expresses the intention of the legislature applied in the good old leisurely days when laws were few, and the legislators had the time to scrutinize the laws carefully before passing them. in these days, laws are not made. they are manufactured. the draftsman of today is supposed to prepare the maximum of laws within the minimum of time. to express the intention of some anonymous, mythical person whose identity is not easily established and to express that intention in language so clear that not only a reasonable man understands but a malicious man cannot misunderstand it. says one judge, “this statute is so confused that it could not have been more confused, if confusion had expressly been aimed at.” lord macmillan said about one section of the trademarks act that it was, “couched in the language of fuliginous obscurity.” legislator and law-makers are generally the employees of the concerned ministry charged with the responsibilities of drafting the bill or are elected representatives of constituencies. in india, legislators or law-makers do not get any credit for the bill drafted by them, and hence the job is often referred to as an “unthankful job.” the job is not easy; many a time, legislators and law-makers are faced with challenges of conflicting interests and constraints. while drafting a piece http://creativecommons.org/licenses/by-nc-sa/4.0/ 610 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of legislation, they at the same time need to be aware of the current responsibilities vested in them, the portfolios they represent, the constituency that they represent, the interests of their political party and also the public interests of the country at large. the question thus arises: what should be the attitude of the legislators in deciding the legislative policy of any bill proposed to be introduced in parliament. they are supposed to take into consideration all the conflicting interests and then decide the matter in the public interest. conflict of interests the different functions and responsibilities of legislators and law-makers give rise to different conflicts of interest. accordingly, the articulation of appropriate standards of conduct and their supporting mechanisms must take these constraints into account. probably legislators face the widest range of potentially conflicting interests: personal, representational and other private pecuniary and non-pecuniary interests. certain interests are personally inherent: as a resident of a town or province, as a parent, spouse, or child, as a female or male, as indigenous or non-indigenous and so on. other interests arise from the representative role: as a member of the legislature, as representative of the electorate and as member of a political party. further interests arise from outside activities as a member of a non-political organization, as a businessman, professional, farmer, grazier, or employee. these wide-ranging interests include, therefore, both pecuniary and non-pecuniary interests. yet, despite all these potential conflicts, the legislator must endeavor to act only in the “public interest.” the obligation to act in the public interest requires that precedence be given to the public interest at stake over the private and personal interests of the official. representational interests raise their peculiar difficulties. for example, it raises the question of primacy between the party, the electorate and the nation. the uk code of conduct for members of the house of commons acknowledges at least two of these representational interests in part ii: “members have a general duty to act in the interests of the nation as a whole; and a special duty to their constituents.” one such recent example is the goods & service tax, which illustrates the conflict of primacy between the duty to the nation and the political parties. legislators & law-makers putting aside the political issue of sovereignty of the states and the centre came forward and introduced the gst. legislators from different http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 611 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia parties and constituencies set aside their differences and acted for the greater good of the country. this ratifies the uk code of conduct that the duty to act in the interests of the nation as a whole is supreme. the gst bill was passed by all the political parties reaching a consensus and not only from the parliamentary majority. indeed, it can be said that the primary function of a legislator is to reconcile these competing representational interests. this is what renders the position so onerous. at this point, cultural differences may accord different roles to legislators. for example, in societies, a legislator might be expected to represent particular groups who supported his or her election. whereas in other societies, this might be viewed as unethical or unclear. professor paul finn summed-up the position before the new south wales parliamentary icac committee in 1992: “we have to realize that public office is based on a conflict between duty and interest. we would be deluding ourselves if we did not start on the premise that politics is concerned about compromise, partiality, and selfinterest behavior. the problematic question is where on the spectrum, does that behavior becomes unacceptable?” most discussion of conflict of interest focuses on the advancement of pecuniary interests. indeed, at times a conflict of interest is defined solely by reference to the obtaining of a financial benefit. this narrow view of the conflict of interest avoids having to deal with the wide range of non-pecuniary interests, such as membership of a sporting, charitable, cultural, or environmental body or organization. nevertheless, these interests are just as capable of raising a real or apparent conflict of interest which may distort government decision-making. admittedly, there may often be a readiness to make such disclosure since the official obtains no pecuniary benefit and may revel in the disclosure of one’s charitable pursuits. nonetheless, to ignore nonpecuniary interests increases the likelihood of distortion of government decisionmaking. how does a legislator decide whether to support proposed legislation which restricts the logging of timber when faced with the following conflict of interests: 1) his or her political party supports a policy of environmental protection, 2) a significant part of the electorate represented depends on a forestry industry; and 3) legislator’s family operates a transport business in connection with that industry the last consideration, a personal or private interest, should be declared and ought to be given no more weight than that to be accorded to an assessment of the effect of http://creativecommons.org/licenses/by-nc-sa/4.0/ 612 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the proposed legislation on those ancillary industries likely to be affected. why is such a personal consideration ethically irrelevant? the reasons are: 1) the personal interest is too remote from the public interest; and 2) there is the risk that this interest will distort the process of deciding what is in the best interests of society as a whole. as for the other two considerations, it is not merely a case of deciding which is the most important. their resolution involves the weighing of the competing arguments. this may entail the reaching of a compromise, for example, to allow the forestry industry to operate within ecologically sustainable development guidelines. a further potential conflict of interest is the elected representative’s interest in being re-elected. can a member of parliament use one’s official position to improve the chances of being re-elected? this raises the issue of member of parliament using his office for political purposes of the party to which legislator belongs, as distinct from constituency matters. several examples can be given in this respect, pointing out how legislators set aside public purpose or interest to sustain the narrow interest of constituency or serve the interest of their political party. during the voting procedure of the goods & service tax in the lower house, amendments were introduced that served the narrow interests of a particular constituency or a class of people. comments and suggestions such as, “if you make the taxes 3/4th for the state and 1/4th for the centre and the quorum required is 3/4th, then you are effectively ousting the centre from any discussion on taxation6” clearly shows the inclination of law-makers to serve the interests of their constituency first. it also delineates the usage of official positions to increase the chances of getting re-elected. one glaring example is a recent decision of the delhi government to allow certain categories of industries to function in the residential areas of national capital territory of delhi. this was in spite of the consistent stand taken by the supreme court of india that these industries pollute the city area, and the citizens are deprived of pollution-free at resulting in endangering their health. the main problem faced by the legislators in the state legislatures as well as in parliament is their attitude to support narrow social problems of their own ethnic groups. in the indian context: the member of parliament from maharashtra will be inclined to support the interest of his state in supporting or rejecting any legislation tabled in parliament. likewise, the members of parliament from west bengal, odissa or uttar pradesh will try to gain mileage in supporting the interest of their states while deliberating on any legislation. it is this narrow interest of the legislators that 6 questions asked to arun jaitley at 7:02 pm. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 613 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia has become the subject-matter of great concern in passing and assessing legislation in parliament or state legislature because furtherance of a narrow interest of individual state by legislators always conflicts with the interest of the nation as a whole. this narrow outlook of the legislators is highlighted when legislations such as the value added sales tax (vat) & the goods & service tax (gst) came for consideration before the state legislatures. “questions have been raised about sovereignty and authorities of the state, are we surrendering that?7” – concerns of legislators during the discussion of reforming the tax regime of the whole country, state eccentric! the problem of solving demands of the states vis-à-vis the national interest of the country is one of the most important aspects, which the members of parliament and the state legislatures have to consider in-depth. solving of this problem demands a better understanding of local conditions of all states, socio-economic upliftment of states and also the possible barriers that may be created by particular legislation against the interest of a nation as a whole. there are several issues which assume great importance with reference to the interest of the individual states. the practice of manufacturing laws has led to large loopholes in the existing essential legislations, that creates a disparity between the state and the centre. for example, to mitigate the loss of revenue for states on account of the introduction of gst, for the first five years, a compensation cess was brought in under section 18 of the 101st constitution amendment act. this guarantee, however, has not been inserted in the constitution. a separate gst (compensation to states) act, 2017 was enacted, which provided, under section 8, that: “the compensation payable to a state shall be provisionally calculated and released at the end of every two months period, and shall be finally calculated for every financial year after the receipt of final revenue figures, as audited by the comptroller and auditorgeneral of india”. now what happens if the union does not release compensation cess at the end of every two months? a dispute ensues. under article 279a (11) of the constitution, the gst council must establish a mechanism to adjudicate between the centre and 7 questions asked to arun jaitley at 6.50 pm http://creativecommons.org/licenses/by-nc-sa/4.0/ 614 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia one or more states. however, even in the recently concluded 39th gst council meeting, no steps were taken to create such a dispute resolution mechanism. certain people severely assailed the decision to form a new railway zone in the railway minister constituency within three weeks of assumption of office by him. supreme court, however, held that formation of a new railway zone to meet the demands of backward areas is not by itself inconsistent with efficiency. more so, when it fulfilled the further criteria as to increase in traffic load and accessibility, the contention that efficiency would increase only if it could reduce the cost of administration and increase revenue was rejected.8 the decision was in the interest of overall interest of nation and people, and members of parliament, as well as legislators, should rise above the party interest and take a considered view and should have supported the move. in such a situation, it becomes imperative that the members of parliament and state legislators come out of their narrow party interest and vote in furtherance of passing a legislation which will be beneficial to all and would serve the interest of the citizens of the nation and should not be parochial to the interest of the individual state. the tendency of legislators to function as agents for a party or narrow interest of their constituencies rather than as trustees for people have often created voids in assessing and passing of legislative enactment. legislations are an advanced instrument of quick social change. it affects the state, the executive judiciary and the people of the country. the modern law-makers tend to confer more and more powers on the executive authority as parliament. the legislators have no time to assess the details of the legislation and its effect on dayto-day working or life of the people broadly speaking, legislative background or theory of any legislation involves the study of the characteristic features essential to law and common to legal systems. it also involves an analysis of the basic elements of any legislation that distinguish it from other forms, rules and standards that cannot be described as legal systems. the executive authority, as well as legislators, as a part of constitution machinery, is duty-bound to resolve the problems of coordination between the three wings of democracy, namely, executive, judiciary and parliament. there has to be a convergence of practices and opinions not only on the need for a solution to the problem faced by the people but also evolving a broad solution meeting the hardship faced by the people. the authority must see that the intended legislation meets the objective of the greatest good of greatest numbers as enunciated in article 39 of the constitution of india. article 39 directs the indian federal and state governments 8 federation of railway officers association v. union of india, (2003) 4 scc 289 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 615 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that the state shall direct its policy towards securing adequate means of livelihood and that the ownership and control of material resources of the come are so distributed as best to subserve the common good.9 conclusion in present world, legislation is more potent than a hand-held weapon. while a weapon kills or destroys one or a few at a time, a wrong act of the parliament or faulty legislation can kill the livelihood of millions and take the country gushing into a downward spiral of democracy. it can be well established that it is essential that any discussion of safeguarding the integrity of legislators occur in a positive atmosphere which recognises the privilege and honour which attaches to those vested with the public trust. no assumption should be made that all who occupy the public office lack integrity. instead, the desire should be to assist those in public office vested with that awesome responsibility to act always in the public interest. most mechanisms dealing with conflict of interest in relation to legislators and law-makers attempt to avoid or minimize a conflict of interest arising. in the hope that these avoidance mechanisms work, less reliance is placed on mechanisms which resolve a conflict of interest when one arises. but, we need more of mechanisms that resolve a conflict when it arises, as the former does not solve the issue, it just tends to postpone it whereas the latter permanently clear the road of legislators and thus truly enables them to perform their duties in the interest of their nation. the issue becomes not what the officials can get away with, but can they justify their conduct for the interest of the nation? essentially, it is another aspect of accountability and responsibility. 9 article 39. certain principles of policy to be followed by the state: the state shall, in particular, direct its policy towards securing (a) that the citizens, men and women equally, have the right to an adequate means to livelihood; (b) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good; (c) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment; (d) that there is equal pay for equal work for both men and women; (e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength; (f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment http://creativecommons.org/licenses/by-nc-sa/4.0/ 616 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references civil liability on nuclear damage bill, 2010 the uk code of conduct for members of the house of commons personal interview with arun jaitley at 7:02 pm. personal interview with questions asked to arun jaitley at 6.50 pm the constitution. a separate gst (compensation to states) act, 2017 federation of railway officers association v. union of india, (2003) 4 scc 289 article 279a (11) of the constitution, the gst http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 1 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article the policy of employment information system development in bali province in the era of industrial revolution 4.0 i wayan gde wiryawan1, dewi bunga2 1 faculty of law, universitas mahasaraswati denpasar, indonesia 2 department of law, institut hindu dharma negeri denpasar, indonesia  gdewiryawan1976@gmail.com cited as wiryawan, i. w. g., & dewi, b. (2021). the policy of employment information system development in bali province in the era of industrial revolution 4.0. journal of law and legal reform, 2(1), 1-14. https://doi.org/10.15294/jllr.v2i1.40816 abstract the era of industrial revolution 4.0 encourages the implementation of information technology-based government in various fields including in the field of manpower. the regional government of bali province has a legal product in the form of the bali provincial regulation number 10 of 2019 concerning manpower implementation mandating the development of a labor system. in this study, two issues will be discussed, namely the basic considerations for the development of an employment information system and the formulation of a law regarding an employment information system. the development of a manpower information system is based on the government's duties in providing public services and regional autonomy. the legal formulation regarding the manpower information system is written in the form of a regional regulation which should also be followed by a governor's regulation. keywords: information system; employment; industrial revolution 4.0. journal of law and legal reform (2021), 2(1), pp. 1-14. doi: https://doi.org/10.15294/jllr.v2i1.40816 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 09 august 2020, revised: 10 october 2020, accepted: 11 december 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i1.40816 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 2 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 1 table of contents ………………………………………………………….. 2 introduction …………………………………………………………………. 2 method …………………………………………………………………………… 4 employment information system: how does the law regulate it? ……………………………………………………………………. 4 i. basic considerations for the development of an employment information system ……………………………… 4 ii. legal formulation regarding employment information system ..……………………………………………….. 8 conclusion …………………………………………………………………….. 11 references ……………………………………………………………………... 12 introduction the modernization and development of the globalization era nowadays will affect various sectors of life as a nation and state. technological advances have changed the face of the world's economy. in the beginning, everything was done conventionally to a modern direction, especially in the industrial and trade sectors. as part of a nation in the world, indonesia, the country with the most population in the southeast asia region, has an ever-increasing population growth resulting in the increasing number of workforce every year amidst the limited employment opportunities because of the economic growth that has not been able to absorb it to enter the job market. according to data from the central statistics agency of the republic of indonesia, the total workforce in february 2020 was 137.91 million, an increase of 1.73 million compared to february 2019. in contrast to the increase number of the workforce, the labor force participation rate (tpak) decreased by 0.15 percentage point. in the last year, unemployment increased by 60 thousand people, in contrast to the tpt (unemployment rate) which fell to 4.99 percent in february 2020. judging from the level of education, the tpt for vocational high schools (smk) was still the highest among other education levels, which was 8.49 percent. the working population was 131.03 million people, an increase of 1.67 million people from february 2019. employments experienced the increase in percentage were mostly educational services (0.24 percentage points), construction services (0.19 percentage points), and http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 3 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia health services ( 0.13 percentage point). meanwhile, the decline in employment were mainly in agriculture (0.42 percentage points), trade (0.29 percentage points), and other services (0.21 percentage points) (bps, 2020). manpower problems in indonesia are increasingly complex when entering the era of the industrial revolution 4.0 resulting in disruption in various fields, including the labor sector. regarding the relationship between the industrial revolution 4.0 and employment, beni agus setiono stated the following: the rapid development of technology will sooner or later affect the demand for labor in the future. going forward, the demand for labor will shift. industry will tend to choose middle and highly skilled labor instead of less-skilled labor because its role in doing repetition work can be replaced by robot autonomization (benny agus setiono, 2019: 182). one of the important phases in technological development at this time is the emergence of the 4th wave industrial revolution, or better known as the industrial revolution 4.0. not only in the industrial and trade sectors, but with the 4.0 industrial revolution, everything is connected to information and communication technology which is very helpful for human activities in fulfilling their daily needs. the use of digital technology makes it easier for humans to exchange information, communication, and meetings indirectly. in addition to the community having the advantage of enjoying the use of digital technology, the government can also use this technology to maximize the government's duties in regulating its country, such as registering the population, accessing information about matters relating to the community such as economy, politics, social and culture to monitoring the activities of its people. to fit the ideology of the country. this will have implications for the effectiveness of decision-making and policies taken by the government. accurate and effective information systems, in fact, always relate to the term "computer-based" or computer-based information processing. such fast, accurate and reliable information is needed, for example in the context of making strategic decisions” (moekijat, 2019: 89). the need for big data in information systems is the main thing by the regional government of bali province in taking policy strategies that will be issued, both in drafting regulations, supervision, and other activities so that they are right on target. this has also led the governor together with the dprd to formulate several policies that include several articles regarding regulations regarding information systems. the policy is expected to be able to use information technology optimally and effectively in providing policies and supervision regarding the implementation of the regulations themselves. the bali provincial government has issued bali provincial regulation number 10 of 2019 concerning manpower implementation. this provision mandates the development of an employment information system. this study examines two problems, namely the basic considerations for the development of an employment http://creativecommons.org/licenses/by-nc-sa/4.0/ 4 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia information system and the formulation of a law regarding an employment information system. method this research is a normative legal research that discusses legal issues regarding the legal policy for the development of an employment information system in bali. at a macro level, the policy for the development of an employment information system is contained in the bali provincial government has issued bali provincial regulation number 10 of 2019 concerning manpower implementation. these provisions have not been translated into juridical technical regulations. as a result, bali does not have an employment database. this research was carried out with a statute approach and legal conceptual approach. legal materials consist of primary and secondary legal materials which are collected through literature study. the analysis was conducted qualitatively argumentative. employment information system: how does the law regulate it? i. basic considerations for the development of an employment information system the development of a manpower information system at the regional government level cannot be separated from the idea of the industrial revolution 4.0. the word industry 4.0 was born from the idea of the fourth industrial revolution. the industrial revolution has occurred four times. the first industrial revolution occurred in england in 1784 where the invention of the steam engine and mechanization began to replace human jobs, so that production increased significantly. the second revolution occurred at the end of the 19th century in which production machines powered by electricity were used for mass production activities. the use of computer technology for manufacturing automation starting in 1970 marked the third industrial revolution. today, the rapid development of sensor technology, interconnection and data analysis has led to the idea of integrating all these technologies into various industrial fields. this idea is predicted to be the next industrial revolution. the number four in the term industry 4.0 refers to the fourth revolution. industry 4.0 is a unique phenomenon when compared to the three industrial revolutions that had preceded it. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 5 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia industry 4.0 is announced a priori because the actual event has not happened yet and is still in the form of ideas. the era of the fourth industrial revolution is marked by artificial intelligence, super computers, genetic engineering, nanotechnology, automatic cars, and innovations. these changes occur at an exponential rate that will impact the economy, industry, government and politics. in this era, the world has become a global village (satya: 2018: 20). the potential benefits of industry 4.0 include improving the speed of production flexibility, improving service to customers and increasing revenue. the realization of these potential benefits will have a positive impact on a country's economy. industry 4.0 does offer many benefits, but it also has challenges to face. the challenges faced by a country when implementing industry 4.0 are the emergence of resistance to changes in demographics and social aspects, instability in political conditions, limited resources, the risk of natural disasters and the demand for environmentally friendly technology. there is a wide gap in terms of technology between the current conditions of the industrial world and the conditions expected from industry 4.0. companies are reluctant to implement industry 4.0 for fear of the uncertainty of benefits. in general, there are five major challenges that will be faced, namely the aspects of knowledge, technology, economy, social and politics. talking about the challenges of the political aspect, the state must be able to follow technological developments so that policies issued by the government are effective and in accordance with the development of this modern society. one of them is when the government provides public services and population data collection. based on law number 25 of 2009 concerning public services, public services are activities or a series of activities in order to fulfill service needs in accordance with statutory regulations for every citizen and resident for goods, services and / or administrative services provided by public service providers. public services regarding the manpower information system in the era of the industrial revolution 4.0 are currently clearly described in law number 25 of 2009 concerning public services. referring to article 23 paragraph (1) of law number 25 of 2009 concerning public services, it is stated that "in order to provide information support for the implementation of public services, it is necessary to establish a national information system." article 23 paragraph (4) of law number 25 of 2009 concerning public services further states that the provider is obliged to manage the information system which consists of electronic or non-electronic information systems which at least includes: profile of organizers, executive profile, service standards, service announcements, complaint manager and performance appraisal. the availability of manpower information is an implementation of achieving government targets in implementing public services. marsh and ian suggest 2 (two) perspectives that are important to observe in public services, namely: first, the dimensions of service delivery agents (government agencies or work units) and second, the dimensions of customers or users (the people who utilize them). based on the dimensions of service providers, it is necessary to pay attention to the level of performance achievement which includes fair services (spatial dimensions and social http://creativecommons.org/licenses/by-nc-sa/4.0/ 6 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia class), work readiness and work mechanisms, affordable prices, simple procedures and a certain time for completion. meanwhile, from the dimension of public service recipients, they must have an understanding and be reactive to deviations or unqualified services that appear in the practice of public service delivery. the active involvement of the community both in monitoring and submitting complaints against the practice of public service delivery is an important feedback factor for improving the quality of public services and meeting the standards set (salam, 2004; herlambang, 2018; ndun, helan, & pekuwali, 2020). as a consequence of the inherent function of public services, state administration is required to accept positive responsibility in terms of creating and distributing levels of income and wealth and providing public welfare programs. if this positive responsibility can be carried out, the existence of the government will grow into a large and strong government, both within the scope of functions and the number of personnel required to carry out its duties and responsibilities. each operator is required to provide a national information system. that way, information technology can play a big role in fulfilling the system on a national scale. the role of information technology is not only needed by the community in facilitating the information provided by the government, both regional and national, but the government also benefits from the information system provided. as what is felt by the government in bali. the manpower aspect which covers various dimensions in government and industrial society in fact has problems regarding the validity of employment data which makes employment policy making based on valid data. this is in fact the manpower data issued between government agencies in particular out of sync and when compared to data in the field, as well as the industrial community is also not the same. this raises the assumption that the manpower sector is one of the areas least ready to face the industrial revolution 4.0, one of which is data mastery. legal breakthroughs in the legislative process in bali province in the implementation of manpower policies is the development of an employment information system. the development of an employment information system is one of the most interesting issues to analyze in relation to the integration of employment data in bali province. this policy is one of the government's efforts to provide data needs for the benefit of policy making by the government itself as well as the needs of the industrial world for valid data on employment as a basis for business development in bali province. this policy of information system development is an act of government law. regarding this matter, r. abdoel djamali said the following: policy as a government legal action falls within the context of administrative law, namely the legal regulations governing administration, namely the relationship between citizens and their government which is the cause until the state functions. state administrative law is as a whole legal rule that regulates how the state as the ruler carries out efforts to fulfill its duties (djamali, 2001: 67). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 7 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia satjipto rahardjo said that when talking about law, the target of the discussion is not only around the law as a consistent, logical and closed system but also as a means of channeling policies in development or changing society (rahardjo, 1980: 13). local government policies in regulating manpower are carried out by developing an employment information system. the development of a manpower information system is based on regional autonomy. regional autonomy is the authority to establish and implement policies on its own initiative. the implementation of regional autonomy is the equivalent of regional government, namely the government of, by and for the people of the national territory of a country through system government institutions that are formally separated from the central government (hoessien, 2009: 25). the development of a manpower information system by the regional government is a mandate of the central government policy in providing public services for the community. according to bagir manan, the basics of the relationship between central and regions within the framework of decentralization are of four types: 1. the basics of deliberation in the state government system: the 1945 constitution requires that people be implemented at the regional level government, meaning that the 1945 constitution requires that participation in the administration of regional level government is only possible by desentralization. 2. the basis for the maintenance and development of the principles of indigenous governance: at the regional level, the original government structure to be maintained is in accordance with the basis of deliberation in the state government system. 3. basics of diversity: "unity in diversity", symbolizing indonesia's diversity, autonomy, or decentralization is one way to loosen the "spanning" that arises from diversity. 4. basic rule of law. in its development, the understanding of the rule of law cannot be separated and has a popular understanding. because in the end, laws that regulate and limit state or government power are interpreted as laws made on the basis of people's power or sovereignty (manan, 1994: 161-167). an information system is a system within an organization that meets the daily transaction processing needs, supports operations, is managerial and strategic activities of an organization and provides certain external parties with the necessary reports. information is generated by an information system process and aims to provide information to assist management decision making, day-to-day operations of the company and appropriate information for the company (mcleod, 2004: 43). ii. legal formulation regarding employment information system http://creativecommons.org/licenses/by-nc-sa/4.0/ 8 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia information systems are a combination of information technology and the activities of people who use technology such as computers, gadgets, radios, etc. to support human activities such as operations and management. in a very broad sense, the term information systems is often used to refer to the interactions between people, algorithmic processes, data and technology. in this sense, this term is used to refer not only to the use of information and communication technology organizations, but also to the way in which people interact with this technology in supporting human activity processes. in short, it is to facilitate all human needs through unlimited information, to communication which can be done with no distance limitation. the development of information systems has also become an aspect of governance. the government information system is the use of information technology by the government in the state governance process to make it easier for the government to determine policies, such as using the intranet and the internet, which has the ability to connect the needs of the population, business and other activities, such as the process of business transactions between the public and the government through an automation system and internet networks as well as monitoring activities carried out by the government towards its citizens in implementing regulations established by the government itself. the information system is a collection of sub-component sub-systems both physical and non-physical which are interconnected with one another and work together in harmony to achieve one goal, namely processing data into useful information. information systems are as a combination of humans, technological tools, media, procedures and controls that aim to organize communication networks so that they can help in making the right decisions. activities contained in the information system, among others: a. input, an activity to provide data to be processed. b. process, an activity of how data is processed to produce value-added information c. output, an activity to generate reports from the above process. d. storage, an activity to maintain and store data. e. control, an activity to ensure that the information system runs as expected (azhar, 2000: 43). in more depth, government agencies in preparing the vision and mission of information technology policies will look more at the equity factor (making information technology to improve service quality for public use). to achieve the target of effective application of information technology, it is necessary to establish a computerized government or e-government and human resources and education. the reason is because the application of information technology will be optimal if the users of technology services have knowledge and really understand the technology so that the target of applying information technology is achieved. the manpower aspect is one of the areas that requires high data accuracy, so that accuracy in policy making cannot be separated from the support of employment data held by the government. the development of a manpower information system by the government is basically to be able to find out manpower information so that it can http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 9 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia provide policies to a more effective and efficient supervision. the development of an employment information system is regulated in the bali provincial government which has issued a regional regulation of the province of bali number 10 of 2019 concerning the implementation of manpower. regional regulations that are formed by the regional government, the governor, the regent, the mayor together with the regional people's representative council, basically have a function as a policy instrument for implementing regional autonomy and co-administration as mandated in the 1945 constitution of the unitary state of the republic of indonesia and law on regional government. regional regulations are the implementing regulations of higher laws and regulations. in this function, regional regulations are subject to the hierarchical provisions of the statutory regulations, thus regional regulations may not conflict with the higher laws and regulations; regional regulations are also a means of accommodating regional specificities and diversity as well as channeling the aspirations of the people in the regions, but in their regulation they remain within the corridors of the unitary state of the republic of indonesia based on pancasila and the 1945 constitution of the republic of indonesia; and as a development tool in improving regional welfare (dirjen peraturan perundang-undang, 2008: 7). in article 8 of the bali provincial regulation number 10 of 2019 concerning the implementation of manpower, it is stated as follows: (1) the provincial government is obliged to build a manpower information system. (2) the manpower information system as referred to in paragraph (1) shall contain at least: a. obliged to report about employment; b. must report job vacancies; c. reports on the use of foreign workers; d. reports on the placement of workers at home and abroad; e. reports of apprenticeship participants at home and abroad; f. certification; g. reports and recording of work agreement; h. registration of a trade union / labor union; i. outsourcing agreement; and j. disability employment information. (3) entrepreneurs / management of companies, workers / laborers and workers / labor unions are required to report the contents of data as referred to in paragraph (2) online to the manpower information system as referred to in paragraph (1). (4) the manpower information system as referred to in paragraph (1) shall be implemented independently and / or integrated with other information systems. article 8 of the bali provincial regulation number 10 of 2019 concerning manpower implementation is the legal basis for the bali provincial government to take policies http://creativecommons.org/licenses/by-nc-sa/4.0/ 10 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in building an integral labor information system. in this connection, hobbel states four basic functions of law, namely: 1. establishing the relationships between members of society, by indicating what types of behavior are permitted and what are prohibited; 2. determining the distribution of power and specifying who is allowed to enforce coercion and who must obey it and at the same time choosing the appropriate and effective sanctions; 3. resolving disputes; 4. maintaining the community's ability to adapt to changing living conditions, namely by reformulating the essential relationships between community members (warassih, 2005: 27). the manpower information system will cause the government have a data base which can be used by the central and regional governments as a basis for consideration in government policy and management through the output generated from the manpower information system. the provincial government of bali issues manpower through several clauses regarding the use of information systems. this is very important for bali provincial government in the context of utilizing information technology in running the government. it is different from before in which the use of technology was not so optimal that information attainment, policy making, and supervision were less effective. considering the above conditions allows the bali government to pay attention to the use of information technology from various sectors, for entering into the formulation of regulations. the manpower information system policy is a legitimate government action in the laws and regulations. basically, there are two measuring tools for the validity of governmental acts, namely: 1) statutory regulations as written legal rules and 2) general principles of good governance as unwritten legal rules. for the government, first of all, a rule is needed as a norm of governmental action. such formulation is a general norm of state administrative law which in its development in several countries is currently accommodated in a general state administrative law codification (nasution, 2006: 126). in the most basic concept of governance, there are three main stakeholders interacting with each other and carrying out their respective functions, namely the state or government, the private sector or business world, and society. government institutions function to create a conducive political and legal environment, while the private sector creates jobs and income, while the community plays a role in building social, economic and political interactions, including inviting community groups to participate in economic, social and political activities (sumarto, 2004: 73). the three components must cooperate in providing accurate data at least concerning the mandatory manpower report; are obliged to report job vacancies, the use of foreign workers, the placement of workers at home and abroad, the apprenticeship participants at home and abroad, the certification and recording of work agreement, the registration of a trade union / labor union, the outsourcing agreement, and the disability employment information http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 11 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the information system is a procedure for submitting data provided to related parties to the government. therefore, the information obtained can be used as one of the considerations in providing policies, supervision, and other activities related to the work itself. the data in question is in the form of data concerning the employment itself, such as the workforce, educated, experienced, and migratory workforce, etc., in which all the data will be collected in a data system called big data. this big data will be used by the government as a later consideration. in practice, the policies of the bali provincial government still encounter obstacles, namely weaknesses in the use of big data. in a big data system, some data is classified according to its scope. regarding employment where big data is available at the manpower office, and the information received also consists of several bodies that have their respective jurisdictions, such as migrant labor which is held by an agency that has the authority is to collect data on migrant workers, an agency that specifically covers local, women, and children manpower. these several agencies that have a specific scope of authority regarding manpower will provide information to the manpower office as the center of the manpower itself which is then used as considerations taken by the government in responding to the needs of the community itself. the problem is where there are differences regarding the data from the center, namely the manpower office, with the agencies under it. therefore, the policies that should be in accordance with the results of the information received are less effective in the society. the inclusion of clauses on the information system of local regulations is considered so important that all parties involved can position themselves and improve coordination. therefore, the data obtained has similarities between the center and those under it. the errors in the data received will greatly impact the policies that will be issued by the government itself. in accordance with the vision of the government, which is to make information technology to improve the quality of services for public use, it is mandatory to be regulated in that regional regulation. conclusion government information system is the use of information technology by the government in the state governance process to make it easier to determine policies, such as using the intranet and internet, which has the ability to connect the needs of residents, businesses and other activities, such as the process of business transactions between the public and the government through an automation system and internet networks as well as monitoring activities carried out by the government towards its citizens in implementing regulations that have been established by the government itself. the bali regional regulation has regulated several clauses regarding the development of information systems. this is very important for the bali provincial government in the context of utilizing information technology in running the http://creativecommons.org/licenses/by-nc-sa/4.0/ 12 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia government. the government should maximize the use of information technology. a more optimal use will have a good impact on the running of the government. however, if it is not maximized, it will result in confusion of data and policies issued that are not as expected. regulations that have been made must be immediately realized so that they have a legal basis in the implementation of the employment sector. apart from being realized, it is necessary to provide counseling to related agencies regarding the delivery of information regarding employment. references atmosudirdjo, p. (1986) hukum administrasi negara. jakarta: ghalia indonesia. azhar, a. (2000). sistem informasi manajemen konsep dan pengembangannya. yogyakarta: penerbit andi. bps (badan pusat statistik republik indonesia). (february 2020). “tingkat pengangguran terbuka (tpt) sebesar 4,99 persen” retrieved from, https://www.bps.go.id/pressrelease/2020/05/05/1672/februari-2020--tingkatpengangguran-terbuka--tpt--sebesar-4-99-persen.html dirjen peraturan perundang-undangan. (2008) panduan praktis memahami perancangan peraturan daerah. jakarta: penerbit caplet project. djamali, r.a., (2001) pengantar hukum indonesia. jakarta: pt raja grafindo persada. herlambang, p. (2018). implementation on transfer of undertaking protection of employment to outsourcing labors in semarang indonesia: a legal approach. jils (journal of indonesian legal studies), 3(1), 109-130. https://doi.org/10.15294/jils.v3i01.23211 hoessien, b. (2009) perubahan model, pola, dan bentuk pemerintahan daerah (dari era orde baru ke era reformasi). depok: departemen ilmu administrasi fisip universitas indonesia. manan, b. (1994). hubungan antara pusat dan daerah menurut uud 1945, sinar jakarta: harapan. mcleod, r. (2004) sistem informasi manajemen. jakarta: indeks. moekijat, m. (2019) pengantar sistem informasi manajemen. bandung: remaja rosdakarya. nasution, b. j. (2006). tinjauan tentang ruang lingkup dan alat ukur tindak pemerintahan yang baik. jurnal demokrasi, 5(2), 123-128. http://ejournal.unp.ac.id/index.php/jd/article/view/1079/914 ndun, i., helan, y. g. t., & pekuwali, u. l. (2020). the absolute competence of the industrial relations court in resolving employment termination disputes. jils (journal of indonesian legal studies), 5(1), 29-52. https://doi.org/10.15294/jils.v5i1.33159 rahardjo, s. (1980) hukum dan masyarakat. bandung: angkasa. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 13 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia salam, d. s. (2004) otonomi daerah dalam perspektif lingkungan, nilai dan sumber daya. jakarta: djambatan. satya, v. e. (2018). strategi indonesia menghadapi industri 4.0. info singkat 10(9), 1924. setiono, b. a. (2019). peningkatan daya saing sumber daya manusia dalam menghadapi revolusi industri 4.0. jurnal aplikasi pelayaran dan kepelabuhanan, 9(2), 179-185. http://pdpjournal.hangtuah.ac.id/index.php/japk/article/view/67/66 sumarto, h. s. (2004) inovasi partisipasi dan good governance. jakarta: yayasan obor indonesia. warassih, e. (2005) pranata hukum, sebuah telaah sosiologis. semarang: suryandaru utama. http://creativecommons.org/licenses/by-nc-sa/4.0/ 14 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote resources are hired to give results, not reasons. amit kalantri, wealth of words http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.goodreads.com/work/quotes/52819006 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: 7fbf23cb7cea2085 • 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: 7fbf23cc4b5b20b5 • 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: 7fbf23cac9521fef • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 2(1) 2021 109 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article political dynasty in law and political perspective: to what extent has the election law been reformed? yunas derta luluardi1, ayon diniyanto2 1,2 iain pekalongan, indonesia  yunas.derta.luluardi@iainpekalongan.ac.id cited as luluardi, y. d., & diniyanto, a. (2021). political dynasty in law and political perspective: to what extent has the election law been reformed?. journal of law and legal reform, 2(1), 109-124. https://doi.org/10.15294/jllr.v2i1.44321 abstract a democratic state allows for the birth of a dynastic politics. indonesia as a democracy must accept these consequences. as long as dynastic politics are in accordance with the constitution and do not violate democratic principles, the state accommodates the birth and development of dynastic politics. in indonesia, since the opening of the doors of reform and regional autonomy, it has led to a democratization of political power at the center as well as in the regions. dynastic politics also grows and develops. the growth and development of dynastic politics occurs at the level of political power in the regions. in the tegal raya region, dynastic politics led by the dewi sri clan had experienced developments and was able to place several members of the dewi sri clan in several political powers. but interestingly, the political development of the dynasties in the tegal raya region must be reduced. this article analyzes the factors that influence the development and reduction of dynastic politics in the tegal raya region. keywords: development; political dinasty; reduction; tegal raya. journal of law and legal reform (2021), 2(1), pp. 109-124. doi: https://doi.org/10.15294/jllr.v2i1.44321 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 25 september 2020, revised: 17 december 2020, accepted: 15 january 2021 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i1.44321 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 110 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 109 table of contents ……………………………..…...…………………..….. 110 introduction …………………………………….…………………………… 110 the development of dynastic politics in the tegal raya region …………………………………………………………………………….. 112 factors affecting the reduction of dynastic politics in the tegal raya region …………………………………………………… 115 conclusion …………………………………………………..………………… 121 references …………………………………………………………………...… 122 introduction indonesia is a country that adheres to democracy. this can be seen from the provisions of the 1945 constitution article 1 paragraph (2) which states that sovereignty is in the hands of the people and is exercised according to the constitution. according to asshiddiqie (2005), this provision is said to be a constitutional democracy (muhtada & ayon, 2018). one of the consequences of constitutional democracy is that every implementation of the life of the nation and state must be based on the sovereignty of the people and the constitution. this applies to the mechanism of state life in the transfer of power which must be carried out with the people's sovereignty and based on the constitution. this mechanism can be done through elections. it is not surprising that indonesia, which adheres to a constitutional democracy, always conducts elections in transition, especially in the executive branch of power. this mechanism took effect after the amendments to the 1945 constitution. in indonesia, the transfer of power in the executive branch of power has been going on from the central level, namely the president and vice president to the regional levels of governors, regents, and mayors and their deputies. normatively, this mechanism can be said to be running well. this is evidenced by the existence of a consolidated electoral system starting from the organizers, supervisors, and legislative institutions in the field of disputes over election results. indeed, many influencing phenomena are related to the mechanism for selecting leaders in the executive branch of power, especially at the local or regional level. dynastic politics is one of the phenomena that occur due to the existence of a democratic and constitutional electoral mechanism. normative dynastic politics do not violate democracy and the constitution. this condition is because there are no regulations that prohibit dynastic politics at the time of elections in branches of power both at the central and regional levels. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 111 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia however, the question is, dynastic politics are often enlivened by pro and contra (rizan, 2019). therefore, it is necessary from a different perspective, remembering that from a democracy and a constitutional perspective there are no problems. analysis of the quality of dynastic politics in the seizure and exercise of power must be analyzed, how political dynasties can grow and be able to run power and can dynastic politics grow or be reduced? this question is very aptly addressed to dynastic politics in the tegal raya region which includes brebes regency, tegal regency, tegal city, and pemalang regency. the four regions were once (there are still areas) controlled by the dynasty of dewi sri's ruling clan. here in after referred to as the dewi sri clan. idza priyanti (regent of brebes, 2012 -2022), edi utomo (candidate for regent of tegal regency, 2013), ikmal jaya (mayor of tegal, 20102015), and mukti agung wibowo (2010-2015) (rizan, 2019). now practically, only idza priyanti is still holding power in brebes regency and will end in 2022 for the second period, so that regulations cannot go forward again. edi utomo failed to become a regent when he participated in the 2013 contest for regional head elections in tegal regency. ikmal jaya lost when he ran again in the 2013 election for mayor of tegal, and even tripped over a corruption case. mukti agung wibowo failed when he faced the incumbent in the 2015 pemalang regency regional head election (sinaga, 2016; nugroho; 2013, kpu, 2015). this means that the dynastic politics in tegal raya driven by the dewi sri clan is idza priyanti and will end in 2022. the reduction of dynastic politics from the dewi sri clan, which only idza priyanti left behind raises questions. who is the next dynastic political administrator from the dewi sri’s family. the dynastic politics driven by the dewi sri clan will enter a receding period if there are no candidates from the dewi sri clan who run for regional head in the tegal raya region, especially after idza priyanti was unable to run again due to legal regulations that allow only two terms. however, it can be said that the dewi sri clan still strengthens the political existence of the dynasty in the tegal raya region. this is evidenced by the readvancement of mukti agung wibowo, who has re-nominated for pemalang regent, after previously being deputy regent of pemalang (2010-2015) and losing the pemalang regency regent election in 2015 (basaran, 2020). if mukti agung wibowo succeeds in winning the battle, then the dynastic politics of the dewi sri clan will again show its existence in the tegal raya region, which previously only left idza priyanti. based on the scientific reasons above, the writer breaks down the problems, namely (1) how did the political development of dynasties in the tegal raya region begin? and (2) what are the factors that influence the reduction of dynastic politics in the tegal raya region? http://creativecommons.org/licenses/by-nc-sa/4.0/ 112 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the development of dynastic politics in the tegal raya region politics in nasti or politic dynasty in fact there is no legal definition. this is because there are no regulations governing dynastic politics. agustino and yusof define dynastic politics as the placement of several family members in a political structure. the family members are based on ancestry or clan (agustino & yusoff, 2010). this definition can generalize that several people in a family who are included in the political structure can be said to be dynastic politics. this definition also does not impose limits only on the leadership of the branch of power in the government. this phenomenon is not taboo in indonesia. the political definition of a dynasty that has been described is used to observe political conditions and structures in indonesia. the phenomenon of dynastic politics can be said to already exist. even before the reformation many have been carried out under the term nepotism. however, nepotism is not limited to family members but can also be friends or relatives. interestingly, in the current context, dynastic politics with nepotism are very different. dynastic politics has not been defined in the regulations, so there is no prohibition against doing dynastic politics. the placement of family members in the political structure is also carried out democratically, namely through elections that are regulated by law. the people as the holder of sovereignty then choose and deliver it to the political structure, on the condition that they must win the democratic mechanism. this is different from nepotism which has been explicitly defined in law and is said to be a prohibited act. article 1 point 5 of law number 28 of 1999 concerning clean and free state administration from corruption, collusion and nepotism states that nepotism is any act of state administrators against the law which benefits the interests of their families and / or cronies above the interests of the community, nation, and country. then article 5 point 4 and article 22 in substance states that every state administrator who practices nepotism can be subject to imprisonment and fines. the definition of nepotism is very clear, namely the existence of acts against the law that use family interests such as the placement of family members in a political structure. this is what makes dynastic politics different. dynastic politics is not an act against the law because it is carried out with a legal and democratic mechanism. for example, such as the regional head election or pilkada which was attended by several family members and succeeded in winning the contestation. this means that legally, dynastic politics is legal and constitutional. the law can be said to provide space for dynastic politics. the provision of space from law to dynastic politics can be said to be the cause of the growth and existence of dynastic politics. comparative, for example: if the law does not provide room for dynastic potential. of course, dynastic politics is said to be an act against the law and anyone who practices dynastic politics will be prosecuted according to law enforcement. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 113 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in the tegal raya as the cause of the growth of dynastic politics, other causes of the growing political dynasty as resources, community support, and access to political parties. the three causes are causes that do not have to be collectively owned but follow the conditions of the area to be addressed in the placement in the political structure. in the tegal raya region, dynastic politics have occurred, driven by the dewi sri clan. klan dewi sri cannot be separated from t ribs that cause, so that affects the emergence and development of dynastic politics in tegal raya. resources that can be said to play an important role in bringing about political dinasty in the tegal raya. resources according to charles f. andrain are divided into five types, namely physical, economic, normative, personal, and expert (andrain, 1992). there is only one dewi sri clan that is not owned by resources, namely physical (luluardi, 2013). physical in this case for example weapons (andrain, 1992). others such as economic, normative, personal, and expert resources were owned by the political dynasty in the tegal raya region. the next cause for the emergence of political dynasties in the tegal raya region was community support. strong community support can win democratic battles. it is impossible, without strong community support quantitatively will win a political battle like the pilkada. given the democratic system requires the support of the people as sovereignty and must amount to the majority. this community support seems to have been managed well by the dewi sri clan in the tegal raya area. dewi sri's clan has succeeded in getting support from the grassroots community of entrepreneurs and grassroots (luluardi, 2013). no wonder the dewi sri clan gets support from business circles. given that the dewi sri clan comes from business circles. a successful business business is run by the dewi sri clan so that becoming a large business clan in the tegal raya area will make it easier to be known and close to the grassroots community. dewi sri clan business businesses are very popular in the tegal raya area such as po dewi sri which is engaged in transportation services. bring influence on the level of popularity of the members of the dewi sri clan. this means that people will get to know the dewi sri clan more because the business they are running has been popular in the community. the high level of popularity in the dewi sri clan will have an impact on the high potential acceptability or liking of the community. the potential for obtaining a high level of bishoprics is greater than that of someone who has low popularity. favorite high level will also provide a potential incidence of high desirability. that is, the potential to be chosen is higher if it has high acceptability. all of that can be done by approaching the community until it gets grassroots support. this is because grassroots people constitute the majority voters in democratic elections in indonesia such as pilkada. the support from entrepreneurs and the grassroots community seems to have been really optimized by the dewi sri clan so that they can win competitions in several pilkada. another reason for the emergence of dynastic politics in the tegal raya region, driven by the dewi sri clan, was access to political parties. political parties are one of http://creativecommons.org/licenses/by-nc-sa/4.0/ 114 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the pillars of democracy (muhtada & diniyanto, 2018). it is hoped that the presence of political parties in democracy can protect the wheels of democracy so that it truly becomes the sovereignty of the people. this condition is not surprising if in the operation of candidacy in elections, support from political parties is often required. in indonesia, it even requires support and proposals from political parties in the presidential and vice-presidential election.1 this also applies to the pilkada. however, in the pilkada process, there is still one option, namely through individual or independent channels provided that, it collects support from the community directly, which is usually proven by the identity cards of each person who supports it. of course, the individual route will be more difficult because it must first gather real community support. the next problem is having to form a support machine that can move the grassroots community to be able to win the pilkada. spontaneous formation of support machines will be more difficult and requires relatively large material and non-material resources. it is not surprising that in the pilkada process, many candidates for regional heads or deputy regional heads prefer to use support channels from political parties. not because it is easy to get support from political parties, but because there is a political party machine that can make winning the pilkada easier. it remains only to optimize the party machine and increase voter support from other sectors. the dewi sri clan seems to fully understand the function of political parties and the benefits of being promoted by political parties in the pilkada. this is evidenced by members of the dewi sri clan who almost always advance using political parties. there was only one time that progressed using the individual route, namely mukti agung wibowo when he was running for the 2008 tegal city regional election. given that ikmal jaya, the older brother of mukti agung wibowo, had no opponent at that time, mukti agung wibowo became a candidate for puppet mayor. it is only part of a political strategy (luluardi, 2013). that is not a serious clan dewi sri in nominate in elections using individual track. the dewi sri clan can be said to be more comfortable using political parties as a vehicle to win the pilkada. this was proven by members of the dewi sri clan who won the pilkada using political parties as vehicles. the understanding of the dewi sri clan about the importance of political parties in the pilkada seems to be followed by the ease of gaining access to political parties. the dewi sri clan seems to easily get support from political parties. this is evidenced by the various political parties that support the dewi sri clan members. the dewi sri clan does not always use one political party as a vehicle for candidacy in the pilkada (nugroho, 2015; afif, 2016; kristyarini, 2013). these four causes can be said to be the cause of the emergence of the dewi sri clan in dynastic politics in the tegal raya region. the rule of law is loose for the 1 see the 1945 constitution article 6a paragraph (2) which states that the presidential and vicepresidential candidate pairs are proposed by political parties or coalitions of political parties participating in the general election before the implementation of the general election. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 115 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia proliferation of dynastic politics as a normative cause. then resources, community support, and access to political parties are the strengths or advantages possessed by the dewi sri clan so that they are able to occupy members of the dewi sri clan in the political structure, namely regional heads and deputy regional heads. factors affecting the reduction of dynastic politics in the tegal raya region the discussion related to the factors that influence the reduction of dynastic politics in the tegal raya region in this article is carried out normatively and generally. the researcher examines the normative and general aspects that cause the reduction of dynastic politics in the tegal raya region. there are at least two main factors affecting the reduction of dynastic politics in the tegal raya region, as follows. candidate recruitment revolution based on political survey the function of political parties in the recruitment process is an important indicator of the success of democracy at the local level. the maturity of knowledge of political parties is at stake to find militant and productive cadres in this international institution. instead, the parties will lose money if they choose the wrong seeds to become regional leaders. governed by article 29, paragraph 1 law no. 2 of 2011 on political party explained that political parties do the recruitment of indonesian citizens to become candidates for regional head and deputy head of the regions. although since the previous law, namely the pilkada law no. 12 of 2008, it has allowed them to run as individuals. based on peraturan komisi pemilihan umum (pkpu) no. 3 of 2017 article 8 (1) requirements for the nomination form of the amount of support for individual candidates for the election of regent and vice regent or mayor and deputy mayor, as shown on table 1 table 1 support terms based on the number of voters2 number of voters3 terms of support <250,000 10% 250,000 500,000 8.5% 500,000 1,000,000 7.5% > 1,000,000 6.5% source: data processed from pkpu no.3 of 2017 2 the amount of support referred to must be spread over more than 50% (fifty percent) of the number of sub-districts in the regency / city area concerned. 3 regencies / cities with the number of population included in the final voter list during the last election or election. http://creativecommons.org/licenses/by-nc-sa/4.0/ 116 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia rules that support the minimum requirements used as a reference touts individuals submit photocopy e-ktp requisite total number. however, this is the dilemma when individual candidates are required to submit proof of voting support from the people in practice individual candidates buy first photocopies of id cards from the people. every citizen has the constitutional right to be elected and to vote, but with the enactment of pkpu regulation no. 3 of 2017, independent candidacy is rare. some of the factors of the lack of candidates from the independent path include the waste of capital for the succession of winning candidates, the difficulty of the requirements that must be fulfilled by prospective candidates, the considerable competition from competitors who use political party vehicles, the lack of political education for successful teams in winning political strategies, costs more politically borne and there is no solid support base for votes because there are no strong ideology-based ties. therefore, by these considerations regional head candidates will choose to use political party vehicles as the basis for winning votes. the rational choice of candidates for regional head prioritizes whether political strategies are more profitable or at least less risky. practical politics plays in the search for political parties that apply to become potential cadres to become regional heads, but politics does not necessarily seek, because parties also have cadres who have long been loyal to fight together. age of regeneration or party membership does not guarantee the quality of candidates expected by the community. its loyalty is the dominant indicator in determining the quality priority of cadres on the other hand parties also need, their existence in politics. in order to survive, they usually make favourable contracts and agreements between the party institutions and the cadres themselves. this party's chance of survival is read as an opportunity by candidates who do not have party affiliation. the documentary system which is oligarchic only at the level of the party elite and is not professional is presumed to be the failure of party regeneration. members of the dewi sri clan in the tegal raya area became predatory for political parties at the regional level. the candidacy for mayor of tegal in 2009 is an opportunity for economic resources to be used to deceive and promise the progress of political parties in survival among the onslaught of rivalries of various political parties in the tegal area. recommendations issued by the central leadership council (dpp) of political parties are considered a breath of fresh air (johari & gaharu, 2013). in a different case, during the 2015 candidacy in tegal regency, edi utomo was unable to run from the pdip party because he did not get a dpp recommendation less than 1 month before the registration of a candidate for regent. the rush to find a replacement for a political party vehicle, and years of preparations for regeneration are considered lost. in the end the mass base also experienced a breakdown of support at the branch branch leadership (pac) level4. the preparedness of the candidate success team was strengthened to prepare for this drastic political change. the split of votes at the pac level will reduce the 4 interview with marsinggih marnadi on 21 august 2013. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 117 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia political power of the candidates, which will actually benefit their political opponents. sudden "jumping lice" of candidates in political parties overhaul the system of recruitment and regeneration, even buying and selling support packages. some are in the form of t-shirt campaign attribute packages, banners, flyers, news services, and commercializing political party assets. variants of political " deal " packages of candidates with political parties are read intelligently by survey institutions. the succession bid of the winning candidate by the survey institute is considered more professional. in addition to survey institutions having data on needs figures, they are more sensitive to community responses. the main source of the response was the response to the rolling of the third democratic wave of developed countries. demand for “one man one vote” democracy opens the door to political marketing promotion. reflecting on the election 2004, the direct election provided a separate evaluation record, so that the survey pattern began to grow in the 2009 elections. parliamentary threshold in 2009 at the national level be milestone standard in government's success in simplifying the political parties. however, on the other hand, the political trend at that time shifted from political narrative to quantitative figures. the trend of modernizing quick count calculations has a big impact on the winning process. survey agencies began to mushroom for electability, voter behaviour, formulating campaign strategies to create winning teams that were donated by candidates (simarmata, 2017). the results of the survey institute also create an image of political victory as a definite result, which should not be the prediction result as the main measure in the excitement of a democratic party. survey institutions in general elections or regional head elections have begun to transform into the modernization of the political party recruitment system. the involvement of academics, marketing and endorsers has also enlivened the celebration of democracy lately. this is contrast to the previous election which only enlivened politicians and the mass media as a means of fighting. they offer surveys to regional head candidates to assess the extent of their winning rate in the pilkada. in fact, some political parties require surveys with designated vendors. the results of this survey then become a consideration whether a political party makes recommendations or not, even though at that time the regional head candidates had not yet entered into the political party cadres. the survey package menu offered varies from one survey to the winning strategy model package. so that survey institutions not only make research but can also become event organizers in shaping the good image of candidates, preparing political scenarios, and even making political dramas during political campaigns. the results of survey institutes' research are also signaled to shape public opinion (sobari, 2013). the more dominant or superior numerical value of the candidates will be published and disseminated to create a good image and political image, while the low value of the graph is made in such a way that it will never be recognized by the public. the prediction of a candidate's victory is spread by survey institutions as an image http://creativecommons.org/licenses/by-nc-sa/4.0/ 118 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia building (wahid, 2009). not only one survey institution, but several survey institutions claim the winning team of the candidate's victory. the election of a survey institution as a research vendor by a political party cannot be denied that this survey institution is also indirectly bound by a political contract. this political marketing strategy is used to reject the success of the candidate winning team. popularity is the main reference in taking political surveys, fame is the subject of a research agenda because voters tend not to see the ideological basis as the basis for the candidate's vision and mission but rather the fame of the candidate or even the voters only vote on perceived popularity (cillessen & rose, 2005). in this position, voters tend to be deceived by political imagery. on the other hands politeness and kindness constitute sociometric popularity (parkhurst, & hopmeyer, 1998; de laet, doumen, vervoort, colpin, van leeuwen, goossens, & verschueren, 2014; cillessen & rose, 2005) used as the ideal universal value that regional head candidates must have. it can be said that the closer you are, the more you know, not the other way around, the more famous you are, the more you are trusted because of your skills. therefore, the popularity indicator is narrowed down to acceptability to get the best candidate seeds. the candidates for regional head must have leadership skills, this capability which can then be seen by the general public. the ability to accept (acceptability) also affects the pilkada victory procession. it could be that the candidate has high capacity and capability, but the community does not accept it because residents find it difficult to translate the candidate's achievements or even these advantages are covered by the shortcomings of the black campaine war. pol-tracking institute uses 13 aspects in survey assessment namely; integrity, capability, intellectuality, visionary, leadership skills, achievement experience, courage in making decisions, public communication, elite communication, empathy/aspirations, emotional maturity, physical appearance, public acceptability, party acceptability (sobari, 2013) . the emphasis of party acceptability is the beginning of the revolution for political party recuit. the acceptance of party members and party cadres also had effect on the survey results. it also avoids the possibility of a breakout of support within the party, a race between healthy cadres in competing for medals for recommendations from party leaders. the party organizational system also forms a bulwark to prevent flea candidates, fairly-high value point in the survey assessment category to buy vehicle people's vote support through political parties. the challenge of acceptability of political parties is also influenced by the lack of popular cadres, the fight between parties in finding idol leaders is like a boomerang when the robust recruitment system is violated. the existence of political parties in the regions is also questioned when there are no candidates, instead the voters switch support, or the party loses its grass roots. therefore, the party will not bear a big enough risk, the alternative way is to find cadres who have high electability. the existence of the electability measurement value of survey institutions was questioned by wawan sobari in the journal entitled "electability and rational voter myths: debate on opinion research results ahead of the 2014 election". this article http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 119 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia makes the public ambiguous about the extent to which survey institutions are able to use the same methods and approaches as their analytical tools while the results of the surveys are much different. it is not only the candidates for regional heads who are taken into account for their electability, but many survey institutions have been contested. regardless of this, the survey figures are still a barometer of political candidacy, with proverbs soliciting politics behind its uncertainties. the public is often haunted by electability diagrams and figures in the mass media, while the electability context itself is frozen in the campaigns of regional head candidates. the vision and mission of leadership is considered as political promises, which implies a political contract against its supporters. meanwhile, when they took office, they did not only contract with their supporters but with the entire community being led. issues of political dynasty prevention in the 2015 election bill (grand design black campaign) the rapid development of democracy at the local level is a sign of the harmonization of social and political changes in society in the progress of the life order. this growth is not without problems. political malpractice is considered a dominant factor that plays a role in improving the political system in indonesia. the most significant time in this change is the half-decade which is considered suitable for cutting the oligarchic chain of power, the entrance to the election as an official facility regulated by the constitution. anthropological studies look at dynastic politics, a cultural system inherited from an acitocratic legacy that can destroy democracy in indonesia (hijjang & amelia, 2019). they are symbiotic in the realm of democracy at the local level, are included in the line of the social economy and hegemony at the grass roots (haboddin, 2015). dynastic politics is considered to be the culprit in burying the ideals of a superior generation in the regions. therefore, grassroots, and political parties are also fighting to break the chain of dynastic hierarchies in the government and political system through legal channels by proposing the 2015 election bill. when the drafting of the 2015 election law the struggle of the anti-dynastic politics was still considered controversial, they needed to accompany it to the constitutional court ruling. several provisions regarding dynastic politics that will still be harmonized include: first , the abolition of the requirement not to have a conflict of interest with the incumbent; second , the affirmation regarding the meaning of the nomenclature of the incumbent to avoid multiple interpretations in its implementation; in order to prevent dynastic politics, article 12 letter (p) of the pilkada bill compiled by the government states that the candidate for governor may not have marital ties, straight line up, down and sideways with the governor, unless there is an interval of at least one year. meanwhile in article 70 letter (p) it is stated that the candidate regent does not have marital ties, straight line up, down, and http://creativecommons.org/licenses/by-nc-sa/4.0/ 120 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia sideways with the governor and regent/mayor, unless there is a minimum interval of one term of office. the dynastic political debate arose when the kpk convicted the younger brother of banten governor ratu atut chosiyah, tubagus chaeri wardana in a bribery case against the chairman of the constitutional court, akil mochtar (budi, 2013; detik news, 2015). the image of the constitution is getting weaker and confined in the nets of dynastic politics. the middle way in preventing dynastic politics which tends to damage and guarantee the political rights of the people. for example, by limiting the requirements for candidates so that there are no candidates from the regional head dynasty, regional heads are also required to leave office if a relative is participating in the regional elections. the issue of preventing dynastic politics in the draft general election law has become the central theme of the form of resistance by anti-dynastic politics during regional head elections. those who are free from dynastic politics try to fight by raising the issue of political malpractice and governance of dynastic political actors. the issue became a hot ball that continued to roll until the political claim of the dynasty was forbidden in the land of their struggle. the worst possibility is corruption of regional government budget money, accumulated wealth of regional heads' subsidiaries, nepotism of regional government office structures, abuse of authority, buying and selling of office head offices, monopoly winning project tenders and even political contracts with opposition political parties. the use of campaign materials by attacking political opponents is considered legitimate if it is to repair a corrupt government system. moreover, the material used to bring down the character of a candidate who wants to perpetuate dynastic politics. the spread of issues is planned by the winning success team and sympathizers from the regional head or legislative candidates. the print media campaigning against dynastic politics is considered legal and has actually become a pioneer in eradicating dynastic political practices. academics, researchers, social activists, stakeholders, and community leaders also played an active role in filling out the polls in questioning the neo-patrialism system. dynastic political hate speech uploads on online social media and messenger services by cyber army (campaign team and sympathizers via social media) also flooded in the form of articles, memes, anecdotes, and short videos. attacking each other with the issue of dynastic politics between supporters is justified because there is no standard rule that this is a black campaign, but the way to overthrow it by identifying or generalizing dynastic politics with this abuse of power can be categorized as black campain. the abundance of prospective first-time voters for 17 years each year and the tni-polri retirement age plus the number of marriages under 17 also increase the number of voting rights users. there is no fixed ideological basis and minimal knowledge which indicates that they are included in the swing voters category5. 5 swing voters are voters who choose a party / candidate because most people choose a particular party / candidate. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 121 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia tendency for political alienation (cottam, mastor, & preston, 2004) early voters became the target of this black campaign of novice voters. they are potentially great men so abstentions (white group) or a market share of money politics. due to this determinant factor, they are easily exposed to negative campaigns and black campaigns (hikmawati & haryadi, 2017), those who tend to vote for dynastic political candidates may change faith instead of abstaining. the success team and the participants targeted novice voters as the dominant alternative in documenting the vote acquisition during voting. these swing voters consider the information available on social media to be accurate and absolute without looking for the truth. the difficulty of the kpu, ppu, bawaslu, and independent election supervisors in monitoring and taking firm action against posts on social media as campaign violations is because the perpetrators are only candidates. the biggest finding was from anonymous social accounts that were allegedly made by the winning team, both supporters and opponents. the lack of public knowledge about political campaign violations is also a challenge in itself, it can be seen that many violations of the asn or pns code of ethics do not know that supporting or liking and posting to one of the candidate pairs is considered a violation. conclusion dynastic politics in a democratic country such as indonesia is certainly contained. dynastic politics can grow and develop in indonesia as long as it is in accordance with the constitution. space for the state and space in society turned out to provide a place for dynastic politics to grow. dynastic politics in the tegal raya region is an example of a family clan capable of becoming a dynasty in constitutional political power. many factors influenced the political development of the dynasty. in the tegal raya region, dynastic politics led by the dewi sri clan had experienced a period of development. there are at least four factors that influence the political development of dynasties in the tegal raya region which was driven by the dewi sri clan. the four factors include (1) the rule of law that allows the birth and growth of dynastic politics; (2) resources; (3) community support; (4) and access to political parties. although dynastic politics in the tegal raya area have developed, the dynastic politics are in fact currently undergoing a period of reduction. this paper suggest that it is advisable for policy makers to evaluate the regulations that allow dynastic politics in pilkada. the evaluation is intended to measure the relevance of dynastic politics with regional development and community welfare. it is also recommended that parties affiliated in dynastic politics conduct introspection and reform of the factors that affect dynastic political reduction http://creativecommons.org/licenses/by-nc-sa/4.0/ 122 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by 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(2009). quick count: hak atas informasi atau pembohongan publik?. jurnal konstitusi, 6(3), 1-17. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.panturanews.com/index.php/panturanews/baca/8694/28/07/2013/duet-ikmal-edy-mendapat-rekomendasi-dpp-pdip http://www.panturanews.com/index.php/panturanews/baca/8694/28/07/2013/duet-ikmal-edy-mendapat-rekomendasi-dpp-pdip https://pilkada2015.kpu.go.id/pemalangkab/pemalang https://jateng.tribunnews.com/2013/11/06/gagal-menangi-pilkada-kotakabupaten-tegal-dinasti-dewi-sri-mulai-surut?page=2 https://jateng.tribunnews.com/2013/11/06/gagal-menangi-pilkada-kotakabupaten-tegal-dinasti-dewi-sri-mulai-surut?page=2 https://www.antaranews.com/berita/1221951/pro-kontra-politik-dinasti https://www.antaranews.com/berita/1221951/pro-kontra-politik-dinasti https://nasional.tempo.co/read/797776/dana-pengawasan-pilkada-2015-di-27-daerah-masih-bermasalah/full&view=ok https://nasional.tempo.co/read/797776/dana-pengawasan-pilkada-2015-di-27-daerah-masih-bermasalah/full&view=ok http://ejournal.politik.lipi.go.id/index.php/jpp/article/viewfile/218/94 124 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote a new dynasty is never founded without a struggle. blood makes good manure. it will be a good thing for the rougon family to be founded on a massacre, like many illustrious families. monsieur de carnavant émile zola, the fortune of the rougons http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.goodreads.com/work/quotes/303087 journal of law & legal reform volume 3(2) 2022 111 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 2, april 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: december 7, 2021 revised: february 7, 2022 accepted: april 12, 2022 available online since: april 30, 2022 how to cite: musta’in, musta’in. “legal problems of the office of religious affairs (kua) in the implementation of family mualaf counseling guidance in playen district”. journal of law and legal reform 3, no. 2 (2022): 111-132. https://doi.org/10.15294/jllr.v3i2.54624. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article legal problems of the office of religious affairs (kua) in the implementation of family mualaf counseling guidance in playen district musta'in musta'in1 1 faculty of law, universitas diponegoro, semarang, indonesia  mustainbillah98@gmail.com abstract the rules that are prescribed in islam are that a muslim is not allowed to marry a non-muslim (marriage of a different religion), a non-muslim if he wants to marry a muslim, he is required to convert to islam first or often http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i2.54624 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 https://orcid.org/0000-0001-6847-2846 112 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia referred to as a convert, the meaning of converts. themselves in order to be able to carry out marriages with their muslim partners. marriage doesn't always go as expected. with the marriage guidance carried out by kua (office of religious affairs) to prospective brides and families who have been married for a long time to provide knowledge, understanding, advice and skills to prospective brides with the aim of realizing a sakinah mawaddah warahmah family and reducing the divorce rate in the household. this study is intended to analyze the process of implementing the course for prospective brides and converts to converts at kua, playen district. the goal is to add insight and knowledge about matters relating to marriage problems, especially for the bride and groom. what is the solution run by kua playen on the implementation of the prospective bride and groom course. the goal is to add insight and knowledge about matters relating to marriage problems, especially for the bride and groom. what is the solution run by kua playen on the implementation of the prospective bride and groom course. keywords: family law, family mualaf conseling, office of religious affairs, marriage law introduction allah swt has decorated this universe with love and love as a gift from him. where does it all aim so that humans can love each other, between men and women as his creatures and is also a way to develop descendants who can continue their struggle. as is this type of difference, it is possible for offspring to exist, so that humans as a non-perishable being. humans are unique in their position as social beings who are dependent on other humans. therefore, humans are often discussed in various circles, both academics and practitioners. almost all higher education institutions study humans, works, and problems faced by http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 113 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia humans, society and the environment in which they live. humans are born on earth equipped with reason, thoughts and feelings. with this provision, the human being becomes the most perfect creature and is mandated by the creator as a leader on earth. however, with the provision of reason, thoughts and feelings, humans are also shrouded in various kinds of problems, it is even said that humans are creatures with a myriad of problems (humans with multiproblems), both problems in the family and social. before entering the family sphere, marriage is something that must be faced by every human being. marriage is the first step that must be passed by a married couple in order to form a sakinah, mawaddah, warahmah family as taught in religion (islam) and to achieve this goal it is necessary to develop premarital guidance and counseling services to prospective married couples to be more prepared navigating the household ark which will later be traversed together and if in a family problem there is a discrepancy that results in divorce or other problems, it is also necessary to develop family counseling services, in order to find a way out in accordance with the islamic religion. the advisory board for the guidance and preservation of marriage (bp4) is an agency or institution whose duties and functions are to reconcile husbands and wives who are in dispute or in dispute and to provide advice or prior guidance for prospective husband-wife pairs who will enter into marriage. this agency has been authorized by the government with the issuance of a decree (sk) of the minister of religion number 85 of 1961, which stipulates bp4 as an agency or institution that seeks to provide marriage advice and prevention of divorce.1 previously bp4 was under the auspices of the ministry of religion, but for now bp4 is an independent institution. the ministry of religion itself has a marriage guidance program organized by the district office of religious affairs. ideally, from these problems, the more problems that arise in both marriage and family life, the role of counselor/facilitator in the field of 1 zubaidah muchtar, nasehat perkawinan dan keluarga: fungsi dan tugas bp4" (jakarta: bp4 pusat, 1993). http://creativecommons.org/licenses/by-nc-sa/4.0/ 114 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia guidance and counseling is needed, guidance service activities can be carried out in group or classical formats, while the counseling process is face to face or individual counseling. , face-to-face consultation, namely a meeting between the counselor/facilitator and the counselee in order to find a way out of the problems being faced by the counselee as guided by religion to provide directions, paths and directions to individuals in need. in this case the counselor/facilitator has an important role. a new question arises “who is the counselor/facilitator? as a profession, counselors/facilitators are professionals who have expertise in counseling services. according to the concept of counseling for all, namely counseling for the wider community, in which counseling there are guidance activities. counselors/facilitators as professionals in the field of guidance and counseling must have certifications and licenses to provide professional services for the community.2 according to law number 20 of 2003 concerning the national education system, article 1 paragraph 6 states that the counselor/facilitator is an educator who is one of the educational staff who participates in providing education. furthermore, according to the book competency standards for indonesian counselors (2005) counselors are guidance and counseling professionals who must have certification and licenses to provide professional services for the community. these professionals are prepared and produced by the guidance and counseling study program, at the bachelor, master, dan doctoral levels, including professional education in it. according to shostrom and brammer, counseling is a unique and general relationship, meaning that the consular relationship with the client has a unique relationship, including the attitude of planned behavior, a schedule, is confidential and therapeutic in nature and can be fully accepted by the client.3 another opinion says professional counselors/facilitators are people who are trained in the field of counseling skills who use them as part of their work, 2 boy soedarmadji hartono, psikologi konseling (jakarta: kencana prenada media group, 2012). 3 arifin and eva, teknik konseling media massa (yogyakarta: graha ilmu, 2010). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 115 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia but do not have accredited counseling or psychotherapy qualifications, some social workers fall into this category although others are counselors/facilitators and psychotherapists who qualified.4 islam teaches that its people advise each other and help each other in terms of goodness and piety. therefore, all activities to help individuals that are carried out by acknowledging god's demands are classified as worship.5 counselors/facilitators as helpers who provide assistance to individuals who have problems or who do not have problems. by adhering to the teachings of islam, the scholar of religion as one of the counselors/facilitators of islam, especially in the office of religious affairs who develops his expertise as a counselor/facilitator in the field of religion in providing guidance and counseling for both the bride and groom (a couple) and to their families (husband and wife) which has a problem. it will be a problem if before becoming a bride, the bride and groom do not know their respective duties in the family, how to build a prosperous family, which is sakinah mawaddah, warahmah, and if there is a misunderstanding or big problem, the husband and wife should be able to solve the problem. in fact, we are able to assess what the duties of a mother or a father's duties are in the family, because the bride and groom have been in the family before, but in reality, we are less concerned about the duties or obligations of each of our parents, so that we do not fully and deeply know about the obligations. a wife or a husband's obligation. from all the obligations in the family, there is a difference of understanding between the father and mother without any way out so that it ends up in the office of the religious court. marriage is a sunnatullah that applies to all god's creatures, marriage is a way chosen by god as a way for humans to produce offspring, preserving their lives after each partner is ready to play a positive role in realizing marriage. living in a match is the instinct of all 4 richard nelson jones, pengantar keterampilan konseling (introduction to counseling skills) (yogyakarta: pustaka pelajar, 2012). 5 anwar sutoyo, bimbingan & konseling islam teori dan praktek (yogyakarta: pustaka pelajar, 2013). http://creativecommons.org/licenses/by-nc-sa/4.0/ 116 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia god's creatures, including humans, as expressed in the qur'an surah azzariyat verse 49 which means: "and we created everything in pairs so that you remember the greatness of allah swt." the desire possessed by every human being is what drives each individual to find a life partner, the family is the smallest group of humans based on marital ties, thus forming a household. to be able to carry out a marriage, one must meet the requirements for a valid marriage, thus a marriage is valid if it is carried out according to the law of each religion and belief in accordance with article 2 paragraph (1) of the marriage law. the reality of a marriage is often encountered in various kinds of confusing and worrying problems, including marriages of different religions, contract marriages or mutated marriages.'ah. the rules that are prescribed in islam are that a muslim is not allowed to marry a non-muslim (marriage of different religions). in accordance with the verse above, a non-muslim if he wants to marry a muslim, he is required to convert to islam first or often referred to as a convert, the intention of the convert himself is to be able to get married with his muslim partner. for the sake of the continuity of marriage there is no way of religious differences. which becomes a barrier, is addressed by the transfer of one of the spouses to the religion adopted by their partner. the purpose of holding a marriage is nothing but creating happy, peaceful, safe and prosperous family conditions between both parties, both husband and wife. in marriage, actually creating a harmonious life and filled with feelings of affection between two parties, mutual respect for each other's differences as long as they do not conflict with islamic law. marriage also does not always go according to the expected goals to create happiness, a sense of peace and peace. usually in the household there are conflicts between husband and wife, both those who come from inside and outside the family and conflicts in a household cannot be overcome by both parties. parties even a protracted conflict can lead to a divorce. likewise, for converts who are vulnerable to domestic conflicts because they still need guidance in establishing a harmonious family. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 117 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia family problems can also arise due to a lack of understanding of religious values. husbands or wives who come from non-muslims will find it difficult to follow in terms of worship, not social matters or interactions between families. in particular, a husband has the responsibility as the head of the family. in islam, the husband is the imam in terms of worship (prayer) for his wife and children and the priest in other matters. when teaching religious values to their children who practice islam, it will be difficult because of a lack of religious understanding. converts as people who have just converted to islam tend to experience there are many problems, both spiritual and social. complex problems occur in the family, namely the rejection of new beliefs embraced by converts, various actions that are lacking nice to be ostracized by family and loved ones who often experienced makes convert isolated from their own environment. according to the popular scientific dictionary, a convert is a person who (new) converted to islam.6 according to the indonesian ministry of religion, a convert means a person who new to islam, and still weak in faith. marriage guidance carried out by bp4 (marriage advisory, guidance and preservation agency) and kua (religious affairs office) in training guidance for prospective brides is the provision of knowledge, understanding, advice and skills to each prospective bride. this regulation was issued with the aim of increasing understanding and knowledge about married life in realizing a sakinah mawaddah warahmah family and reducing the divorce rate in the household. the material presented by a counselor/facilitator who has authority and has a deep understanding of marriage. facilities for providing marriage guidance such as syllabus, modules and graduation certificates are provided by the ministry of religion and a graduation certificate is a requirement for marriage registration. binwin is intended as a brief debriefing given to the prospective bride and groom with a certain time, 6 pius a partanto and m. dahlan al -bahry, , kamus ilmiah populer (surabaya: arkola, 1994). http://creativecommons.org/licenses/by-nc-sa/4.0/ 118 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia namely at least 24 hours of lessons. presented by resource persons who have expertise in their respective fields with lecture, dialogue, simulation and case study methods, the material includes:7 1. marriage procedures and procedures (2 hours) 2. religious knowledge (5 hours) 3. legislation in the field of marriage and family (4 hours) 4. rights and obligations of husband and wife (5 hours) 5. health (healthy reproduction) (3 hours) 6. family management (3 hours) 7. psychology of marriage and family (2 hours). this is based on the observations that the researcher made to the bride and groom who carried out the qabul consent in the area of the office of religious affairs who had followed pre-marital guidance in the office in the guidance material containing islam, the creed, istighfar, prayers for intercourse, obligations between husband and wife and so on. it is different with parents who also follow the guidance, but in a different context. parents were reminded again about the household and also given an understanding of ethics in interfering in their children's household affairs. from the results of observations, the authors are interested in researching the office of religious affairs with the aim of examining and analyzing the probematics of counselors/facilitators in the implementation of marriage and family guidance for converting families at the office of religious affairs, playen district, gunungkidul regency, several articles have mentioned the role of bp4 in achieving happiness in family life leading to the formation of a sakinah, mawaddah, warahmah family. and also the role of extension workers or counselors/facilitators in dealing with family problems. in this case the author is interested in researching the problems that then arise in the service process provided by the religious affairs office which can then be used as a reference or evaluation material so that in the future the services provided by the religious affairs office are more optimal. 7 h. zainuddin ali, hukum perdata islam di indonesia (jakarta: sinar grafika, 2006). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 119 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia method this activity is a case study report regarding the problems of counselors/facilitators in the implementation of marriage and family counseling at kua, playen district, gunungkidul regency, the reason for choosing kua was because they saw the process of guidance for prospective brides and converts to family counseling. the subject of the activity is the prospective bride and groom, both male and female, guardians, and people who are involved in the guidance process. problems or problems in the family are aspects of life that must exist in the family environment. problems that we often see around, are like economic problems. economics is one of the factors that triggers disputes in the family that can even lead to divorce and suicide, so the role of counselor/facilitator as a third party is needed in solving family problems. the main problem in the counseling process, the problem is seen from three sides, namely from the counseling institution/process itself, the client and the counselor/facilitator.8 marriage and family are a series of plots where before entering the family area, the presence of a male and female partner as a prospective groom or bride performs the stages of adjustment. this stage is called the premarital stage. before the existence of a family, it begins with prenuptials, then enters the new marriage area, a small family consisting of husband and wife is formed. however, expectations from marriage when entering the family area are not always as expected, expectations built after marriage will change with problems and can have an impact on divorce. guidance is the process of providing assistance. "assistance" here is not defined as material assistance but assistance that is supportive for personal development for the individuals being mentored.9 while 8 zahrotul hamidah, “peran badan penasihat, pembinaan dan pelestarian perkawinan (bp4) dalam mencegah perceraian (studi kasus di kua kecamatan klojen kota malang),” hikmatina: jurnal ilmiah hukum 1, no. 1 (2019): 12–23. 9 prayitno and erman amti, teknik konseling media massa (jakarta: rineka cipta, 2004). http://creativecommons.org/licenses/by-nc-sa/4.0/ 120 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia counseling is an activity where all facts are collected and all client experiences are focused on a particular problem to be resolved by the person concerned, where he is given personal and direct assistance in solving problems for the client.10 the counseling guidance that the researcher means here is an effort to provide assistance to clients in providing an understanding of something and helping solve problems (in the household) of clients with interview techniques. guidance and counseling as an aid agency is not limited to assistance to individuals or people in schools. in terms of variety, guidance and counseling services reach the reach of "social-personal guidance", which includes concern for "marriage", guidance and counseling tries to play an active role in efforts to discuss the term marriage in the perspective of providing information to the public. according to field observations conducted by researchers at the religious affairs office, playen district, gunungkidul regency. the first problem of guidance and counseling is due to personal factors of the counselor/facilitator. the second category is the problem of guidance and counseling because of the management factor of guidance and counseling itself. the third category is the problem of guidance and counseling because of the facilities and infrastructure of counseling guidance. and the fourth category is the problem of guidance and counseling because of the skill factor of the counselor/facilitator in implementing counseling services. the role of the counselor/facilitator in guiding, fostering and solving client problems is the purpose of the presence of the counselor/facilitator in the counseling process. in marriage and family counseling guidance, the presence of a counselor/facilitator is very much needed in the eyes of the community, because the counselor/facilitator handles the problems faced by the counselee, whether it is divorce, reconciliation, guardianship and even serious problems. the counselor/facilitator will try to restore a complete household as expected by religion. 10 prayitno and amti. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 121 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia from some of the problems that have been mentioned with the theory above, that in the religious affairs office, playen district, gunungkidul regency, the counselor/facilitator problem in the implementation of marriage and family counseling guidance is mainly motivated by three factors, the first is the client factor, the counselor/facilitator factor, and the method. used. the client's internal and external factors are being faced, such as mental, emotional, thought patterns and behavior and so on. while the counselor/facilitator factor is the personality or professional staff of a counselor/facilitator in dealing with client problems. unlike the method used by the counselor/facilitator, usually this is theoretical which is interpreted in the practical world as well as dealing with family problems (rational emotive behavior therapy) or interview techniques used by a counselor/facilitator such as empathy, paraphrasing, using open-ended questions and so on. and from these 3 factors, it can be understood that the problem with counselors/facilitators in the implementation of marriage and family counseling at the religious affairs office, playen district, gunungkidul regency, is in the form of facilities and infrastructure which is reflected in the services provided. in carrying out the work program, not everything can run smoothly, it must be admitted that there are still many obstacles, obstacles and shortcomings. according to the results of observations, the obstacles and constraints of kua, playen sub-district, gunungkidul regency that were encountered both from within and from outside were as follows: 1. not many people use family consulting services in consulting the existing conflicts, although there is no prohibition for the community to seek advice from the kua, the community is more likely to resolve problems with anger or their own decisions. 2. limited funds and facilities that can support the implementation of the duties of the marriage advisory and fostering body. 3. limited facilities and infrastructure, including the absence of an adequate advisory room to be able to carry out advisory in a calm and comfortable atmosphere. http://creativecommons.org/licenses/by-nc-sa/4.0/ 122 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 4. the kua of playen sub-district, gunungkidul regency, was less firm in giving warnings to prospective brides who did not take part in the advisory held. based on experience in handling family counseling, the problems faced and consulted with counselors/facilitators include families with children who do not comply with parental expectations, lack of religious understanding accompanied by a lack of interest in understanding the values of islam more for families who are converts, conflicts between members family, separation between family members due to work outside the area and children who have learning or socialization difficulties. various family problems can be resolved through family counseling. family counseling becomes effective to overcome these problems if all family members are willing to change the existing family system with new ways to help deal with problem family members. as noted at the outset, family counseling has several advantages. however, family counseling also has some obstacles in its implementation, and needs to be considered by the counselor/facilitator if you intend to do it. the obstacles in question include, not all family members are willing to be involved in the counseling process because they think they have no interest in this business, or because they are busy. there are family members who find it difficult to express their feelings and attitudes openly in front of other family members, even though counseling requires this openness and mutual trust. and should be considered by the counselor/facilitator if intending to do so. the obstacles in question include, not all family members are willing to be involved in the counseling process because they think they have no interest in this business, or because they are busy. there are family members who find it difficult to express their feelings and attitudes openly in front of other family members, even though counseling requires this openness and mutual trust. and should be considered by the counselor/facilitator if intending to do so. the obstacles in question include, not all family members are willing to be involved in the counseling process because they think they have no interest in this business, or because they are busy. there are family members who find it difficult to http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 123 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia express their feelings and attitudes openly in front of other family members, even though counseling requires this openness and mutual trust. another obstacle is the existence of mixed marriages. mixed marriage here has two meanings, namely the first mixed marriage is a marriage between two people in indonesia who are subject to different laws because of different nationalities. second, marriages between people of different nationalities, if both are muslims, they will be married at the kua. the purpose of marriage is to create peace, love and prosperity, so there must be one command, namely one religion. from the researcher's search through documentation data and strengthened by interview data in terms of guidance, there were recorded marriages between converts husbands and muslim wives, and there were also muslim husbands and converts' wives. regarding marriage guidance in the form of independent guidance, guidance requires a third party as a spokesperson, because basically whatever ethnicity, race, and culture, guidance is needed for every bride and groom to support the formation of a sakinah, mawaddah, warahmah family. other problems that are one of the inhibiting factors for the realization of guidance at the office of religious affairs include, the existence of prospective brides who do not follow marriage guidance, and who follow the guidance of most brides and grooms do not know religious material or lack of religious knowledge so that in the process of guiding the bride and groom they are passive and counselors the facilitator is active. and in the guidance process there is no module available as an educational reference in forming a sakinah, mawaddah, warahmah family, and also very limited guidance time. family counseling is basically the application of counseling in special situations. this family counseling focuses on problems related to the family situation and its implementation involves family members. according to d. stanton family counseling can be said as a counselor/facilitator, especially non-family counselor/facilitator, namely family counseling as (1) a modality, namely the counselee is a member of http://creativecommons.org/licenses/by-nc-sa/4.0/ 124 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia a group, which (2) in the counseling process involves the nuclear family or partner. if husband and wife understand and fulfill their respective roles in the family, it is not easy for sharp disputes to occur. however, if husband and wife do not understand their respective roles in the family or in other words neglect their duties and obligations as husband or wife, family counseling views the family as a whole that family members are an inseparable part of the child (the counselee/client) both in viewing the problem and in solving it. as a system, the problems experienced by a family member will be effectively overcome if it involves other family members. at first, family counseling was mainly directed at helping children to adapt better to learn about their environment through improving their family environment. the clients are people who have growth problems in the family. results & discussion i. family concept in the marriage law (national & islamic law) it is not enough to build a family mahligai with only feelings, materials, and reckless capital. islam has led its followers to build a sakinah family after the marriage is carried out. to help build a sakinah, mawaddah, warahmah family, sometimes a prospective bride and groom prepare well, including marriage guidance and counseling. marriage counseling is an effort to help prospective husband and wife or husband and wife couples by professional counselors/facilitators so that they can develop and be able to solve problems in ways that are respectful, tolerant, and with understanding communication, so as to achieve family motivation, development, independence. and well-being of all family members. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 125 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in everyday life, it turns out that the effort to create a sakinah family is not an easy matter, in the midst of this current of life. let alone achieving an ideal family form, even maintaining the integrity of the household is already an achievement in itself, so it is time for every family to reflect on whether they are walking on the corridor that allah wants in the mahligai, or whether they are walking contrary to what what he wants. islam teaches that the family and household are safe, happy and strong institutions for every member of the family, because the family is the smallest environment or community unit that acts as an institution that determines the style and form of society. the love, security and happiness felt by a person, especially the children in the family, will give him confidence and confidence in himself to face various problems in his life. parents are the first people who are expected to provide assistance and guidance in solving children's problems. while a mother is a symbol of love, calm and serenity. the qur'an is the basis for building a sakinah family and overcoming problems that arise in the family and society.11 the failure to build a happy marriage today, seems to be triggered by not many couples who build their married life according to the instructions of allah and the prophet. in terms of islamic teachings, humans are guided into married life, starting from how to choose a life partner, how to build a sakinah family, to how to resolve marital conflicts based on the instructions of the qur'an and hadith. so that husband and wife can realize sakinah, mawaddah, warahmah. guidance and counseling on marriage and family on a preventive function, to prevent the emergence of various problems in marriage, due to the unpreparedness of the couple to enter marriage and the couple's lack of insight into marital life in accordance with islamic teachings. meanwhile, marriage and family counseling can function curatively in solving problems or problems faced in marriage, by inviting individuals or 11 fitrotin jamilah, “peranan (bp4) dalam membina keluarga sakinah dan penyelesaian penyelisihan perkawinan islam,” jurnal al-fikrah 2 (2019). http://creativecommons.org/licenses/by-nc-sa/4.0/ 126 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia family members to re-realize their existence in the various roles they play in the family in accordance with islamic teachings. one of the principles of marriage and family counseling guidance in the office of religious affairs is to form a sakinah, mawaddah, warahmah family. this is what is used as a guide in carrying out islamic marriage and family counseling guidance. so that it is hoped that the objectives of islamic marriage and family counseling can be achieved as follows:12 1. helping individuals prevent problems related to marriage, among others, by helping individuals understand the nature of marriage, the purpose of marriage, the requirements of marriage, their readiness to carry out marriages, and carry out marriages according to islamic teachings. 2. helping individuals to prevent problems related to married life, among others, by helping individuals understand the nature of family life, the purpose of family life, how to foster a sakinah mawaddah warahmah family life, understand how to carry out household life coaching in accordance with islamic teachings. 3. help individuals solve problems related to marriage and domestic life, by helping individuals understand the condition of their family and environment, the problems they face, and ways to overcome them 4. help individuals maintain the situation and conditions of marriage and household from a bad situation (because there are problems) to a good situation, and from a good situation to be even better. looking at the purpose of this islamic marriage and family counseling guidance, the counselor/facilitator as a da'wah interpreter is expected to bring change to the people in a better direction. da'wah interpreters are people who carry out da'wah, who change the situation to another situation according to allah's provisions, both individually and in 12 wildana setia warga dinata, “optimalisasi peran badan penasehatan, pembinaan dan pelestarian perkawinan (bp4) dalam rangka pembentukan keluarga sakinah di kabupaten jember,” journal de jure 7, no. 1 (2016): 78, https://doi.org/10.18860/jfsh.v7i1.3508. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 127 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia groups (organizations), as well as carriers of information and islamic missions. discussing about guidance will never end, because without realizing that guidance is realized by itself in any form in life. there is real guidance, such as marriage and marriage guidance at the religious affairs office, playen district, gunungkidul regency. however, guidance and counseling at the office of religious affairs does not always run smoothly. there are certain factors that cause disputes in the household so that it cannot be denied by anyone, ranging from small problems to big problems such as economic problems, different principles, jealousy, or because of infidelity. in this case, the office of religious affairs has the right to provide guidance and counseling to prospective brides and their families in fostering a sakinah, mawaddah, warahmah household. the problematic form of the counselor/facilitator in the implementation of marriage and family counseling guidance is in terms of institutional facilities and infrastructure. the lack of facilities in the government aimed at the religious affairs office in providing comfort in the guidance and counseling process so that the process can have a negative impact on psychological counseling. it is time and it is proper for us to pay attention to the problems faced by the counselor/facilitator to be evaluated later, because for the role itself, the consular is essentially the best way to provide the best efforts and methods according to his role and duties in the office of religious affairs such as bp4, consulting services, mediation services, and others who have become his obligation to serve the community in terms of marriage and dealing with family problems. the portrait of the sakinah family can be seen from the three categories of family buildings, namely the ideal family, the moderate family and the less ideal family. the uswatul khasanah sakinah family group is still at the level of not achieving the ideal family because it is still in the process of becoming a sakinah family. to achieve the ideal family, it still takes quite a long time, but the community's efforts to achieve it can http://creativecommons.org/licenses/by-nc-sa/4.0/ 128 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia be seen from the spirit of community cooperation in building development facilities and infrastructure. a. ideal family the concept of a sakinah family or a peaceful family according to society is based on a person's faith and morals, not in terms of material possessions. the sakinah family is not only limited to the nuclear family, but includes extended family/relatives and neighbors. this concept emphasizes that the environment affects the formation of a sakinah family. religious environmental conditions have the potential to form a sakinah family, but that sakinah cannot be separated from the work ethic of the community, because with hard work a person's economic condition will strengthen, at least live well, his needs are fulfilled. establishment in the concept of the sakinah family returns to each individual and how his attitude is in dealing with the situation.13 according to society, the ideal family is a family that can fulfill material and spiritual needs. educated, have a steady income, husband and wife work together to achieve their goals, succeed in educating children well, harmonious relationships are established in the family, conflicts that occur are positive, active in socio-religious activities and can be role models in society. in general, people view the ideal family requirements starting from the process of selecting a mate by looking at family background, religion, behavior, economic conditions, adequacy, being able to make the family happy and appearance is also a consideration. the most important religion, the important economic problem is the willingness to work hard, because degrees and ranks do not guarantee peace in the household. the results of the fucus group discussion (fgd), some of the opinions expressed by the participants can be formulated that the ideal family in terms of religion does not always come from the marital 13 zakyyah iskandar et al., “pasangan suami-istri menuju keluarga sakinah”, al-ahwal: jurnal hukum keluarga islam 10, no. 1 (2017): 85–98. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 129 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia background of the community belonging to the santri and the santri, but can be formed from the community belonging to the santri with the abangan, the abangan with the abangan. , as well as abangan with students. when referring to the sakinah family size set by the ministry of religion, which emphasizes more on the spiritual aspect or measuring the level of faith, while the community's level of faith is recognized as experiencing ups and downs, the sakinah label will also experience a shift. b. enough family adequate family, family that has fulfilled spiritual and material needs but is still limited, or mediocre and has no savings. a family that is still having bickering, the closeness of mother, father and child is normal and there is cooperation in the household. sufficiency in economic matters is relative, even if you are in a state of deficiency or limitation, if you can accept it sincerely you will feel sufficient and satisfied with what you have. like various views from the residents of the uswatun khasanah group, they agree that a family that is peaceful or sakinah requires mutual openness between husband and wife, even though the needs are high, and the income is low but it can be sufficient, the key is to try and accept what is. sufficient or middle position, between two contradictory things for javanese people is what is considered ideal. for the javanese, this is the embodiment of a value that is considered the most important: sak madya. this means that those who are moderate, sak are sufficient, are in the middle, if you are rich you don't have to be very rich but also not very poor, urip sak madya living a moderate life is considered ideal. family buildings consisting of abangan and santri or vice versa or abangan with abangan and can create a peaceful family that loves each other and lives prosperously in reality can be classified as an adequate family, as well as a family built between santri and santri, if on the way they still often happen disputes or not being active in religious and community activities. http://creativecommons.org/licenses/by-nc-sa/4.0/ 130 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia c. family less than ideal families that are less than ideal, according to the family community formed from illegitimate marriages, have not fulfilled their spiritual and material needs. have not performed worship regularly and religious knowledge is low. economic conditions are limited, husband and wife are less responsible for the family, are not open to each other so that often fights occur. cases of marriage that occur between abangan men and abangan women can be sakinah few in number. in general, marriage from the beginning was not good, in the course of the family it tends to be not good. likewise, marriages between abangan men and santri women are generally less than ideal, even though the wife is active in worship but the man has never practiced religion. the situation in the household is difficult to contain a religious atmosphere because the leader in the family does not set a good example and does not live an islamic life, husband drunk, likes to drink and gamble. conclusion this study concluded that islam provides important lessons for human life, especially as a determinant in making the quality of human understanding good which has an impact on life in this world and in the hereafter. this is what makes that thought, or the wrong view at first about islam, gives an answer to that view with a truth. and finally, from this understanding, it creates behavior that is in accordance with what is prescribed in islam. religious guidance carried out by converts is adjusted to the religious conditions of these converts. because it could be someone who did a religious conversion before had to know islam more deeply before deciding to convert to islam. however, there is also someone who still lacks knowledge so that it requires guidance that is more related to the provision of religious teachings. because it could be that a convert who already has religious provisions can make him understand more and also understand more about islam than a muslim from birth. this can be seen http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 131 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as they have learned while learning about the teachings of islam. and people who are less concerned about the role of counseling guidance in the office of religious affairs. in terms of the problems of marriage and family counseling guidance in the religious affairs office, playen district, gunungkidul regency, the counselor/facilitator seeks to maximize its role as a helper, motivator and mediator in forming a sakinah, mawaddah, warahmah family. the author gives several suggestions so that as material for our evaluation, all parties involved, starting from the government, the ministry of religion, the religious affairs office itself and the community should participate optimally in realizing the goal of marriage guidance, namely improving the quality of the sakinah family to achieve society and the nation. advanced indonesia. kua and consulting services should be the official institutions that mediate the litigants in divorce. the two religious courts only process divorce cases if they receive a recommendation from this institution. if this can be realized, the authors believe that kua will be better known and more optimal in carrying out efforts to improve the quality of marriage. the three communities as legal subjects are expected to have awareness that kua is an institution that has a goal to improve the quality of marriage. realizing a sakinah and eternal family according to islamic teachings. religious guidance for converts can be carried out with various patterns or methods including, first, internal coaching, namely learning that is obtained independently and from the family which includes: exemplary patterns, giving direction and advice, and discussing. second, external guidance, namely learning obtained from religious leaders, the community and also islamic institutions which include providing religious material, personal approach, and khalaqah method. so, from various kinds of coaching patterns, it will make it easier for converts to understand the teachings of islam that are conveyed. so that they do not feel alienated as someone who is new to islam, because of the attention given by muslim brothers. http://creativecommons.org/licenses/by-nc-sa/4.0/ 132 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, 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(2006). hukum perdata islam di indonesia. sinar grafika. acknowledgment none funding information none conflicting interest statement all authors declared that there is no potential conflict of interest on publishing this article. publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. http://creativecommons.org/licenses/by-nc-sa/4.0/ 134 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia about author(s) musta'in is a postrgraduate student at the faculty of law, universitas diponegoro semarang, indonesia. he also involved in many humanitarian and legal aid project in some legal aid centers. http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cdddd7206d • 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: 7fbf23cedfd02037 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(3) 2020 437 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article law reform in nigeria: a historical perspective1 tonye clinton jaja1, emmanuel o. anyaegbunam 1senior research fellow, national institute for legislative and democratic studies (nilds), abuja, nigeria. 2 director – african centre for parliamentary & constitutional studies tonyeclintonjaja@yahoo.com cited as jaja, t.c., & anyaegbunam, e.o (2020). law reform in nigeria: a historical perspective. journal of law and legal reform, 1(3), 437-444. doi: https://doi.org/10.15294/jllr.v1i3.36702 abstract the paper is intended to analyze and describe the legal reform in nigeria from historical perspective. this country, nigeria, has a long and complicated history of its legal system. law and legislation in nigeria is affected by some internal and external factors, such as culture, and globalization. this paper seeks to appraise the history of law reform in nigeria with comparative analysis of other jurisdictions, evaluate the current state of legislation in nigeria, highlight the challenges and obstacles that have imperiled law reform in nigeria and articulate relevant remedial measures as the solution for these age-long problems. keyword: law reform; nigeria; historical perspective; comparative 1 adapted from the text a paper delivered at the training of nigerian law reform commission lawyers on july 20 – 21, 2017 at the commission’s office, abuja submitted: 12 january 2020, revised: 29 april 2020, accepted: 30 april 2020 journal of law and legal reform (2020), 1(3), pp. 437-444. doi: https://doi.org/10.15294/jllr.v1i3.36702. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i3.36702 https://doi.org/10.15294/jllr.v1i3.36702 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 438 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 437 table of contents ………………………………………………………….. 438 introduction …………………………………………………………………. 438 definition of terms ………………………………………………………… 440 i. codification ……………………………………………………………… 440 ii. consolidation of laws ……………………………………………… 441 iii. law review …..…………………………………………………………….. 441 law reform in nigeria ……………………………………………………. 442 i. law reform …………………..…………………………………………… 442 ii. law revision ..…………………………………………………………….. 442 conclusion …………………………………………………………………….. 443 references ……………………………………………………………………... 444 introduction change and improvement cannot be affected without legislation. legislation will be much improved if it has a law reform background or input which brings with it a high level of thoroughness. without this, some laws may begin to manifest defects and become liable to amendment soon after coming into force. professor c. o. okonkwo, san july 16 – 17, 2012 in abuja law is an inevitable instrument that enables a state to carry out its activities and its desired ends. it is the body of laws in its totality that characterise the state as the supreme organ or authority under whose power and influence every person or organ within its sovereign jurisdiction are made subject to. hence, supremacy of the constitution and rule of law become the compelling dictum of virtually all democracies and even undemocratic entities. in essence, law regulates and controls the affairs of man within a given society. as aptly reasoned by kefas magaji and p. c. okorie: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 439 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law refers to a system of rules which a particular country or community recognizes as regulating the actions of its members and which it may enforce by the imposition of penalties. it is a system of rules that govern a society with the intention of maintaining social order, upholding justice and peaceful co-existence (magji & okorie 2017). b. nwabueze lend support to the above stance in his combination of law as an attribute of state power in these words: in more succinct language, the state denotes power and force exercised “in the name of law”; it connotes a legal order, a body of laws that regulates, conditions and qualifies the exercise of power backed by force within a given community (nwabueze 2010). it follows that the 1999 constitution of the federal republic of nigeria was in sync with the above cited postulates when it provides vide section 4 (2) that: (2) the national assembly shall have power to make laws for the peace, order and good government of the federation or any part thereof with respect to any matter included in the exclusive legislative list set out in part i of the second schedule to this constitution. every society or human community grows and in the course of that, the laws of the land follow the dynamic changes and attendant innovation and update. the long title to the nigerian law reform commission act, cap. n118, laws of the federation of nigeria, 2004 captured this universal reality as: an act to set up a law reform commission for nigeria to undertake the progressive development and reform of substantive and procedural law applicable in nigeria by way of codification, elimination of anomalous or obsolete laws and general simplification of the law in accordance with general directions issued by the government, from time to time and for matters connected therewith. it is in the context of this core mandate of the law reform commission that this paper seeks to appraise the history of law reform in nigeria with comparative analysis http://creativecommons.org/licenses/by-nc-sa/4.0/ 440 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of other jurisdictions, evaluate the current state of legislation in nigeria, highlight the challenges and obstacles that have imperiled law reform in nigeria and articulate relevant remedial measures as the solution for these age-long problems. definition of terms this subject matter calls for definition, clarification and highlight of key terms which are as follows: i. codification black’s law dictionary has it as: the process of compiling, arranging, and systematizing the laws of a given jurisdiction, or of a discrete branch of the law, into an ordered code. 2. the code that results from this process (gardner 2016). despite the above definition, codification of law is a term that is open to many qualification and description to many people. as was aptly remarked by m. sayers: codification means different things to different people. at its simplest, it may be no more than the reduction to statutory rules of a relatively confined area of common law. if the area is small, the result may be a relatively simple set of statutory provisions. the occupiers’ liability act 1957 c31 (uk) is often regarded as a prime example. but for many codifications is a more ambitious, and inevitably less attainable dream. for them, it represents the desire to reduce the whole body of the law, or very large tracts of it, to a simple set of clearly expressed principles (okonkwo 2012). we must advert our minds to the roman legacy through the code of justinian of 529ad, which codified all existing legislation from the time of emperor hadrian, 117 – 138ad. it was chosen as the baseline with modification necessary to “purge the errors and contradictions, to retrench whatever was obsolete or superfluous”, retaining only such laws as were “wise and salutary and best adopted to the practice of the tribunals and the use of the people” (nwabueze 2017). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 441 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia codification entails a diligent derivation or taking out of all laws within a particular subject matter and condensing same into a single act (code) in order to attain predictability, simplicity and certainty within a legal regime. in this wise, the criminal code act, occupiers liability act of 1957 and the company and allied matters act, become readily available examples. ii. consolidation of laws consolidate means to combine, amalgate, assembly or unify into one mass or body. therefore, it is the act of combining two or more separate laws on the same subject into a single statute. consolidation goes further to restructure the words of a law with the view to make same shorter, clearer and more accessible. it bears the same connotation with codification but differs in the sense that it advances into editing and restructuring of the words of the statutes for clearer and better usage. law revision can be adjudged as consolidation of laws. iii. law review this is a preliminary step in readiness for a law revision or law reform exercise. it involves a diligent comprehensive research and prudent analysis and assessment of the existing laws with the view of identifying areas of the laws that require reform or revision. law review will entail holistic review and analysis of books, articles, journals and other materials by learned scholars. thus, it will help to expose problems and shortcomings in the existing legislations and proffer lasting possible solutions. if we planned and proactively executed, workshops and seminars by stakeholders and learned specialists in all fields of law will serve this purpose prior to a law reform or revision exercise. http://creativecommons.org/licenses/by-nc-sa/4.0/ 442 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law reform in nigeria i. law reform this involves a progressive improvement in the existing law in order to meet the changing needs of a society. it is simply means the dynamic attunement of the existing laws of a society in line with its growth and development. law reform also includes the introduction of entirely new legislations in a legal system as required by the technological and development trend of the society. as aptly affirmed by wikipedia: law reform or legal reform is the process of examining existing laws, and advocating and implementing changes in a legal system, usually with the aim of enhancing justice or efficiency. intimately related are law reform bodies or law commissions, which are organizations set up to facilitate law reform. law reform bodies carry out research and recommend ways to simplify and modernize the law. many law reform bodies are statutory corporations set up by governments, although they are usually independent from government control, providing intellectual independence to actually reflect and report on how the law should progress. law reform activities can include preparation and presentation of cases in court in order to change the common law; lobbying of government officials in order to change legislation; and research or writing that helps to establish an empirical basis for other law reform activities. it is pertinent to note, that law reform must be anchored by a legislation. thus, involving a substantive legislative change. ii. law revision the underlying purpose of a law revision, is to update the set of statues in force in a legal system at a particular date, usually within a period of ten years. hence, its focus is to incorporate all amendments and adaptations made to the statutes since the last http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 443 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia revision exercise and also eliminate all repealed, obsolete, spent and other unnecessary matters. h. m. marshall’s definition is instructive that: the purpose of a statute law revision (in some countries described as a “reprint”) is to prepare and provide for public use an up-to-date set of the statutes in force in a particular territory at a particular date, incorporating all amendments and adaptations made thereto since the previous revision and eliminating therefrom all repealed, obsolete, spent and other unnecessary matters. this type of law revision must be distinguished from the process of law reform which involves the making of substantive legislative changes in the statute and other law of a territory with a view to its improvement and modernization. our position in nigeria is that law revision is authorized and governed by specific statute through an ad-hoc committee under a chairman of the law revision committee. it is carried out within intervals of ten to fifteen years. in this wise, there 1948, 1958, 1990 and 2001 – for laws of the federation of nigeria 2004 and consequent revision of the 2004 in 2010. the law requires the enactment of a specific legislation by the national assembly to bring the new statutes into force. law revision is not law reform because the law revision committee has no authority to reform laws. where the law revision committee encounters a law reform subject, it should refer same to the national assembly for appropriate enactment. the (laws of the federation of nigeria) act, 2007 which authenticated lfn 2004 served this saving measure for the 2004 exercise which had no force of law until the 2007 enactment. conclusion this paper concludes that law reform in nigeria has a long history and its own problems. some changes and improvements of laws in nigeria based on the special legislations, however, the legislation in fact does not reflect some people opinion. the underlying purposes of a law revision is to update the set of statues in force in a legal system at a certain date, usually within a period of ten years. hence, its focus is to incorporate all amendments and adaptations made to the statutes since the last revision exercise and also eliminate all repealed, obsolete, spent and other unnecessary matters http://creativecommons.org/licenses/by-nc-sa/4.0/ 444 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references gardner, b.a. (2016). black’s law dictionary” (8th ed). st paul: west publishing co. mn 20004. magji, k., & okorie, p. c. (2017). amendment of legislation, law review and law reform, presented for parliamentary staff of ecowas member states july 6, 2017, at ecowas parliament, abuja. nwabueze, b. (2010). colonialism in africa: ancient and modern vol. 1. ibadan: gold press limited. nwabueze, b. (2017). save our constitutional democracy from emasculation. ibadan: john archers publishers ltd. okonkwo, c.o. (2012). the imperatives of law reform in the law-making process. unpublished paper, abuja, july 16 – 17, 2012. wikipedia (2010). law reform, retrieved from http://enwikipoedia.org/wiki/law_reform#december http://creativecommons.org/licenses/by-nc-sa/4.0/ http://enwikipoedia.org/wiki/law_reform#december journal of law & legal reform volume 1(4) 2020 549 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article are government appeals on physical distancing during the covid-19 pandemic effective? an analysis from law and public policy busrol chabibi1, irfan jamallullail2 1,2 researcher of center for democracy and religious studies, indonesia  busrol96@gmail.com cited as chabibi, b., & jamallullail, i. (2020). are government appeals on physical distancing during the covid-19 pandemic effective? an analysis from law and public policy. journal of law and legal reform, 1(4), 349-562. https://doi.org/10.15294/jllr.v1i4.39890 abstract this research aims to analyze the attitudes subjective norms and government appeals towards physical distance intentions during the covid-19 pandemic in indonesia. the study was conducted in 7 provinces in indonesia by taking a sample of 104 respondents selected by purposive sampling. data collection is done by collecting likert scale questionnaires to measure 14 indicators. multiple linear regression analysis techniques are used to measure the effect of independent variables on the dependent variable with the help of spss 16. the results of this study find facts, subjective norms and government appeals to have a positive and significant effect on physical distance goals. keywords: attitude; norm; appeal; intention of physical distancing journal of law and legal reform (2020), 1(4), pp. 549-562. doi: https://doi.org/10.15294/jllr.v1i4.39890 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 11 march 2020, revised: 22 may 2020, accepted: 30 june 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:busrol96@gmail.com https://doi.org/10.15294/jllr.v1i4.39890 https://doi.org/10.15294/jllr.v1i4.39890 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 550 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 549 table of contents ………………………………………………………….. 550 introduction …………………………………………………………………. 550 limitation of terms and definitions ………..…………………….. 552 method …………………………………………………………………………… 554 result and discussion ……………………………………………………. 557 i. test the effectiveness of physical distancing rules .. 557 ii. analysis the effectiveness of physical distancing rules ………………………………………………………………………….. 559 conclusion …………………………………………………………………….. 560 references ……………………………………………………………………... 560 introduction humans in addition to acting as individual beings also play a role as a social creature zoon politicon (aristotle). the role of zoon politicon social beings in social life is actually not easy. every human being has personal interests and needs that are almost always in conflict with each other. as a result, disharmony and imbalances occur in social life. then the rules of life are needed in the middle of society, which are often referred to as legal. the interests and needs of the zoon politicon community in indonesia are currently being tested by the covid-19 outbreak. without an individual's awareness of physical distancing and remaining ignorant of social distancing, it will result in a large wave of the covid-19 pandemic in various regions. if this continues to be ignored, indonesia is predicted to experience a prolonged crisis. to accelerate the recovery of the covid-19 outbreak, the government of the republic of indonesia has appealed to the public with various circulations. being aware of government appeals is considered to be the best way to slow the spread of the covid-19 virus. the role of public awareness of the appeal as an attitude in harmony with the purpose of the law in ensuring the certainty of life and justice in society. there is always a difference between the pattern of behavior desired by the community and the pattern of behavior desired by the norm / rule of law. these patterns of disparity tend to result in conflict and even social tensions until the time of public tensions. public http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 551 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia tensions occur because the laws made have not been fully used as a standard (guidelines) in community actions because there is no legal awareness attitude. on the other hand, subjective norms developed in the community of the importance of work, study and worship at home have been campaigned by various parties. subjective norms are considered a strategy in building public awareness of the government's call. support for health workers, coupled with psychological support for families affected by the economy has emerged by itself after the appeal of the government. efforts to support each other socially, physical distancing, to spraying disinfectants. the government's appeal to all indonesian people, both from the ministry of education and culture, and the ministry of empowerment of the state apparatus and bureaucratic reform, and mui to remain at home is considered to have no strong legal basis. the legal basis that has been issued from each institution such as the circular of the minister of education and culture of the republic of indonesia number 04 of 2020 concerning the implementation of education policy in the emergency period spreading coronavirus disease (covid-19), circular letter of the minister of administrative reform and bureaucracy reform (panrb) no. 36 of 2020 regarding restrictions on activities to travel outside the region and/or homecoming activities for the state civil apparatus in efforts to prevent the spread of covid-19, mui fatwa number 14 of 2020 concerning organizing worship in situations of an outbreak of covid-19 (mui, 2020) and many other circular letters (zamakhsyari, utama, sulistyanti, baharudinsyah, & nabilla, 2020; saputro, 2020; mardiansyah, 2020; novanda, 2020). although many circulations appealed to the community to work at home, in fact were unable to stem the tide of new covid-19 suspect patients. especially people who do not have the privilege of staying at home are bullied because their economy is the main reason. many workers still rely on day-to-day work to earn income, such as casual daily laborers, factory employees, couriers, online motorcycle taxi drivers, shop employees, vegetable traders and many other small traders (novanda, 2020, mardiansyah, 2020). ramadayanti (2020) on her research “covid-19 in the perspective of one health approach and law enforcement”, emphasized that the appeal related to social distancing has less effect on compliance by the community. therefore, it is suggested to become a law that can bind the community and have higher compliance. with various background problems, the authors examine how much influence attitudes, subjective norms and government appeals to the obedience of the http://creativecommons.org/licenses/by-nc-sa/4.0/ 552 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia community to continue working, studying, and worshiping at home during the covid-19 pandemic in indonesia. limitation of terms and definitions kazemi (2013) attitude is a general feeling of society about the desire or behavior to do something. according to suprapti (2010: 135) attitude is an expression of a person's feelings that reflects his likes or dislikes towards an object. because a person's attitude is the result of a psychological process, it cannot be observed directly but must be concluded from what is said or done. as according to simamora (2002: 157) four functions of attitude is the basis that motivates the formation and strengthening of positive attitudes towards an object that satisfies the needs or negative attitudes towards objects that cause harm, punishment, or threats. attitudes towards behavior (attitude toward behavior) is a positive or negative evaluation of an object, person, institution, event, behavior, or intention (ajzen, 2005). here are some definitions of attitudes from experts (sangadji & sopiah, 2013: 194): a. the definition of attitude according to engel (2006) is a mental and nerve related to the readiness to respond, organized through experience, and has a direct and / or dynamic influence on behavior. b. meanwhile according to kotler (2009), attitude is a behavior that shows what consumers like and dislike. c. in addition, mowen and minor (2002) describe attitudes as affections or feelings for or against a stimulus. meanwhile, subjective norms are one’s perceptions or views of other people's beliefs that will influence the interest in doing or not doing the behavior that is being considered by septifani (2014). according to huda (2012) subjective norms are one's perceptions or assumptions about other people's expectations, certain behaviors that a person will or will not do. because this perception is very subjective in nature, this dimension is referred to as subjective norms. lee (2009) states that the influence of subjective norms is the main predictor in behavior decision making where the influence of subjective norms is able to suggest, process and reinforce an individual's actions or behavior. according to the indonesian dictionary (kbbi), appeal means vocation; request (exclamation); or solicitation. appeal to keep studying, working, and having http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 553 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia religion at home is a public policy in the form of a circular. in article 5 of law no. 10 of 2004 concerning the formation of regulations and regulations explains that in forming the statutory regulations the invitation must be based on the principles of the establishment of regulations that include good legislation, such as: 1. clarity of purpose 2. the right institutional or forming organ 3. conformity between type and material content 4. can be implemented 5. usability and usability 6. clarity of the formula 7. openness from various backgrounds and theories, the framework of this research, using the following models: figure 1. research model from the picture above the research model can be taken as follows: h10: there is no influence between attitudes toward intention to behave h1a: there is an influence between attitude towards intention to behave h20: there is no influence between subjective norms on behavior intentions h2a: there is an influence between subjective norms on behavioral intentions h30: there is no influence between the government appeal on behavior intentions h3a: there is an influence between the government appeal to behavioral intentions attitude government appeal behavioral intentions subjective norms http://creativecommons.org/licenses/by-nc-sa/4.0/ 554 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia method this type of research uses explanatory research that uses a quantitative approach. the sample size used was 104 respondents. the research sampling technique used purposive sampling, namely respondents in the yellow and red zones, and were at least 17 years old. the questionnaire was given online for three weeks. in measuring the questionnaire, the selection of answers with a 14-point likert scale was used. the scale used has an assessment where 1 (strongly disagree), 2 (disagree), 3 (neutral), 4 (agree), and 5 (strongly agree). from the research data, the respondent data obtained in table 1 is as follows: table 1. research respondents demographics items percentage % gender male 46.2 women 53.8 age 17-20 23.1 21-25 61.5 26-30 8.7 31-35 2.9 36-40 1.0 41-45 1.0 46-50 1.0 more than 50 years 1.0 education high school 43.8 diploma 2.6 bachelor (s1) 52.8 postgraduate (s2) 0.4 doctoral (s3) 0.4 profession field of tourism services 1.0 health sector 1.0 government sector 9.6 education sector 1.0 trade sector 9.6 telecommunication field 1.0 financial services 4.8 field of personal services 6.7 construction sector 1.9 agriculture sector 1.9 social worker 1.9 students 58.7 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 555 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia housewife 1.0 average income per month below 2 million 67.3 2-5 million 23.1 6-10 million 3.8 above 10 million 5.8 province banten 1 jakarta 1 west java 4.9 central java 84.7 east java 5 east kalimantan 2 west nusa tenggara 1 source: 2020 data process results by authors based on table 1, it can be known that the respondents in this study amounted to 104 male respondents as many as 46.2% and female respondents as many as 53.8%. if based on age, the age range is dominated by respondents aged between 21-25 years with 61.5%, the rest is in the age range of 17-20 years with 23.1%, 26-30 years with 8.7%, 31-35 years with 2, 9%, and age (36-40, 41-45, 46-50, and more than 50) years of 1% each. then based on the most recent education the respondent is dominated by respondents who have an educational background of s1 graduates that is as much as 52.8%, the remaining 43.8% of high school graduates are equivalent, 2.6% are diploma graduates, 0.4% graduate s2, and 0.4% phd graduates. based on the type of work the respondent is dominated by the respondent status as a student (s1 / s2 / s3) that is as much as 58.7%, the rest in the government as much as 9.6%, as much as 9.6% in the commercial sector, personal services as much as 6.7%, financial services as much as 4.8%, and other jobs as much as 10.6%. then based on the average income of respondents per month, the majority of respondents have incomes below rp. 2,000,000, as much as 67.3%, respondents earn 2-5 million per month as much as 23.1%, respondents earn 5-10 million per month as much as 3.8%, and respondents earn more than 10 million per month as much 5.8%. whereas if based on the origin of the respondents, this study was dominated by respondents from central java province, as many as 84.7%, the rest came from west java province 4.9%, east java province 5%, jakarta province 1%, banten province 1% , east kalimantan province 2%, and west nusa tenggara province 1%. to measure the answers of respondents used a 5-point likert scale questionnaire, starting from number 1 (strongly disagree) to 5 (strongly agree). http://creativecommons.org/licenses/by-nc-sa/4.0/ 556 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia validity and reliability testing is also done to test the instruments used. the results of testing the validity and reliability are shown in tables 2 and 3 as follows: table 2. kmo and bartlett of sphericity test results test score sample adequacy kmo 0.891 bartlett of sphericity 0.000 source: 2020 data process results by authors from the results of the kmo and bartlett test of sphericity, it can be seen that the kmo sample adequacy value is 0.891, which means the instrument testing value is good, while the bartlett of spherecity value is 0.000, which means that it is significant. then it can be said the results of testing the validity of the instruments in this study are valid. table 3. test results for convergent validity and reliability item score attitude (cr=0.794) a1 0.813 a2 0.678 a3 0.756 a4 0.723 subjective norms (cr=0.902) sn1 0.909 sn2 0.907 sn3 0.900 government appeal (cr=0.861) ga1 0.803 ga2 0.822 ga3 0.808 ga4 0.855 behavioral intentions (cr=0.925) bi1 0.907 bi2 0.882 bi3 0.886 source: 2020 data process results by authors http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 557 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table 3 shows that the reliability values of the instruments in this study were good. cronbach alpha attitude variable is 0.794, subjective norm variable is 0.902, government appeal variable is 0.861, and intention to behave is 0.925. from the cronbach alpha value of each instrument also more than 0.6, it can be concluded that the instruments used in this study are reliable. result and discussion i. test the effectiveness of physical distancing rules the test used in this study is a regression test. uni test aims to measure how the influence of independent variables on the dependent variable. testing is done with the help of spss software. table 4. determinant coefficient and adjusted r square test results, t test, and f test sk to nb ns to nb hp to nb determinant coefficient and adjusted r r 0.572 0.263 0.567 r2 0.327 0.069 0.321 adjusted r square 0.321 0.060 0.314 standardized coefficient beta t 7.047 2.754 6.946 sig. 0.000 0.007 0.000 result of f test f 49.659 7.586 48.253 sig. 0.000 0.007 0.000 based on the results of the first hypothesis testing, the r value is 0.572, r square is 0.327, and the adjusted r square value is 0.321. from the value of r square it can be interpreted that 33% of the variable intention to behave in the community is influenced by the attitude variable. in other words, as much as 67% of people's behavioral intentions are influenced by variables other than attitudes, such as government appeals, subjective norms, massive stay at home campaigns on tv, social media and so on. http://creativecommons.org/licenses/by-nc-sa/4.0/ 558 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia attitude has a positive and significant effect on people's intention to behave. this is indicated by the results of the regression test of 0.327, with a t test value of 7,047 and a significance value of 0,000. the significance value obtained is smaller than 0.05 which means that if the attitude of the community is getting better, the intention to behave in the community to keep working, studying, and worshiping at home is increasing. in addition, based on the f test produced that the f test value of 49,695 and significant at 0,000. these results indicate that attitudes have an influence on people's behavioral intentions to continue working, studying and worshiping at home when the covid-19 outbreak struck indonesia. based on the results of the second hypothesis testing, the r value of 0.263 is obtained, r square is 0.069, and the adjusted r square value is 0.060. from the value of r square can be interpreted that 7% of the variable intention to behave in the community is influenced by subjective norm variables. in other words, as much as 93% of people's behavioral intentions are influenced by variables other than subjective norms, such as community attitudes, government appeals, massive stay at home campaigns on tv, social media and so on. subjective norms have a positive and significant effect on people's behavioral intentions. this is indicated by the results of the regression test of 0.069, with a t test value of 2.754 and a significance value of 0.007. the significance value obtained is smaller than 0.05, which means that if subjective norms develop, the behavior of the community to keep working, studying, and worshiping at home increases even though it is low. in addition, based on the f test it was produced that the f test value was 7,586 and significant at 0.007. these results indicate that subjective norms have an influence on people's behavioral intentions to continue working, studying and worshiping at home when the covid-19 outbreak occurred in indonesia, but the effect was very small. based on the results of testing the third hypothesis, the r value is 0.567, r square is 0.321, and the adjusted r square value is 0.314. from the value of r square it can be interpreted that 32% of the variable intention to behave in the community is influenced by the government appeal variable. in other words, as much as 68% of people's behavioral intentions are influenced by variables other than government appeals, such as attitudes, subjective norms, massive stay at home campaigns on tv, social media and so on. the government's appeal has a positive and significant effect on people's intention to behave. this is indicated by the results of the regression test of 0.321, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(4) 2020 559 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia with a t test value of 6.946 and a significance value of 0.000. the significance value obtained is smaller than 0.05, which means that if the appeal of the government of the community is increasingly enhanced to become a permanent legal force, then the intention to behave in the community to keep working, studying and worshiping at home is increasing. in addition, based on the f test it was produced that the f test value was 48,253 and significant at 0,000. these results indicate that the government's call has an influence on people's behavior intentions to continue working, studying, and worshiping at home when the covid-19 outbreak struck indonesia. ii. analysis the effectiveness of physical distancing rules one predictor of people's intention to keep working, studying, and worshiping at home during the covid-19 outbreak was the attitude of the community itself. in some rural areas, the respondents' legal awareness has an indirect effect on their legal compliance. some residents obeyed the appeal not because of their direct attitude but because they were asked, even forced by the village head or the local police chief. the results of this study are consistent with previous research which proves that attitudes have an influence on behavioral intentions (ma'sumah & pujiati, 2018; idris & kasmo, 2017; aryadhe, et al. 2018; khaerani & hasanah, 2018). other variables that have an influence on people's behavioral intention to keep working, studying and worshiping at home during the covid-19 outbreak are subjective norms that develop in the community itself. the role of law in society as the purpose of the law itself is to ensure certainty and justice, in people's lives there is always a difference between the patterns of behavior or behavior that apply in society with the patterns of behavior desired by legal norms (rules) (rosana, 2014). in the context of subjective norms that develop in the community become an important predictor in shaping the community's intention to obey the government's call. the results of this study are consistent with previous research which proves that subjective norms have an influence on behavioral intentions (ma'sumah & pujiati, 2018; aryadhe, et al. 2018; khaerani and hasanah, 2018). according to ramadayanti in his writing "covid-19 in the perspective of one health approach and law enforcement", that the appeal related to social distancing has less effect on compliance by the community. therefore, it is suggested to become a law that can bind the community and have higher compliance. http://creativecommons.org/licenses/by-nc-sa/4.0/ 560 journal of law & legal reform volume 1(4) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia however, in this study, the government's appeal had a positive and significant effect on people's intention to keep working, studying, and worshiping at home when the covid-19 outbreak occurred in indonesia (kumala, 2020; saputro 2020). the results of this study answer the hypotheses previously raised while answering the issues that are developing in the community that even though the appeal is a weak public law policy it has quite a strong effect on people's intention to obey the current government's appeal. conclusion the study concluded that the intention to behave in the community to continue working, studying, and worshiping at home when the covid-19 outbreak was influenced by attitudes, subjective norms, and government appeals. these results indicate that efforts to improve people's behavioral intentions can be done by efforts to improve attitudes, subjective norms, and the government's appeal in various forms of legal products. to response these circumstances, there are some suggestions, first, academics should participate in raising public awareness in the form of education on healthy living in the midst of the covid-19 outbreak. second, the next researcher should include new variables such as public policy, government circulars, police announcements and so on. third, the government should increase the appeal to become a law of permanent force, bearing in mind that there are still many 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(2020). state authority and legal action: how to prevent the state misconduct?. law research review quarterly, 6(2), 198-198. https://doi.org/10.15294/lrrq.v6i2.37722 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 243 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article indonesian anti-corruption law enforcement: current problems and challenges rohadhatul aisy1 1 postgraduate program, master of laws, universitas negeri semarang sekaran campus, gunungpati, semarang, central java, indonesia  rohadatulaisy@students.unnes.ac.id cited as aisy, r. (2021). non-penal deradicalization of former terrorist prisoners (study at lingkar perdamaian foundation). journal of law and legal reform, 2(2), 243262. https://doi.org/10.15294/jllr.v2i2.46487 submitted: december 5, 2020 revised: february 15, 2021 accepted: may 1, 2021 abstract after having been freed from correctional institutions, there were many former terrorism prisoners who got difficulties or challenges to find a job and interact with the society. this research aims to identifying and analyzing the radicalism reality of the former terrorism prisoners in indonesia and deradicalization efforts conducted by lingkar perdamaian foundation toward the former terrorism prisoners. this study used juridical-sociologic approach and applied qualitative research. the result of this research showed that the former terrorism prisoners gained enormous potential to redo their crime. several factors that led them to be steadily radical were ineffective guidance attempts undertaken by correctional institutions, no suitable places to stay after they were freed from the correctional institutions and strong stigma possessed by society which caused the former terrorism prisoners to rejoin their previous radical community. the deradicalization efforts conducted by lingkar perdamaian foundation were helping, empowering, training and boosting the former terrorism prisoners to be better people and serving new community for them in order that they would not rejoin their previous radical groups. the conclusion drawn from this research is that the reality of the former terrorism prisoners in indonesia after they are freed from the correctional institutions is steadily radical. the deradicalization efforts journal of law and legal reform (2021), 2(2), pp. 243-262. doi: https://doi.org/10.15294/jllr.v2i2.46487 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46487 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 244 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia done by lingkar perdamaian foundation are serving trust, life autonomy, room for interaction and socialization with broader society in order that the former prisoners are kept away from negative stigma of former terrorists. keywords: deradicalization; terrorism; non-penal introduction terrorism is an extraordinary crime that requires extra ordinary measures (masyhar, 2008: 125). the degree of extraordinaryness is one of the reasons for the issuance of government regulation in lieu of law (perppu) number 1 of 2002 concerning the eradication of criminal acts of terrorism (hereinafter referred to as perppu terrorism) which has been ratified as law number 15 of 2003 and is complemented by a government regulation. in lieu of law (perppu) number 2 of 2002 which has also been ratified into law number 16 of 2003 concerning the eradication of criminal acts of terrorism during the bali bombing incident on october 12, 2002. various attempts have been made by the government to prevent and overcome this crime of terrorism. however, the arrest and conviction of terrorists alone is not sufficient to prevent similar crimes from recurring. according to ali masyhar about reducing the spread of terror, where terrorism cannot be eradicated solely by relying on penal measures, namely through the criminal law approach, but must be accompanied by non-penal efforts that will cut terrorism cells from their source, therefore it is time for this country. focus on efforts to counter terrorism through various channels. the state should not only focus on penal efforts (masyhar, 2016). as explained by azil masykur in his writing "deradicalization of terrorists", the correctional institution (lapas), which is currently the only institution where the resocialization of terrorists is questioned about its effectiveness. many parties think that this institution is no longer able to carry out deradicalization efforts against terrorists, terrorism convicts are not sorry and have a desire to return to society but are becoming more professional and radical. therefore, a non-penal effort is needed in the hope that it can unravel the root of the problem of terrorism crime. former terrorism convicts who have left prison can actually lead to new terrorism cases if they are not properly nurtured (maskur, 2017). after leaving prison, many former terrorism convicts find it difficult to find work and return to society. on the other hand, they also have families, children and wives to support. if no one cares, it is not impossible that former prisoners will return to commit acts of terrorism again. these ex-convicts did not just start from scratch, but even from a minus. because, their access after leaving the correctional facility is limited,the social environment which then isolates and http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 245 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia marginalizes the families of terrorism convicts is also a new problem. therefore, several former terrorism convicts initiated by ali fauzi, former jemaah islamiyah (ji) bomb, weapons and war tactics instructor who is also the younger brother of bali bomb convicts ali ghufron, amrozi, and ali imron collaborated with the national counterterrorism agency (bnpt) established the lingkar perdamaian foundation whose members are all former combatants (war experts) and former convicts of terrorism with focuses on improving the social relations of former perpetrators of criminal acts of terrorism in order to prevent their re-entry into their network or community and to prevent the same crimes from being repeated. therefore, based on the description above, the writer is interested in conducting research and takes the title of "non-penal efforts to deradicalize former terrorism prisoners at the lingkar perdamaian foundation." based on the above background, there are several problems that will be studied, namely: (1) what is the reality of the radicalism of former terrorism convicts in indonesia ?; (2) how are the efforts made by the lingkar perdamaian foundation to deradicalise former terrorism convicts? the objectives to be achieved are as follows: (1) identifying and analyzing the reality of the radicalism of former terrorism convicts in indonesia ?; (2) obtain an overview and analyze the efforts made by the lingkar perdamaian foundation to deradicalise former terrorism convicts. method this research method uses a qualitative approach with the type of sociological juridical research. the data used are primary data as primary data and secondary data as complementary data. the data collection techniques were carried out by observation, literature study, and interviews with the chairman of the lingkar perdamaian foundation, members of the lingkar perdamaian foundation, and deputy chair of the semarang city religious harmony forum. the validity of the data in this study used the triangulation technique. the author made a comparison of the data obtained, namely primary data in the field which was compared with secondary data. thus, the authors compare the interview data with document data and literature study, so that the truth of the data obtained can be trusted and convincing. the reality of the condition of the radicalism of former terrorism prisoners in indonesia the spread of the phenomenon of terrorism in indonesia is clearly detrimental to the indonesian nation as a whole. the acts of terrorism that occur have forced the government, in this case the law enforcers, to make policies in order to carry out http://creativecommons.org/licenses/by-nc-sa/4.0/ 246 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia extra security, so that acts of terrorism are not repeated in the future. therefore, the rule of law should be upheld in indonesia, especially when it comes to acts of terrorism which have a very destructive impact on human survival. perpetrators of criminal acts of terrorism must follow the criminal justice process in its entirety, starting from the investigation and investigating process at the police level, to prosecution at the prosecutor's level (septian, 2010: 109). in terms of arresting and overcoming terrorism crimes, law enforcement officers deserve appreciation because they have exposed and sentenced many criminal sentences to terrorists who are proven guilty before a court who are then placed in a penitentiary. based on data from the directorate general of corrections which can be accessed on the official page of the directorate general of correctional services database system, terrorism convicts as of january 2018 totaled 243 people spread across 24 regional offices. the largest distribution of terrorist convicts is on the island of java, namely 184 terrorist convicts in 6 regional offices (banten, dki jakarta, west java, central java, east java and di yogyakarta), while the remaining 59 terrorist convicts are spread across 18 regional offices. however, the arrest of terrorism convicts alone is not enough to make the radicalism inherent in terrorists disappear. in fact, there are indications or the possibility that terrorist inmates spread radical ideas to prisons and could influence other inmates. because imprisonment does not necessarily make them aware or deterred, on the contrary, prison becomes a place to learn more deeply about the ideology they believe in and does not close the possibility of spreading their ideology to other prisoners. one of the problems of prisons that is in the spotlight is that prisons have a big role in the narrative of militant radical movements in the modern era. prisons are a vulnerable place for radicalization. radicalization is the process by which “ordinary” prisoners are recruited and involved in extreme groups in prisons or the process in which prisoners who are already involved in extreme groups become more radical and spread this understanding to other prisoners (neuman, 2010: 7). the correctional institution (lapas), which is currently the only institution where terrorists resocialize, is questioned for its effectiveness. many parties think that this institution is no longer able to carry out deradicalization efforts against terrorists, terrorism convicts are not sorry and have a desire to return to society but are becoming more professional and radical. as reported by the international crisis group (icg) in a study entitled deradicalization and indonesian prisons, there was an interesting case in the kerobokan bali prison where the main perpetrators of the bali bombing, namely amrozi, imam samudra and mukhlash were able to influence other prisoners and the guards. one of the prisoners who was successfully influenced is ahmed (not his real name), a hindu convict who was convicted of bombing and drugs in 2001. the trio bomber's initial interactions with other inmates usually took place when http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 247 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia they were accompanying the mosque, including ahmed, who claimed to be sympathetic. with the attitude of amrozi (international crisis group, 2007). in addition, noor huda ismail (director of the prasasti perdamaian foundation) in one of his writings said that radicalization is an impact of imprisonment itself, both for terrorism convicts and other convicts. huda added that aman abdurrahman, a hard-liner, had succeeded in recruiting at least 3 prisoners who previously did not have the tendency to fight jihad in sukamiskin prison, bandung. this experience indicates that anyone can be a target of radicalization (ismail, 2010). this hypothesis is of course inseparable from the fact that acts of terror in indonesia are often carried out by old names who have received the title 'convicts of terrorism cases'. an example is the act of terrorism that occurred in bandung on monday 27 february 2017 or known as the panci bombing which became the public spotlight not only in connection with the panci bombing, but related to the panci bomb perpetrator, namely yayat cahdiat who turned out to be a former terrorist convict who was sentenced to three years at the tangerang penitentiary which was released in 2015. in addition, the incident of the terror attack in thamrin on january 14, 2016. the suicide bombing followed by a shootout was commanded by afif alias sunakim, a recidivist who was sentenced to 7 years in prison for participating in a terrorist militia training in jalin jantho, aceh, in 2010. which was carried out by afif due to the influence of the ideology of bahrun naim and aman abdurrahman. both of them are old people, aka kingpins in the terror network, who had dealt with densus 88 when they were both still in prison. another example, the 2016 suicide bombing at the surakarta police headquarters by nur rohman and the oukimene church bombing, samarinda, east kalimantan with the perpetrator juhanda alias jo bin muhammada aceng kurnia, both of whom have also been convicted of terrorism. since the bali bombing in 2002, the indonesian police have detained and tried around 700 suspected terrorists, most of them being tried for being found guilty and involved one hundred percent in terrorism cases. of the 270 inmates released after serving their sentences, 28 were again arrested or shot dead during police operations. this 10 percent figure could actually continue to increase if we included a large group of terrorism-related recidivists whose first crimes were related to terrorism, 8 of whom were recruited while they were in prison (ipac report, 2013). from the series of terrorism events, it indicates that former terrorism convicts have great potential to repeat their actions. according to the records of the national counterterrorism agency (bnpt), at least 15% of the 600 free terror convicts have returned to becoming terrorists with increased qualifications. of course, this is closely related to the success of the deradicalization program carried out by bnpt and the ministry of law and human rights against terrorism convicts (firdaus, 2016: 430). http://creativecommons.org/licenses/by-nc-sa/4.0/ 248 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia according to ali fauzi manzi, director of the lingkar perdamaian foundation and a former jemaah islamiyah (ji) bomb, weapons and war tactics instructor who is also the younger brother of bali bomb convicts ali ghufron, amrozi, and ali imron, in an interview conducted by the author said that: prison is a powerful academy for terrorism convicts. a terrorism convict when in prison meets other inmates (even more senior than him), it is likely that they will gain knowledge and skills, so that the radical actions they take are more effective in achieving their goals.the recruitment process is easier in prisons, it can be said that training in prisons has not been effective as a breaker in the chain of terrorism in indonesia (personal interview, with ali fauzi manzi, february 4, 2018, at 07.00 wib). information that is directly proportional to the author also got from an interview with machmudi hariono alias yusuf adirama, a former terrorist convict who was arrested by the special anti-terror detachment 88 while at his rented house, jln sri rejeki, semarang, in 2003 because of ownership.20 rounds of ammunition belonging to abu tholut alias mustofa used for the bali i bombing operations, according to the former terrorist convict: the phenomenon of the spread of radical understanding in the correctional institutions (lapas) is inseparable from the condition of the prison itself, where when i was in prison there were no restrictions on terrorism convicts, meaning that friends of terrorism convicts were free to gather with other inmates, for example during congregational prayers, or other activities. . prisons are places that are vulnerable to radicalization. ordinary prisoners can even be recruited and involved in extreme groups in prison or prisoners who are already involved in extreme groups become more radical and spread their radical understanding to other prisoners (personal interview machmudi hariono, february 8 2018 at 18.30 wib). according to the author's analysis, the punishment of the perpetrators of terrorism is an important study in maintaining security stability in the future. therefore, the correctional institution which is currently a place of resocialization for terrorists has a strategic role in guiding terrorist convicts not to repeat their actions. terrorism is not a matter of who the perpetrators, groups and networks are, more than that terrorism is an act that has roots in beliefs, doctrines, and ideologies. therefore, when terrorism convicts are in prison, guidance is different from other prisoners because the motives of terrorism are different from those of other criminal acts. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 249 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia various attempts have been made by the government to tackle the occurrence of criminal acts of terrorism, one of which is by using a deradicalization strategy which has six approaches, namely rehabilitation, reeducation, resocialization, national insight development, moderate religious development and entrepreneurship. likewise, from the institutional side that deals with deradicalization, in indonesia the national counterterrorism agency (bnpt) has been established as an institution that specifically designs and coordinates deradicalization activities. however, it must be admitted, the implementation of deradicalization of terrorism convicts in prisons (lapas) is still facing various problems. based on the information obtained by the author during an interview with former terrorism convict yusuf adirama, that: "... a lot of friends who left the prison joined the old community, returned to the radical movement, in that prison did not change their minds at all about the understanding of jihad. unless it is the awareness of the prisoner himself, but rarely or even impossible. nearly 90% of friends leaving prison still share the same ideology, belief and understanding. guidance carried out internally is the same as coaching other inmates such as leaving to mosques, islamic boarding schools in ramadhan, routine recitation activities, bringing religious teachers from outside, tarawih, tadarus and so on. but for training such as workshops and skills training that teach other skills to prisoners have not been carried out effectively and hit the spot, only recently have ngos entered prisons to teach skills” (personal interview with yusuf adirama, dated february 8 2018 at 18.30 wib). according to the author's analysis, prisons should have a special program for terrorism convicts that are differentiated from other prisoners, the quality and quantity of correctional officers, especially those who foster terrorism convicts, is also an important factor in the success of developing terrorism convicts in prisons. machmudi hariono alias yusuf adirama, who was interviewed directly by the writer, has also been involved in deradicalization efforts. yusuf, who is also a member of the lingkar perdamaian foundation, often visits prisons where jihadists are detained and invites them to return to normal life. in fact, he has also provided cooking and culinary skills. however, according to yusuf, former terrorism convicts who were involved returned to the old community and committed acts of terrorism again, it was not entirely due to mistakes in training inside the prison, because when outside prison there was no place for terrorism convicts to gather, there was no place for former terrorism convicts inviting discussion, dialogue, preaching, and doing activities, they have difficulty finding work, and are confused about what activities to do, even though they also need to support their family. life outside prisons is not like http://creativecommons.org/licenses/by-nc-sa/4.0/ 250 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia inside prisons where there is clear guidance and a forum for inmates. for this reason, former convicts of terrorism have finally chosen the elevated path to syria or return to the old community which is happy to accept them back. "most of the friends who leave prison have difficulty finding work and are not accepted in the community, on the other hand, the invitation from friends of radical groups to return to join is carried out intensively and intensively, if they do not rejoin, they are considered 'thogut', apostasy, and anti-islam. so, after leaving the prison, many of the napiters then rejoined the bombing action or went to syria. those friends prefer to return to the old group that is sure to accept them back” (personal interview with machmudi hariono, february 8 2018 at 18.30 wib). from the various descriptions that have been explained above and from the results of the interviews conducted by the author, it can be explained that the radical conditions of former terrorism convicts who have left prison can be caused by several factors which can be divided as follows: 1) factors from within prisons, including: a) the handling of terrorism convicts in prisons is the same as other criminal acts such as robbery, theft, murder and so on, so that guidance is not yet effective. they took action that was driven more by ideology to establish a state. so, in prisons there must also be a special deradicalization program to understand thoughts that are considered extreme. these radical thoughts cannot be minimized while in prison because their training is the same as other prisoners. so, it is very likely that when terrorism convicts leave prison, they will take action again, even more radically. b) prisons in indonesia that are overcrowded and overcrowded are not ready to face terrorism convicts who tend to have extreme ideologies. this has hampered efforts to prevent radical teachings. prisons are used as places to give birth to new jihadists. c) the guards in the correctional institutions are less able to identify "highrisk" prisoners who can recruit other people to become jihadist. the problem is the access to information they receive is very limited and there is a lack of training for wardens in prisons. the prison guards do not have a good understanding of religion and radicalism, so they are unable to invite religious discussions and provide ideological guidance to terrorism convicts. based on ali fauzi manzi's statement, that: "one of the prisons that is quite successful in carrying out the deradicalization program is the porong prison located in sidoarjo regency, east java. this success is due to the presence of a warden who has a good understanding of religion and has http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 251 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia charisma so that prisoners, especially terror convicts such as umar patek, are willing to participate in coaching programs well” (personal interview with ali fauzi manzi, february 4, 2018, at 07.00 wib). prison officers or wardens have a very strategic and influential role in carrying out de-radicalization, so that if the wardens have good quality and understanding, of course they can coordinate terrorism convicts so that they want to follow the guidance program in the prison. 2) factors from outside prisons, including: a) the deradicalization program does not have a complete framework and involves various parties. so, what is done is still partially and often sectorally by each party. based on the results of interviews conducted by the author with syarif hidayatullah, deputy chairperson of the semarang city fkub as well as a member of the center for police science research (prik), university of indonesia said that: "one of the weaknesses of the deradicalization program is that the guidance carried out especially by the bnpt for terrorism convicts is more focused on ceremonial activities, such as holding seminars or gathering large numbers of people. activities that can be covered and reported, but do not have complete and substantive elements. the deradicalization that is needed is to work together with all parties, including civil society” (personal interview with syarif hidayatullah, deputy chairperson of the fkub semarang city on january 31, 2018 at 08.30 wib). according to the authors, eliminating and preventing radicalism is very serious. whether dealing with those who are radicalized and then arrested and jailed, they must use special treatment for people in their environment. all parties including prisons, bnpt, police and densus (special force) have their respective roles but work together to create a complete unit in the deradicalization program. b) in some cases, many former terrorism convicts have finally returned to radical groups. this is due to the strong stigma in society that makes them unacceptable like other citizens. at the same time, the government also does not carry out monitoring and assistance. even former terrorism convicts when they are released from prison experience several obstacles. this fact is revealed for example in terms of making id cards, sim or passports. when stigma and exclusion occur in society, the old community comes to help them former convicts of terrorism, meeting their needs as a way to be willing to join in and carry out acts of terrorism again. c) there is no place for ex-convicts of terrorism when they leave prison and when the community and government ignore them, there is an old http://creativecommons.org/licenses/by-nc-sa/4.0/ 252 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia community that is ready to accommodate them again with the various luxuries it has to offer. of the various factors that the authors have described above and from a series of facts, terrorism incidents that occurred in indonesia were often carried out by old names who had received the title 'convicts of terrorism cases'. this indicates that former terrorism convicts have great potential to repeat their actions. the role of the state should not stop when the prisoners leave prison. in the context of terrorism crimes, every prisoner must be monitored, of course through cooperation with parties who have the authority so that it does not reduce the sense of security as a citizen. actually, there have been efforts that have led to the de-radicalization of terrorism convicts, but it has not become a standard, systematic, and comprehensive program in correctional institutions in indonesia. therefore, it is considered that this has not shown the expected results. in fact, what happened was that some prisoners rejected the deradicalization program in prisons, so that according to taufik andrie, lapas became a school of radicalism. besides that, it also gave birth to many recidivism cases of terrorism (andrie, 2011). if these things are related to the operation of the criminal justice system, then the problem is not just punishing the perpetrators of terrorism, but also providing room for deradicalization of terrorism criminals. a person commits a crime repetition due to several factors such as the ineffectiveness of one of the subsystems of one of the criminal justice systems in indonesia. criminal law enforcement carried out through the criminal justice system is to achieve certain goals. the objectives of the criminal justice system include short-term goals, medium-term goals and long-term goals. the short-term objective of the criminal justice system is to socialize (re-popularize) the perpetrators of criminal acts, the medium term is to prevent crime and in the long term, the ultimate goal is to achieve social welfare in the broadest sense (ali, 2007: 218). according to the author's analysis, if it is related to the condition of former terrorism convicts after leaving prisons who have difficulty resocializing and are not accepted due to community stigmatization which ultimately causes them to return to the old community and commit acts of terrorism again, it shows that the objectives of the criminal justice system have not been fully fulfilled. done. this means that if the objectives of the criminal justice system cannot be implemented, there needs to be a change, improvement and coordination between components in the criminal justice system through legal substance, legal structure and legal culture. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 253 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia efforts to deradicalize former terrorism prisoners at the lingkar perdamaian foundation terrorism is a unique crime, because the motives and factors that cause this crime to be committed are very different from the motives of other criminal acts. salahuddin wahid stated that terrorism can be carried out with various motivations, namely for religious reasons, ideological reasons, reasons to free oneself from injustice, and because of interests (masyhar, 2019: 50). causative factor terrorism is not single, it is even interrelated. radicalism emerges with various causes, including underdevelopment in education, political changes, poverty, or the low level of a person's cultural and social civilization, which will trigger radicalism which can lead to terrorism (bakti, 2016: 49). therefore, the handling of terrorism must not be single, it must have many aspects, perspectives, and methodologies. one of them is through the lingkar perdamaian foundation. this is also explained by ali fauzi in an interview with the author as follows: "the roots of terrorism are not singular and even interrelated, therefore the handling of terrorism must not be single, it must have many aspects, perspectives, and methodologies. when it comes to extremism and terrorism only left to the police, bnpt, and densus they will not be able to. this effort must involve all elements, religious leaders, youth, clerics, all should be embraced, all are invited to tackle acts of terrorism. the establishment of the lingkar perdamaian foundation, also departed from the concerns of former terrorism convicts. they need help starting from scratch again after being released from prison. because, it is not easy for them to reintegrate into life with the community” (personal interview with ali fauzi manzi, february 4, 2018, at 07.00 wib). according to the author's analysis, as explained in the previous description, there are several factors that cause terrorism convicts to remain radical and even more radical, including in addition to ineffective prison development, incompetent prison officers, no place after they leave prison, and community stigma. which has been described in the previous explanation. therefore, one way to reduce or reduce radicalism among former terrorism convicts is to accept it back with open arms. based on the information that the author got from an interview with the former terrorism criminal officer machmudi hariono alias yusuf adirama stated that: http://creativecommons.org/licenses/by-nc-sa/4.0/ 254 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia "the world outside prison is a prison in a heavier scope than in prison. friends of former napiter when they were released from prison did experience several obstacles. this fact is revealed, for example in terms of making id cards, driving licenses or making passports. besides the other main obstacles, such as the unfriendly attitude of the community. in fact, the stigma of being a terrorist still exists even though it has been out of prison for years, for example when there is news of a suicide bombing or an act of terror that occurs, ex-convicts who have started a normal life will return to being disturbed and suspected of having a relationship with the perpetrator, a stigma that never disappeared until now. besides that, there is an invitation from the old community to be willing to join again" (personal interview with machmudi hariono, february 8 2018 at 18.30 wib). according to the author's analysis, former terrorism convicts who have left prison can actually lead to new terrorism cases if they are not properly nurtured. because after leaving prison, many former terrorism convicts experience unpleasant conditions such as social isolation, psychological anxiety, economic difficulties and others as explained in the results of the interview above. therefore, several former terrorism convicts initiated by ali fauzi manzi, former jemaah islamiyah (ji) bomb, weapons and war tactics instructor who is also the younger brother of bali bomb convicts ali ghufron, amrozi, and ali imron collaborated with the national counterterrorism agency bnpt) established a lingkar perdamaian foundation which could be a point of reference for former terrorism convicts to get back into society. the lingkar perdamaian foundation helps former terrorism convicts, empowers, trains and encourages and provides a new community for former terrorism convicts so that they do not return to the old community, with a vision of caring for ukhuwah and knitting peace. ali fauzi manzi, director of the lingkar perdamaian foundation and a former member of the moro islamic liberation front/milf terrorist group, said that the process of deradicalisation was not easy. changing beliefs takes time, just like when they enter an extremist organization, so removing it requires a long stage. ali often meets members of terrorists who are serving prison sentences or not. according to ali fauzi, there is no standard time required in the deradicalization process. the deradicalisation process can take years or months, depending on the psychological condition and also the science concerned. in the interview conducted by the author ali fauzi said: “…from experience, being recruited and joining a terror group requires a long period of time. i once learned to assemble bombs and war operations to mindanau, philippines. returned to indonesia and http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 255 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia was later appointed as chief instructor for bomb assembly of the east java jama'ah islamiyah wakalah. in 2000 he left ji, and joined kompak (crisis management committee) and was arrested in 2004. while in prison, there was inner turmoil. i did not expect, in such a condition of people's anger, i would still be treated humanely, especially by the police. while in prison i often had discussions with terrorist members on my personal awareness. from the results of the discussion, i took the understanding that the approach to members of jemaah islamiyah (ji) or isis was with the same pattern. as long as they are open and able to discuss. so the process of deradicalization takes a long time, just like the process for the first time they recognized radicalism” (personal interview with ali fauzi manzi, february 4, 2018, at 07.00 wib) coaching outside prisons, in this case the deradicalization effort carried out at the lingkar perdamaian foundation, is an ongoing program directed at exconvicts, families, networks, and individuals or groups that have the potential to become radicalized. this coaching is felt to be comprehensive with a better target expansion. for example, it is also targeted at the families of the former terrorists because the potential in the families of the former terrorists is very high. it is realized that terrorists are no longer merely utilizing networks through recruitment as before but prefer to use family networks. the facts regarding the recruitment through the exit route can be seen in the case of umar jundulhaq (19 years) the son of the suicide bomber in bali, imam samudera, who was killed in a battle in the city of deir ez-zur, syria on october 14 2015. umar is one of 50 indonesian citizens who died in the fighting in syria as of october 2015. earlier news broke that one of abu jibril's sons, muhammad ridwan abdurrahman, was killed in syria on march 26, 2015. abu jibril's name was mentioned in the suicide bombing at the hotel. jw marriot and ritz carlton jakarta in 2009. one of his sons, muhammad jibril abdurrahman alias ricky ardan, was sentenced to five years in prison for being convicted of a crime of terrorism. this fact shows how a radical terrorist family continues to recycle through the cultivation of ideology from the smallest environment, namely the family (bakti, 2016: 196). the effort made by the lingkar perdamaian foundation is to give trust to former terrorism convicts to determine for themselves a "new path" for the life of the former terrorist convict in the future. a path that opens the dynamic of thinking, creates a non-violent mindset and thinks critically and reflective (and evaluative) on what they (former terrorist convicts) have been doing so far. the approach to these former terrorists, not always with religion, can be through sports, economics, or culinary. the point is they have a new life after prison. there is an independent life, there is a space for interaction and socialization with the wider community. they http://creativecommons.org/licenses/by-nc-sa/4.0/ 256 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia are protected from the stigma of being a former terrorist. they are citizens of society who are empowered and have the courage to leave violence. the strategy used by the lingkar perdamaian foundation in recruiting members so that ex-convicts are willing to join is with using a principle that has been practiced by convicts of terrorism, namely "a person has a character with his friend, so pay attention to who he is friends with". therefore, when terrorism convicts are still in prison, the lingkar perdamaian foundationhas taken a humanist approach, for example by helping to meet their needs, what they need, visiting and supporting their families, children and wives, when they leave the prison they are picked up and escorted to his wife's house. so, through a humanist approach, they will automatically come to the lingkar perdamaian foundation and tell the various conditions and problems they are facing. this is as said by the director of the lingkar perdamaian foundation, ali fauzi: "the approach we use to recruit napiter friends is using the principles that were taught when they joined the extremist group, namely, al-mar'u 'ala dini khalilihi, falyanzhur ahadukum man yukhalilu, that someone is dependent on the religion of his friend. therefore, let one of you pay attention to who he is friends with. therefore, when we are in prison we have taken a humanist approach. what they need we help, if in prison we fulfill it, outside we also fulfill it like our wife and children we help, and when we get out of prison we pick them up, we take them to their wife's house. the term is like we take heart, then they will come alone” (personal interview with ali fauzi manzi, 4 february 2018, 07.00 wib). according to the author's analysis, the approach strategy taken by the lingkar perdamaian foundation can be an alternative for prisons or bnpt to deal with terrorism convicts so that they are willing to be open and not close themselves. according to the author, the humanitarian approach taken by the lingkar perdamaian foundation includes an economic approach because by helping to meet the needs of prisoners' families who are still in prison, meaning that the lingkar perdamaian foundation also uses an economic approach to them. until now, there are about 38 former terrorism convicts and excombatants from the lingkar perdamaian foundation, mostly from the areas of lamongan, tuban, bojonegoro, surabaya and semarang, 78 tpa plus students, and 7 teachers at the tpa. for the names of members of ex-convicts who joined the lingkar perdamaian foundation, the author has difficulty obtaining data, due to several factors, one of which is that some ex-convicts still have 'trauma'. they wanted to join the peace process with the government but didn't want the old community to know about it. because it will reduce his reputation or create antipathy from his friends. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 257 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this is as stated in the statement given by the chairman of the lingkar perdamaian foundation, ali fauzi, that: "deciding to join the republic of indonesia to become agents of peace and leave the old community requires courage, because they will always be threatened by the old community, considered to be 'thoghuts' and 'stooges' of the government" (personal interview with ali fauzi manzi, 4 february 2018, 07.00 wib). therefore the names of the members of the lingkar perdamaian foundation are not published, only a few names that have long since left the community such as anis yusuf alias haris, an indonesian who knows personally the world terrorist leader osama bin laden, iqbal hussein thoyib, a bomb planner for the national police headquarters and a provider of weapons to kill police, sumarno, ali fauzi's neighbor in lamongan, who once went to prison for hiding thousands of firearms, as well as machmudi hariono alias yusuf who hid 1 ton of explosives on jln. sri rejeki semarang. the programs at the lingkar perdamaian foundation can be divided into 2 (two), namely: 1. short-term programs, including: a. empowerment, the main and first short-term program is empowerment. in this case, once ex-convicts leave prison, the lingkar perdamaian foundation empowers and trains work, finding workplaces/entrusting work. because ex-convicts also have families, children and wives to support, once they leave prison they need a job. b. providing material assistance and compensation, a program of providing material assistance and compensation, for the children of prisoners who are still in prison, their wives and children are temporarily financed by the lingkar perdamaian foundation, such as the provision of basic food packages and a set of school equipment. c. prison visits, prison visit programs or prison safaris conducted by the lingkar perdamaian foundation to campaign for peace to terrorism convicts. the approach taken by ali fauzi is a humanitarian approach, and not always about religion. terrorism convicts are embraced and invited to carry out relaxed dialogues, carry out activities such as football matches, which were held some time ago at porong prison, iftar together, and so on. this is considered to be more effective in embracing terrorism convicts. 2. long-term programs, long-term programs include: a. mental support, a form of activity such as gathering with fellow exconvicts, conducting studies and dialogues related to matters that are still being debated among former terrorists. this mental support basically http://creativecommons.org/licenses/by-nc-sa/4.0/ 258 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia includes the study of understanding islam rahmatan lil alamin and changing extreme views. b. skill training, training to equip the abilities of ex-terrorists such as entrepreneurial training, journalism training, management, business innovation, accounting, to the ability to open new branches and recruit their own colleagues, other ex-convicts. c. tpa plus, this program is a training program for children and wives of terrorism convicts. the tpa which was inaugurated by bnpt in conjunction with the baitul muttaqin mosque which is still one complex with the lingkar perdamaian foundation. in addition to empowering children of terrorism, the tpa also empowers the wives of terrorism convicts to become ustadzah at the tpa and sells snacks for children. d. resocialization assistance, a form of this program that is by holding activities related to the surrounding community. the aim of this program is that former terrorism convicts are accustomed to interacting with the surrounding community and not closing themselves off, as well as for the community to accept former terrorism convicts and eliminate the negative stigma against them. of the several programs launched at the lingkar perdamaian foundation, not all programs have been implemented, the main reason that all programs have not been implemented is because the lingkar perdamaian foundation was only established and inaugurated on march 29, 2017, it has only been 1 (one) year of running its programs. the programs that have been implemented include: 1. empowerment, an empowerment program to help former terrorism convicts find and find jobs that have been carried out several times, including: a. sumarno, former terrorism convict who was arrested for hiding thousands of firearms for training of terrorist militias, is now the secretary of the lingkar perdamaian foundation and opened a motorcycle repair shop in tenggulun village with funding from the lingkar perdamaian foundation. b. toni saronggalo, one of the former terrorism convicts who just left the lamongan class iia prison on december 27, 2017. toni saronggalo received a chicken feather lathe to support his business, namely as a mobile chicken trader. the chicken feather lathe was handed over directly to the head of the lamongan police, akbp feby dp hutagalung, to toni sarunggalo on january 23, 2018 witnessed by the chairman of lingkar perdamaian foundation, ali fauzi manzi. c. machmudi hariono alias yusuf adirama, a former terrorist convict who succeeded in opening a culinary business for dapoer bistik solo, and now employs several former combatants and former convicts of terrorism. 2. providing material assistance and compensation, the program of providing material assistance and compensation was carried out on september 17, 2017 with assistance from the ministry of social affairs which provided http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 259 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia assistance from the family hope program (pkh) to 24 families of former terrorism convicts consisting of 17 families of former terrorism convicts from lamongan, 2 family from tuban, 2 families from bojonegoro, 1 family from malang and 1 family from madiun. providing pkh assistance of rp. 1,890,000. 3. prison visits, prison visit programs or prison safaris conducted by lingkar perdamaian foundation have been carried out 2 (two) times including: a. on june 21, 2017 at porong prison, he met several former terrorism convicts such as umar patek and ismail. the series of activities included a relaxed dialogue and iftar with terrorist convicts. b. on august 15, 2017 at the lamongan prison, apart from having a casual dialogue, he also held a futsal competition between terrorism convicts in prison and former terrorism convicts from the lingkar perdamaian foundation. 4. skill training, training to strengthen young people's economic skills in the form of journalism training was carried out on january 28, 2018 at the tanjungkodok hotel in lamongan with 75 participants. 5. tpa plus, the al-qur'an education park, currently has approximately 78 students, consisting of the children of the families of terrorism convicts and local residents. tpa starts from 2pm to 5pm. one of those who joined was ustadzah zuhrotun nisa ', who was the wife of ali imron who was convicted in the bali bombing case 1, ustdazah eli hidayah, ustadzah umi sholihah and so on. 6. resocialization assistance, carried out on the anniversary of the independence of the republic of indonesia on 17 august 2017, with a series of flag ceremony activities with residents around tenggulun village located in the courtyard of the baitul muttaqin mosque complex, contests, and healthy walks, in carrying out efforts to deradicalize the lingkar perdamaian foundation, several obstacles and obstacles are also faced including: 1. internal barriers, obstacles that come from within each member. such as the difficulty of equating perspectives and changing the ideology that was originally believed by former terrorism prisoner (napiter). it is difficult to change the thinking of former terrorists and combatants that the correct way of preaching is not through acts of terror and attacks on the police, and jihad in islam is not always synonymous with bombing. 2. external barriers, lack of funds for development programs. because the lingkar perdamaian foundation is an ngo (non-governmental organization), an organization founded by individuals or groups of people who voluntarily provide services to the general public without aiming to gain profit from its activities. the main principle of ngos is to be selfish and voluntary. so, the funds to run the program are purely the efforts of the lingkar perdamaian foundation itself. ali fauzi manzi, director of the lingkar perdamaian foundation, said that the lingkar perdamaian foundation has cv http://creativecommons.org/licenses/by-nc-sa/4.0/ 260 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia construction which is managed by zulia mahendra, the son of amrozi, who was sentenced to death in the bali bombing 1. cv who is in the village of tenggulun and operates around drajat and sedayu lawas, as a financial foster mother of lingkar perdamaian foundation. however, to overcome these obstacles, ali fauzi and his colleagues at the lingkar perdamaian foundation continued to strive to keep the program running. one way to do this is to collaborate with various related parties, such as collaborating with the ppim (center for islamic and community studies) syarif hidayatullah state islamic university jakarta, aida (alliance of indonesia peace) and ngos that are concerned with radicalization. the form of cooperation is cooperation in coaching, activities, and collaborative programs. in addition, the lingkar perdamaian foundation also synergizes with the police and collaborates with several prisons such as lamongan and porong prisons. from the results of the research conducted by the author, the deradicalization efforts carried out by the lingkar perdamaian foundation provided many benefits, not only to members but also to the surrounding community living in tenggulun village. several people interviewed by the author during their visit to the foundation revealed that the existence of the lingkar perdamaian foundation changed the impression that the village of tenggulun, which was once known as a terrorist den, has become a village producing agents of peace, besides that local residents are also often invited to participate in activities organized by the lingkar perdamaian foundation. for peace, some residents even get basic food assistance, and their children also learn at tpa plus which was established in the foundation complex. the author also conducted an interview with the wife of terrorism convict ali imron, namely ustadzah zuhrotun nisa 'who is also a teacher at the tpa plus. according to ustadzah zuhrotun nisa 'with the existence of tpa plus him in the first placefeeling afraid of being discriminated against in the community, being able to return to a normal life and socializing with the surrounding community, teaching at the tpa, and selling some snacks for children there. according to the author's analysis, the efforts to deradicalize former terrorism convicts by involving civil society, one of which was carried out by the lingkar perdamaian foundation, was quite effective in preventing former terrorism convicts from joining the old community. apart from because former terrorists have a forum to gather and convey aspirations about the complaints and obstacles they face, this foundation can help former terrorism convicts to start living again and help the process of resocialization and have a new, better community. so that former terrorism convicts can return to society, interact, do not close themselves off and be protected from the stigma of society. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 261 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conclusion this research concluded and highlighted that the reality former terrorism convicts in indonesia after leaving prisons are still radical. the arrest and conviction of the perpetrators of terrorism alone are not enough to make the radicalism inherent in terrorists disappear. many factors cause terrorism convicts to remain radical and even more radical, one of which is a strong stigma in society that makes them unacceptable like other societies. former napiter (terrorism prisoners) find it difficult to find work, even though they also need to continue their life. this encourages former terrorism convicts to return to the radical community who are happy to accept them back. in connection with these matters, the connection with the operation of the criminal justice system shows that the objectives of the criminal justice system have not been fully implemented. this means that if the objectives of the criminal justice system cannot be implemented, there needs to be a change. furthermore, it also highlighted that the deradicalization effort carried out at the lingkar perdamaian foundation is an ongoing program directed at ex-convicts and their families, and ex-combatants who have the potential to become radical. the lingkar perdamaian foundation helps former terrorism convicts, empowers, trains and encourages and provides a new community for former terrorism convicts so that they do not return to radical groups, with a vision of "caring for ukhuwah and knitting peace". the effort made by the lingkar perdamaian foundation is to give trust to former terrorism convicts. there is an independent life, a space for interaction and socialization with the wider community. they are protected from the stigma of being a former terrorist. the programs at the lingkar perdamaian foundation can be divided into 2 (two), namely: (1) short-term programs and (2) long-term programs. of the several programs launched at the peace foundation, not all programs have been implemented. the programs that have been implemented include empowerment, provision of material assistance and compensation, prison visits, skill training, tpa plus, and resocialization assistance. the deradicalization efforts carried out by the lingkar perdamaian foundation have provided many benefits, not only to members but also to the surrounding community who live in tenggulun village. references ali, m. (2007). sistem peradilan pidana progresif; alternatif dalam penegakan hukum pidana. jurnal hukum ius quia iustum, 14(2).210-229 andrie, t. (2011). kehidupan di balik jeruji: terorisme dan kehidupan penjara di indonesia. institute for international peace building position paper, 2, 11-14. bakti, a. s. (2016). deradikalisasi nusantara (perang semesta berbasis kearifan lokal melawan radikalisasi dan terorisme. jakarta: daulat press kreatif. http://creativecommons.org/licenses/by-nc-sa/4.0/ 262 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia firdaus, i. (2017). penempatan narapidana teroris di lembaga pemasyarakatan (putting convicted terrorists in correctional institution). jurnal penelitian hukum de jure, xvii(4), 429-443. international crisis group. (2007). deradicalisation and indonesian prisons. asia report no. 142, 19 november 2007. ipac report. (2013). prison problems: planned and unplanned releases of convicted extremists in indonesia 2 september 2013. jakarta: institute for policy analysis of conflict (ipac). ismail, n. h. (2010). prison radicalization and how it happens: an analysis into root causes of terrorism. the jakarta post online, retrieved from http://www.thejakartapost.com/news/2010/08/27/prison-radicalizationand-how-it-happens-an-analysis-root-causes-terrorism.html. maskur, m. a. (2017). “deradikalisasi pelaku teror”. online, from http://fh.unnes.ac.id/index.php/gagasan-pakar/deradikalisasi-pelakuteror/. masyhar, a. (2008). pergulatan kebijakan hukum pidana dalam ranah tatanan sosial. semarang: universitas negeri semarang press. masyhar, a. (2009). gaya indonesia memerangi terorisme. bandung: mandar maju. masyhar, a. (2016). “memangkas penularan teror”. online, retrieved from http://unnes.ac.id/pakar/memangkas-penularan-teror/. neumann, p.r. (2010). prisons and terrorism radicalisation and de-radicalisation in 15 countries. london: the international centre for the study of radicalisation and political violence (icsr) septian, f. (2012). pelaksanaan deradikalisasi narapidana terorisme di lembaga pemasyarakatan kelas i cipinang. jurnal kriminologi indonesia, 7(1), 108133 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.thejakartapost.com/news/2010/08/27/prison-radicalization-and-how-it-happens-an-analysis-root-causes-terrorism.html http://www.thejakartapost.com/news/2010/08/27/prison-radicalization-and-how-it-happens-an-analysis-root-causes-terrorism.html http://fh.unnes.ac.id/index.php/gagasan-pakar/deradikalisasi-pelaku-teror/ http://fh.unnes.ac.id/index.php/gagasan-pakar/deradikalisasi-pelaku-teror/ http://unnes.ac.id/pakar/memangkas-penularan-teror/ 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: 7fbf23cacd2aa631 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 2(1) 2021 39 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article forest fires and law enforcement: the capture of indonesian contemporary condition arief riyadi1, ali masyhar2 1 district prosecutor’s office in purworejo, central java, indonesia 2 faculty of law, universitas negeri semarang, indonesia  arief.ryadi83@gmail.com cited as ryadi, a., & masyhar, a. (2021). forest fires and law enforcement: the capture of indonesian contemporary condition. journal of law and legal reform, 2(1), 39-50. https://doi.org/10.15294/jllr.v2i1.42723 abstract forest is an invaluable natural resource because it contains biodiversity such as timber and non-timber forest products, water control, flood and erosion prevention and soil fertility, protection of biological nature for the benefit of science, culture, recreation, tourism and so on. however, recently forests in indonesia are experiencing degradation in the form of forest fires. the government has also issued several regulations related to forest destruction. among others, law no. 41/1999 on forestry. article 49 of the forestry law states that rights or permit holders are responsible for forest fires in their working areas. however, unfortunately the law does not explain the criminal provisions regarding article 49. keywords: forest fire; forestry law; uupplh; law enforcement journal of law and legal reform (2021), 2(1), pp. 39-50. doi: https://doi.org/10.15294/jllr.v2i1.42723 issn (print) 2715-0941, issn (online) 2715-0968 submitted: 27 september 2020, revised: 10 november 2020, accepted: 15 december 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i1.42723 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 40 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 39 table of contents ……………………………..…...…………………..….. 39 introduction ………………………………….……………...………………. 39 method ……..….……………………………………………………..….……..... 41 forest protection in indonesian legal system ……………… 42 i. forest protection under law number 41 of 1999 ………… 42 ii. legal action against perpetrators of forest burning in indonesia according to the forestry law and the law on environmental protection and management ……………………………………………………………… 44 conclusion …………………………………………………..………………… 48 references …………………………………………………………………...… 48 introduction the 1945 constitution of the republic of indonesia states that a good and healthy environment is a human right and constitutional right for every indonesian citizen. therefore, the state, government and all stakeholders are obliged to protect and manage the environment in implementing sustainable development so that the indonesian environment can continue to be the source and life support for the indonesian people and other living creatures. a good and healthy environment is very important in supporting human survival. in addition to everyone having the right to a good and healthy environment, they also have the obligation to protect and manage the environment. a good and healthy living environment is not only a right, but within it must also have the responsibility to protect and protect and manage or preserve it so that it is getting better and healthier every day and in it a good and healthy society is also created. therefore, it is clear that the environment is an important thing that should be maintained, protected, managed and preserved, one of which is the forest (sri, 2012: 15). forest is an invaluable natural resource because it contains biological diversity such as timber and non-timber forest products, water management, flood and erosion prevention as well as soil fertility, protection of biological nature for the benefit of science, culture, recreation, tourism and so on. the importance of these resources is increasing because forests are a source of livelihood for many people. law number 41 of 1999 concerning forestry, is contained in article 1 point 2 which reads: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 41 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia "forest is a unified system in the form of a stretch of land containing biological natural resources dominated by trees in their natural environment, which cannot be separated from one another". however, recently forests in indonesia have been degraded in the form of forest fires. forest fires are a form of disturbance that is increasingly occurring. the negative impacts caused by forest fires are quite large, including ecological damage, decreased biodiversity, decreased economic value of forests and land productivity, micro and global climate change, and the smoke disrupts public health and disrupts transportation both land, river, lake, sea, and air. more than three months of smog hit nearly two-thirds of indonesia's territory due to land and forest fires that occurred in parts of sumatra and kalimantan. the haze disaster has damaged the air quality to become unhealthy and even dangerous. as a result of this haze disaster, the impact was not only felt in the territory of indonesia, but also the impact was also felt by neighboring countries such as singapore, malaysia, and brunei darussalam. of course, the problem of this haze disaster is a serious disaster, so it needs serious handling as well in terms of stopping the smog disaster and in terms of law enforcement. companies that should have had a positive impact on society and the state have turned into actors that directly or indirectly harm society and the state. in addition to their negative impacts on forest ecosystem functions, forest and land fires have caused loss of lives, property, health problems, and further affected national and regional economies. another negative impact is the effect of forest fires on increasing global warming. in other words, law enforcement against perpetrators of forest and land fires is very necessary, in addition to providing a deterrent effect on perpetrators as well as to compensate for any losses that arise from burning forests and land. the pplh law recognizes three law enforcement mechanisms against perpetrators of pollution and environmental destruction, namely the administrative sanctions approach, the civil sanctions approach and the criminal sanctions approach. however, so far, law enforcement using the forestry law, the plantation law and also the most common with the pplh law, apart from not giving a deterrent effect nor fulfilling a sense of justice. for further discussion, the discussion section will discuss how to take legal action against perpetrators of land and forest fires using the approach of the forestry law, the plantation law and the pplh law (irwandi, 2016: 9). method the type of research in this writing is normative (literature) which comes from statutory regulations, books, official documents, and research results which are solely http://creativecommons.org/licenses/by-nc-sa/4.0/ 42 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia used to obtain complete data as the basis for writing this scientific paper. this research is descriptive analytical, which reveals the laws and regulations relating to legal theories as the object of research. the data collection technique is done by means of library research (library research). this method is carried out by conducting research on various sources of written reading from scholars such as theoretical books on law as well as lecture materials and laws and regulations regarding abortion by rape victims. in addition, in this writing is via the internet, then indonesian, legal dictionaries and encyclopedias. forest protection in indonesian legal system i. forest protection under law number 41 of 1999 in articles 46 and 47 of law no. 41 of 1999 explained that the implementation of forest protection and nature conservation aims to protect forests, forest areas and their environment, so that the protection function, conservation function, and production function can be achieved optimally and sustainably. protection of forests and forest areas is an effort to: a. prevent and limit the destruction of forests, forest areas and forest products caused by human actions, livestock, fires, natural forces, pests and diseases. b. maintain and protect the rights of the state, communities and individuals over forests, forest areas, forest products, investments and instruments related to forest management. the prohibition against forest destruction is listed in article 50: a. everyone is prohibited from destroying forest protection infrastructure and facilities. b. everyone who is granted an area utilization business permit, environmental service utilization business permit, timber and non-timber forest product utilization business permit, and timber and non-timber forest product collection permit, is prohibited from engaging in activities that cause forest damage. c. everyone is prohibited from: 1. working and or using and or occupying forest areas illegally. 2. exploring forest areas. 3. logging trees in forest areas with a radius or distance of up to: a) 500 (five hundred) meters from the edge of a reservoir or lake. b) 200 (two hundred) meters from the edge of the springs and either side of the river in a swamp area. c) 100 (one hundred) meters from either side of the river bank. d) 50 (fifty) meters from the left and right of the river bank. e) 2 (two) times the depth of the ravine from the edge of the ravine. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 43 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia f) 130 (one hundred and thirty) times the difference between the highest and lowest tides from the shore. 4. burn down the forest. 5. cut trees or harvest or collect forest products in the forest without having the right or permission from an authorized official. 6. receiving, buying or selling, accepting exchange, receiving custody, keeping or possessing forest products which are known or reasonably suspected to have originated from forest areas that were illegally taken or collected. 7. conducting general investigation or exploration or exploitation of mining materials in forest areas, without the minister's permission. 8. transporting, controlling, or owning forest products which are not accompanied by a certificate of legality of forest products. 9. herding livestock in forest areas not specifically designated for this purpose by an authorized official. 10. carrying heavy equipment and or other tools that are customary or reasonably suspected to be used to transport forest products in forest areas, without the permission of the authorized official. 11. bringing tools commonly used to cut, cut, or chop trees in forest areas without the permission of the authorized official. 12. dispose of objects that can cause fire and damage and endanger the existence or sustainability of forest functions into the forest area. 13. remove, carry, and transport wild plants and animals that are not protected by law originating from forest areas without the permission of the authorized official. d. provisions regarding removing, carrying and or transporting protected plants and or animals shall be regulated in accordance with the prevailing laws and regulations. in order to guarantee the implementation of forest protection, certain forestry officials in accordance with the nature of their work are given special police powers, namely: a. conducting patrols / tracing in the forest area or its jurisdiction; b. checking documents or documents relating to the transportation of forest products within the forest area or its jurisdiction; c. receive reports of criminal acts involving forests, forest areas and forest products; d. looking for information and evidence of the occurrence of a criminal act concerning forests, forest areas and forest products; e. in the case of being caught red-handed, it is obligatory to arrest the suspect to be submitted to the authorities; and f. making reports and signing reports on the occurrence of criminal acts relating to forests, forest areas and forest products. http://creativecommons.org/licenses/by-nc-sa/4.0/ 44 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ii. legal action against perpetrators of forest burning in indonesia according to the forestry law and the law on environmental protection and management article 1 paragraph (1) of the pplh law states that the environment is a spatial unit with all objects, forces, conditions, and living things including humans and their behavior that affect nature itself, the continuity of life and the welfare of humans and other living creatures. therefore, the assumption that humans are the most powerful creatures is not true. the case of forest and land fires is proof that humans are the main actor contributing to the damage to nature that threatens the survival of life. the increasing need due to the increasing number of human population will have an impact on the efforts to have personal ownership, especially regarding the needs of the community at large. the issuance of permits for the management and use of forests and land is an economic step in order to meet the needs of many communities carried out by corporations. however, in the process of forest management and utilization starting from the pre-licensing stage, when the permit has been issued and after the permit's validity period has expired, clear boundaries are given (arief, 2019: 11). these limits are provided through the prevailing laws and regulations in order to minimize all forms of threats and risks to environmental pollution and destruction in order to maintain the sustainability of life and the ecosystem. however, the fact cannot be denied when the haze disaster that hit indonesia, especially in sumatra and kalimantan, was contributed by large companies. with an area exposed to a vast haze disaster that exceeds national borders, of course it takes a concrete effort to end the haze disaster caused by burning land and forests. one of them is by conducting criminal law enforcement against perpetrators of forest and land burning, both individuals and companies. as an authorized institution, the police have carried out legal proceedings against individuals and companies that perpetrate forest burning. the police action at least has shown that there is an effort to enforce the law against the perpetrators of forest and land burning. the question then arises what legal instrument will be used in prosecuting the perpetrators of forest burning when there are two laws regulating? for further information, it can be seen how the criminal provisions for perpetrators of forest and land burning are in accordance with these two laws (hero, 2018: 5): a. law number 41 of 1999 concerning forestry article 49 of the forestry law states that rights or permit holders are responsible for forest fires in their working areas. and article 50 paragraph (3) letter d states that everyone is prohibited from burning the forest. but http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 45 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia unfortunately, the law does not explain the criminal provisions regarding article 49. the criminal provisions as regulated in article 50 paragraph (3) letter d are regulated in article 78 paragraph (3) which states whoever deliberately violates the provisions referred to in article 50 paragraph (3) letter d, is punishable by a maximum imprisonment of 15 (fifteen) years and a maximum fine of rp. 5,000,000,000.00 (five billion rupiah). meanwhile, if the perpetrator is a business entity, article 50 paragraph (14) states that the criminal act as referred to in article 50 paragraph (1), paragraph (2), and paragraph (3) is committed by and or on behalf of a legal entity or business entity. , the charges and criminal sanctions imposed on the management, either individually or collectively, are subject to punishment in accordance with the respective penalties plus 1/3 (one third) of the sentence imposed. b. law no. 32 of 2009 concerning environmental protection and management referring to the explanation of article 21 paragraph (3) letter c of the pplh law, it states that what is meant by "environmental damage related to forest and / or land fires" is the effect of changes to the environment in the form of environmental damage and / or pollution related to forest and / or land fires caused by a business and / or activity. although the pplh law specifically contains articles on burning land in article 108 which is as follows: article 108 anyone who burns the land as referred to in article 69 paragraph (1) letter h, shall be sentenced to imprisonment for a minimum of 3 (three) years and a maximum of 10 (ten) years and a fine of at least idr 3,000,000,000.00 (three billion rupiah) and a maximum of rp.10,000,000,000.00 (ten billion rupiah). however, if the explanation of article 21 paragraph (3) letter c is used, then the perpetrators of forest and land burning can use article 98 and article 99 which are as follows: article 98 anyone who deliberately commits an act which results in exceeding ambient air quality standards, water quality standards, seawater quality standards, or environmental damage standard criteria, will be sentenced to imprisonment for a minimum of 3 (three) years and a maximum of 10 (ten) years. and a fine of at least rp. http://creativecommons.org/licenses/by-nc-sa/4.0/ 46 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3,000,000,000.00 (three billion rupiah) and a maximum of rp. 10,000,000,000.00 (ten billion rupiah). if the act as referred to in paragraph (1) results in a person being injured and / or a danger to human health, the punishment shall be imprisonment for a minimum of 4 (four) years and a maximum of 12 (twelve) years and a fine of at least idr 4,000,000,000.00 ( four billion rupiah) and a maximum of rp 12,000,000,000.00 (twelve billion rupiah). if the act as referred to in paragraph (1) results in a serious injury or death, the person shall be punished with imprisonment for a minimum of 5 (five) years and a maximum of 15 (fifteen) years and a fine of at least idr 5,000,000,000.00 (five billion rupiahs). ) and a maximum of rp. 15,000,000,000.00 (fifteen billion rupiah). article 99 anyone who due to their negligence results in exceeding ambient air quality standards, water quality standards, seawater quality standards, or environmental damage standard criteria, shall be punished with imprisonment for a minimum of 1 (one) year and a maximum of 3 (three) years and a maximum fine. a minimum of idr 1,000,000,000.00 (one billion rupiah) and a maximum of idr 3,000,000,000.00 (three billion rupiah). if the act as referred to in paragraph (1) results in a person being injured and / or a danger to human health, the punishment shall be imprisonment for a minimum of 2 (two) years and a maximum of 6 (six) years and a fine of at least idr 2,000,000,000.00 (two). billion rupiah) and a maximum of rp. 6,000,000,000.00 (six billion rupiah). if the act as referred to in paragraph (1) results in a person being seriously injured or dead, the person shall be punished with imprisonment for a minimum of 3 (three) years and a maximum of 9 (nine) years and a fine of at least idr 3,000,000,000.00 (three billion rupiah) and a maximum of rp. 9,000,000,000.00 (nine billion rupiah). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 47 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia meanwhile, if the perpetrator is a business entity or is related to work in a business entity it is regulated in article 116 to article 119 which is as follows: article 116 if an environmental crime is committed by, for, or on behalf of a business entity, the criminal charges and criminal sanctions are imposed on: the business entity; and / or the person giving the order to commit the criminal act or the person acting as the activity leader in the criminal act. (2) if the environmental crime as referred to in paragraph (1) is committed by a person, who is based on a work relationship or based on other relationships acting within the scope of work of a business entity, the criminal sanction is imposed on the person who gave the order or leader in the criminal act regardless of the criminal act being committed alone or together. article 117 if a criminal charge is filed against the order giver or the leader of the criminal act as referred to in article 116 paragraph (1) letter b, the punishment imposed is in the form of imprisonment and a fine heavier by one third. article 118 for criminal acts as referred to in article 116 paragraph (1) letter a, criminal sanctions are imposed on the business entity represented by the management authorized to represent inside and outside the court in accordance with the statutory regulations as functional actors. article 119 in addition to the crimes referred to in this law, business entities may be subject to additional penalties or disciplinary measures in the form of: a) deprivation of profits from a criminal act; b) the closure of all or part of the place of business and / or activity; c) correction due to criminal acts; d) obligation to do what was neglected without rights; and/or http://creativecommons.org/licenses/by-nc-sa/4.0/ 48 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia e) placement of the company under supervision for a maximum of 3 (three) years. the concept of a cause-and-effect relationship in criminal law is a form of proof whether it is true that a certain action is categorized as a criminal act, either causing harm (material offense) or not causing harm (formal offense). the three laws only adhere to the teaching against material law where there is a crime when there has been a loss. this teaching is not only an obstacle in ensnaring the perpetrator because there is only a crime when an error occurs (material offense). whereas the impact of forest and land fires is massive and crosses national borders (fachmi. 2014: 17). conclusion protection of forests and forest areas is an effort to prevent and limit the destruction of forests, forest areas and forest products caused by human actions, livestock, fires, natural forces, pests and diseases. the haze disaster that hit indonesia beyond national borders, especially in the sumatra and kalimantan regions, was contributed by large companies. the case of forest and land fires is proof that humans are the main actor contributing to the damage to nature that threatens the survival of life. authors suggest that forest protection aims to obtain optimal benefits for the welfare of the entire community in an equitable manner while maintaining its sustainability. for this reason, harmony is needed between the government and the people in preserving the forest. forestry officers and the police carry out their respective duties in accordance with the law. the community must also participate in supporting and taking actions in efforts to protect forests. most of the forest fires that occur in indonesia are the act of large companies and corporations. for this reason, the authorized government must be firm and immediately impose criminal sanctions against the corporation concerned. references agustiar, a. b., mustajib, m., amin, f., & hidayatullah, a. f. (2020). kebakaran hutan dan lahan perspektif etika lingkungan. profetika: jurnal studi islam, 20(2), 124-132. alisjahbana, a. s., & busch, j. m. (2017). forestry, forest fires, and climate change in indonesia. bulletin of indonesian economic studies, 53(2), 111-136. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 49 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia alfia, a. n., samekto, a., & trihastuti, n. (2016). tanggung jawab perusahaan transnasional dalam kebakaran hutan di riau dalam perspektif hukum internasional. diponegoro law journal, 5(3), 1-14. cahyono, s. a., warsito, s. p., andayani, w., & darwanto, d. h. (2015). faktor-faktor yang mempengaruhi kebakaran hutan di indonesia dan implikasi kebijakannya. jurnal sylva lestari, 3(1), 103-112. chisholm, r. a., wijedasa, l. s., & swinfield, t. (2016). the need for long-term remedies for indonesia’s forest fires. conservation biology, 30(1), 5-6. herawati, h., & santoso, h. (2011). tropical forest susceptibility to and risk of fire under changing climate: a review of fire nature, policy and institutions in indonesia. forest policy and economics, 13(4), 227-233. irwandi, j., & ismail, b. (2016). upaya penanggulangan kebakaran hutan dan lahan di desa purwajaya kecamatan loa janan kabupaten kutai kertanegara kalimantan timur. agrifor, 15(2), 201-210. nisa, a. n. m. (2020). penegakan hukum terhadap permasalahan lingkungan hidup untuk mewujudkan pembangunan berkelanjutan (studi kasus kebakaran hutan di indonesia). jurnal bina mulia hukum, 4(2), 294-312. pasai, m. (2020). dampak kebakaran hutan dan penegakan hukum. jurnal pahlawan, 3(1), 36-46. purnomo, h., shantiko, b., sitorus, s., gunawan, h., achdiawan, r., kartodihardjo, h., & dewayani, a. a. (2017). fire economy and actor network of forest and land fires in indonesia. forest policy and economics, 78, 21-31. rasyid, f. (2014). permasalahan dan dampak kebakaran hutan. jurnal lingkar widyaiswara, 1(4), 47-59. supriyanto, s., syarifudin, s., & ardi, a. (2018). analisis kebijakan pencegahan dan pengendalian kebakaran hutan dan lahan di provinsi jambi. jurnal pembangunan berkelanjutan, 1(2), 94 104. retrieved from https://onlinejournal.unja.ac.id/jpb/article/view/5413 suryani, a. s. (2012). penanganan asap kabut akibat kebakaran hutan di wilayah perbatasan indonesia. jurnal aspirasi, 3(1), 59-75. wibowo, k. a. (2019). manajemen penanganan kebakaran hutan dan lahan (karhutla) guna peningkatan ekonomi kerakyatan. jurnal studi sosial dan politik, 3(1), 69-83. http://creativecommons.org/licenses/by-nc-sa/4.0/ 50 journal of law & legal reform volume 2(1) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quote humanity should not remain insensitive to the forest fire or wildfire every year. unless we act, the loss of biodiversity and extinction of herbs, birds and animals and the pains of the trees, birds, animals and the poor is also alarming signal for the extinction of humanity itself. amit ray, nuclear weapons free world peace on the earth http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.goodreads.com/work/quotes/55576688 journal of law & legal reform volume 2(1) 2021 271 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia review article contemporary vision of international rules on electronic arbitration in dispute resolution azab alaziz alhashemi1 1 arab federation of engineering arbitration, egypt alazizalhasemi@gmail.com cited as alhashemi, a. a. (2021). contemporary vision of international rules on electronic arbitration in dispute resolution. journal of law and legal reform, 2(2), 271-294. https://doi.org/10.15294/jllr.v2i1.40239 submitted: august 17, 2020 revised: february 15, 2021 accepted: may 1, 2021 abstract electronic arbitration and the resulting electronic decisions are among the most important modern means of resolving disputes between the parties to the contractual relationship. since the electronic arbitration decision rendered by the arbitrator or arbitration body is made electronically (either in writing or by signature), it requires the availability of the legal rules for its regulation. however, majority of the rules are in the legislation of the various countries of the world. it is obliged to lose party in this decision to implement judicial commitment or by alternative means dealt by the traditional legal systems. these aspects highlighted the need of focusing on the effectiveness of the electronic arbitration decision that is the subject of present study. the study focuses on global and intangible nature of electronic commerce, where there is no specific place. a special law is required to ensure the legal security sought by entrepreneurs. keywords: arbitration disputes; electronic arbitration; international rules journal of law and legal reform (2021), 2(2), pp. 271-294. doi: https://doi.org/10.15294/jllr.v2i1.40239 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i1.40239 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 272 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction mankind has witnessed changes in the modes of production, exchange, communication, way of life with the depth, comprehensiveness and speed since the introduction of modern life in information and communication technologies. these technologies have penetrated certain sectors such as the financial, banking, and the commercial sector to the extent that the methods and practices using them have been transformed. the institutions operating in these sectors are radical and presented as an example of global transformation. the transformation includes the structures and entity of these institutions that resulted in emergence of an organization with no specific site or traditional hierarchical structure or material entity. however, its existence and activity depend on the network of exchanges and communication relationships through which its activities and activities are carried out and its institutional entity is represented. the institutional entity has become a flexible entity that is not present physically, but communicates information and communication. the information and communication revolution has greatly contributed to increase the size of the mainstream that encompassed the world economies and the way of life known as the globalization trend over the last quarter century. the effects of this wealth of information and communication are expected to continue and expand to include all sectors of activity, production, and exchange in societies. in the e-commerce environment, it is natural for disputes to arise, as they do in the non-electronic world. these disputes often involve a foreign party to get engaged between parties not belonging to the same regional domain, raising many questions about the law applicable to the dispute, where it has not. much is being accomplished in the area of collective response to jurisdictional and conflict-of-law issues in the electronic commerce environment. this issue is also related to the effectiveness and importance of using alternative dispute resolution methods, in particular arbitration, to resolve disputes related to electronic commerce. the research problem stems from the recent and increasing use of the internet system at the international and local levels. a lof of problems stem due to lack of technical capacity that a person has to use this method of procurement. in addition, there is insufficient knowledge of the mechanism and conditions regarding its use, particularly in the area of shopping and procurement accompanied by the modernity of the uae legislature in the age of the enactment of the electronic signature and electronic transactions act. this was free of stipulation of any conflict of laws resolution mechanism, along with the scarcity of judicial decisions in this area. the importance of studying the subject of the physical rules of electronic commerce emerges from the effects of technological progress on the means of communication and information. the united nations and the internet community http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 273 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia to find international solutions to these problems, since traditional award rules are not sufficient to find appropriate solutions in a manner compatible with the technical nature of procurement via electronic communication networks. perhaps the most important of these solutions is the adoption of the will standard; however, in its absence the physical rules of electronic commerce in international law are applied in addition to international arbitration and model contracts. the study is significant as a legal library in the arab world considers this field and the lack of legislation in terms of all the problems arising due to the increased use of the internet. the present study presents proposals to the uae legislator through the creation of a legal system due to the recent legal organization of electronic signatures and electronic transactions in the united arab emirates. this is likely to keep abreast of developments and gain benefit from the experiences of some preceeding countries. the scope of study would be in the physical rules of electronic commerce considering their definition, characteristics, sources and evaluation at the organizational level. the nature of the research requires the use of a number of accepted methods of scientific research and the adoption of several approaches, including the descriptive approach to describe the technical. therefore, the analytical (deductive) method would be helpful in this study to discuss the technical problems related to the subject. this study is likely to play a significant role in the elaboration of the provisions and principles, including the mission of the emirati legislator. the emirati legislator elaborates legal texts in a consistent manner with appropriate solutions to the problems of conflict due to modern procurement methods. it is believed that internet system provides new means of communication that urge the emirati society to deal through the world wide web and to cultivate trust between them in this interaction. the study is organized as follows; firstly, the physical rules of electronic commerce are defined, which is preceeded with explaining the network of internet sites. physical rules of electronic commerce e-commerce contracts are more liberal than contracts concluded by traditional means because of the nature of global network contracts, which are characterized by a weak link between such contracts and one or more particular countries. in addition to the universality of the space or scope, the rules of attribution to define the law are applied in the event. it bodes well for the birth of new substantive rules in the legal system of electronic contracts by giving sufficient freedom to the merchants in the field of electronic commerce for construction of this legal system. once they are free, internal systems have no other law governing their contracts other than the law determining ordinances for themselves as long as national laws alone are unable to organize them. the search for substantive rules of an international nature concerning the business of electronic commerce http://creativecommons.org/licenses/by-nc-sa/4.0/ 274 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia outside national laws requires that it be defined in the first branch and distinct from what is suspected in the second branch. defining the physical rules of e-commerce physical rules or rules of customary international trade law are generally defined as the law directly establishing a private and independent organization of each domestic law, for certain legal relations because of its international character. it is also known as a set of principles of systems and rules drawn from all the sources that feed the legal construction and functioning of the group of workers in international trade. it is clear from this definition that it focuses on substantive rules as the constituent rules of international trade law. for this they include, as a professor, the general principles of law, and transit systems. for countries and others, international economic relations can be completely governed by a specific set of rules, including transnational customs and general principles of law or arbitral jurisprudence. these general principles of law are not limited to what was mentioned in article 38 (c) of the statute of the international court of justice. it also includes principles created by general and established customs in international trade (sadiq, 2007). dr. ahmed abdel karim salama is familiar with the rules of materialism as the set of rules that directly establish objective solutions to the problems of international commercial contracts. it separates it from the reference rules contained in national systems of private international law and from the definitions of the physical rules of electronic commerce. these rules consist of a set of customs and practices accepted and established in the virtual society, developed by the judiciary and users of the global network and the governments of countries in the field of communication and information technologies. the term “physical mathematics” for electronic commerce (ecommerce materials) is given to the set of rules that establish direct regulation, especially for legal relationships to distinguish them from the physical rules of commerce. international law, and substantive rules established by national legislators govern private international law relationships directly, because they differ from the supporting rules contained in national legal systems. these rules are better suited in their content and objectives towards electronic transactions. i. distinguishing material rules from suspicions many questions have arisen to distinguish directly applicable rules, which can ensure uniformity and harmony in transactions across the global network, with the necessary application or rules of public policy. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 275 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia a. substantive rules with the necessary application the necessary implementing rules also called as police or security rules, rules of immediate application, or rules of public policy were initially established by the national legislator. these rules were responsible for controlling the internal links with the possibility of extending their rules to be applied to international private relations. under the jurisprudence of private international law, saving recognized the certain national rules of an absolute and mandatory nature that must be applied. the application of these rules is irrespective of the relationship of the legal relationship with more than one legal system, despite its actual orientation in a foreign country. its purpose is to protect society from economic and social risks. substantive rules include an objective that applies directly to the problem in dispute. the rules with necessary application are always applied; whereas, the physical rules are often applied in international trade, so that the boundary can be distinguished between physical rules and rules with necessary application through the following elements: 1) nature of relationship it is understood that the necessary rules of application apply irrespective of the nature of the relationship, whether national or international, having regard to the objectives it seeks to achieve. sometimes, they are a necessary application, when applied absolutely without distinction between internal and international disputes. however, they are substantive rules when applied to private international relations, i.e. relations with a foreign element.1 this is what the foreign trade laws of the former socialist countries were all about. 2) priority of application the rules of necessary application take precedence in application, whether over physical rules or rules of attribution, since the judge must first look for the rules of his law, to determine the extent of their applicability to the relationship. if he cannot find them, he turns to the substantive rules of his legal system, either directly or as a conflict of law. 3) in terms of sources the necessary implementing rules are distinguished by a legislative source, because they are rules of national origin and purpose. the status of the situation is mostly general; so that it neglects the international character once the relationship has entered into the scope of its validity. this means that it is of regional application, because it applies to any person in the territory of the country and cannot be applied outside that region. as for the substantive rules, it can be applied outside the region of the state, which means that they are transnational rules. 1 deby: the role of the rule of conflict in the settlement of international relations, these 1937 bets. http://creativecommons.org/licenses/by-nc-sa/4.0/ 276 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b. substantive rules of international public policy part of the case law has been to distinguish between two types of public policy rules, the first being the rules of the protection system and the second the rules of the general guidance system. the first is intended to protect the private interest or the economically weak party, such as the electronic consumer in consumer contracts, the worker in the employment contract, and the borrower in the loan contract. as for the second, it aims to protect the public interest, and includes special laws relating to credit regulation, trade, prices, investment, transport, the environment, and commerce. the rules of a protective public policy are those which correspond to foreign law. it is proven that it contradicts the fundamental principles of the community in the judge’s country. therefore, it has an exceptional character or has a negative impact, similar to rules of the general directive. these rules are applied directly as soon as the national courts have jurisdiction to hear the dispute and there is a serious link between the dispute and the national legal order of the judge. professor a. chappelle distinguishes between two types of rules in the general directive system. the first type comprises of substantive rules in a specific direction by encouraging and creating private self-regulation compatible with the growth of cross-border trade. while, the second type comprises police and security rules aimed at protecting the economic, social and political objectives. as for the jurisprudence of international trade law, it has been argued that the foundations are based on traders that are the third type of public order known as the general international system. it is defined as the group of rules closely related to international trade that meet all the requirements and needs by encouraging and creating private self-regulation compatible with the growth of trade between countries. it is a set of general rules which do not relate to the fundamental interests of a particular national community. rather, it relates to the specific fundamental interests of the international community, as it comprises of set of rules common to the different legal systems and related to international relations. ii. properties and sources of physical rules it is necessary to observe characteristics in the first branch and to devote the second branch to the search for its sources, after defining the physical rules of electronic commerce and distinguishing them from the rules of public policy and the necessary rules of direct application. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 277 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia a. physical grammatical characteristics the electronic rules of the lax electronica, or what some call “substantive internet law”, have a set of characteristics that distinguish them from the rules of private international law and the law of international traders. those rules are as follows; 1) sectarian and specific rules the particular nature of the virtual community leading to the refusal to apply national legal rules as it was originally established to govern tangible material transactions. the sectarianism of those rules is embodied in its people and subject matter as it is directed to all the users of global network and service providers of digital sites. the sectarianism of these rules is also apparent with regard to the issues they regulate. while, there are detailed rules for each type of international trade, there are also more detailed provisions regulating gender in this type of trade. similarly, professor kan pointed out that this law is in place to govern a small or large group of professionals, i.e. nonprofessionals. the substantive law is only affected by an offer. it is not being limited to a group of practitioners rather it extends to the countries of origin of these rules. the principles of the international institute for the unification of private law promulgated in 1994 that is concerned with international commercial contracts as it includes substantive rules focusing towards two absolute categories of debtors and debtors. as for the quality of the substantive rules of international trade, it indicates that these are rules designed to solve the problems arising from electronic commerce in general. these problems might include; advertising for goods and services, automated data processing, electronic banking, and electronic payment processing systems. it is believed that qualitative and sectarian characteristic is not limited to the persons and transactions provided in the framework of the material rules of electronic commerce. rather, it goes beyond that of the body or institution that applies these rules when the so-called virtual justice that takes place through judges who have held their sessions via networks. these judges render their decisions to expel the subscriber, cancel his subscription to the internet or block him, and suspend his use for a specified period of time. therefore, this jurisdiction is characterized by the confidentiality of its rules, provisions and procedures to ensure compliance of dealers across the global network. 2) automatic rule of origin it must be said that the automatic characteristic was the main feature of the law in its general sense. this is because the customs and norms prevailing among members of society were the basis for the emergence of such laws until modern countries relied on legislation to enact laws, along with the development of modern international trade and its tools. conducting commercial activities through the global network has become a global medium in which traders, consumers and governments come together http://creativecommons.org/licenses/by-nc-sa/4.0/ 278 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia without pre-established rules to regulate this medium. it is logical that these transactions lead to conflicts of interest and violation of rights between members of the new society. this directs towards the need of preventive and curative regulation without going through formal channels as is the case of positive law. therefore, the first rules that have emerged in the field of electronic commerce are the norms and customs established and exchanged by electronic commerce merchants. these merchants have been respected with their conviction and their transactions on the internet. there is no doubt that these norms and customs are automatic rules of origin and have not been adopted by the national legislative authorities of any country. the main advantages of this automatic function are as follows: a) the application of what has been dealt with customs at e-commerce dealers is in line with the technical and technological nature of transactions on the global network. it is digital in nature, as the transmission of data and information takes place via digital media but not on paper. b) the substantive rules of electronic commerce are in line with the expectations of the parties on the global network, as they are intended to lay the foundations of these rules with their practices and customs. these practices and customs are far from national laws that have not yet respected this model of transactions, which means that the application of these rules does not require the intervention of public authorities. c) the automaticity of the birth of these substantive rules has made it flexible and sensitive towards any technical, economic or political effects that occur in the virtual space. this is because, these rules have come in response to the needs of the dealers in the global network reflected by the reality of the network. b. substantive rules the objective rule is generally defined as the rule that establishes provisions governing the essence of the legal relations that deal with its rule, and defines the rights and obligations under it. therefore, this rule distinct from the procedural rule that is limited to clarifying the procedures that guarantee the implementation of substantive law and its application. it directly provides an objective solution to the basis of the conflict, along with several labels including common law of the virtual space, non-national law, transnational law, electronic law, and cross-border law. these laws are opposed by attribution rules, which require reference to the law. it is necessary for a country to extract an objective solution through the law referred to, which means that the physical rules are like the rules of national law that apply directly to the issue in dispute. however, the strength of the physical rules includes customs, usages, and practices that have engaged the dealers in electronic commerce and national legal rules in terms of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 279 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia their objective nature. the national legal rule for its application is determined by the borders of the country that issued those rules, while the physical rules of electronic commerce are distinguished by transitional rules for countries as they do not originate from a specific national authority. there are no international rules governing disputes in electronic commerce, since the global network is not subject to the domination of any country, organization, regional authority, global authority or jurisdiction. this clarifies that the limits of physical electronic rules are crossed as the result of the nature of the transactions governed by those rules. c. direct physical rules the substantive rules of online transactions are distinguished by a direct and objective approach because it provides objective solutions to the problem in dispute directly without deriving solutions by reference to another law. therefore, it is completely different from the traditional conflict method, which is based on the idea of referring to the applicable law. rather, it refers referred to the applicable domestic law that sets the final objective solution to the conflict. d. sources of substantive rules electronic commerce is characterized by the multiplicity and diversity of the rules governing it due to the recent birth of the electronic environment. this is because case law differed on the emergence of internationally unified substantive rules with respect to the internet and electronic commerce. these rules differed from the rules of private international law governing conflicting laws and distinctions based on public international law rules and national rules. therefore, it is necessary to identify the sources of these rules which flow from its provisions and uniformity and harmony can be achieved for these substantive rules. in the light of divergent case law, living the first legal trend was to reject the idea that electronic physical rules (lax electronica) were independent of traditional physical rules (lax mercatornica), and that the former was only a part of its scope and an extension of it. the first team indicates the main international recommendations, including the work of international and regional governmental and non-governmental organizations, in addition to the contractual rules. the other team looked at the sources of the rules on electronic documents, unified international law, european common law, and non-binding law issued by international organizations. these rules depend on commercial practices and customs in this area, as its development is based on contractual rules. the model contracts are developed by international institutions and private activities with self-regulation, along with international customs and international contractual practices. as for the third party, it was concluded that the source of these rules comes from codified professional customs in addition to legal groups. http://creativecommons.org/licenses/by-nc-sa/4.0/ 280 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia from the foregoing, it is clear that the second doctrinal trend neglected the role of international agreements or contracts between individuals who could be an official or unofficial source of the rules in question. on the other hand, it ignored the role of national electronic commerce organizations that contained many rules that correspond to the nature of this type of commerce. international sources international trade has become more diversified, with a set of substantive rules for electronic commerce that has proved to be stand-alone solution to many problems related to electronic commerce and the internet community away from the national framework. they rely on international standards and customs that are an important tributary of these rules, except that practical reality. practical reality has proved that these rules alone cannot contain all the new developments in the new electronic reality, which has prompted many international, regional and professional organizations. the virtual community aims to establish new rules through the agreement, in the light of basic international recommendations and standards. in order to highlight these sources, the physical rules of electronic commerce of organizational origin and research on the physical rules of electronic commerce of automatic origin have been discussed. i. physical rules of e-commerce with organizational origins international agreements and treaties are among the most important sources of substantive rules on the grounds as they establish international nature to regulate legal relations, in which a foreign component is involved. it also involves international recommendations and model laws issued by basic international and regional organizations. the importance of substantive rules in this regard, depends on international legal conventions, along with the need for rules governing its problems and electronic commerce. these agreements and recommendations were an important tributary to the organization of some of the problems of electronic commerce despite the difficulties encountered in its application. the rules of electronic environment include: a. international conventions an international agreement is defined as a written agreement between persons governed by private international law. it intends to provide specific legal effects in private international law, as international agreements have proliferated in the field of traditional international trade. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 281 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as far as the field of electronic commerce is concerned, international agreements dealing with electronic commerce issues is very limited corresponding to the absence of an international collective agreement regulating electronic commerce. therefore, this limited number of agreements is not able to provide sufficient and effective solutions to deal with this large number of electronic commerce transactions. it is necessary to refer to certain agreements concluded in the field of traditional international trade that may be applicable to electronic commerce to address the question. the united nations agreement on contracts for the international sale of goods of 1980 and their trans border circulation were adopted by the countries of the european council in 1981. in addition to the european union rules no. 44 / 2001 concerning jurisdiction, the recognition and enforcement of judgments in civil and commercial matters. finally, it is necessary to refer to the agreement published by the united nations concerning the use of electronic letters in international contracts for the year 2005 a.d. it played a leading role in the development of substantive rules for electronic commerce by seeking to adopt unified rules to remove obstacles in international contracts. in particular, problems result from the questioning of the legal value of electronic communications in international contracts. obstacles may arise in the application of certain international agreements related to commercial law, such as in the case of applying the united nations agreement on the use of electronic letters in international contracts for the sale of goods. where certain obstacles prevent the use of electronic letters, that agreement aimed at overcoming those obstacles by establishing international rules to achieve parity between electronic letters and their paper-based equivalents. the agreement applies when electronic communications create or implement a contract between parties, whose head offices are located in different countries. it is important to note that it is sufficient to implement contract, leading to the application of the law of a contracting state. the application of the agreement to a contract takes place at work or the habitual place of residence in a different country. the agreement does not apply to an international contract, where it is not clear that whether the contract is present between two different countries or from the transactions between the two parties. the agreement permits the application of the internal law of the state intended to deal with within the limits of its internal system. the main purpose of internal system is to protect the legitimate expectations of the contracting parties, with no explicit reference to article 6(5). the article states that the domain name or e-mail address of the party related to a particular country does not create a presumption about the place of business. the contractual system and unilateral systems reject distinction by completely excluding it from the scope to avoid some of the rules of the agreement which are not appropriate for consumers. for instance, article 10(2) assumes that the recipient receives the electronic letter as it enters the site that has been previously determined by the recipient. this means that the consumer http://creativecommons.org/licenses/by-nc-sa/4.0/ 282 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia must see his email continuously and regularly. it should be noted that this agreement is an important source to create physical rules of e-commerce because its actions are carried out by direct application to the contractual relationship. this direct application clearly expresses the material approach to dispute resolution of e-commerce contracts, despite the physical application of the agreement. however, the agreement can be applied through the approach of twoway attribution rules in the law of challenged court. it is observed that the possibility of concluding international agreements related to traditional international trade and electronic commerce through both of the above approaches reflects the possibility of the coexistence of the two approaches to resolve problems of electronic commerce contracts. b. international actions there is scarcity of modern international agreements on the regulation of electronic commerce and electronic data exchange. most international trade agreements do not meet the needs of electronic commerce. moreover, the increase in the number of transactions through electronic data exchange and other means of communication is steady that have become an alternative to paper documents. their acceptability of these modern means highlights the need to create a unified substantive legislative system that is compatible with electronic commerce data . it should be noted that many collective actions, recommendations and guidelines have established model laws. these laws form the core of future agreements because of their practical value with a general commitment to comply with these international recommendations and model laws developed by wellestablished international organizations. appropriate solutions to transactions are conducted on the internet since it is an important source of substantive rules. the european union has also published directives in this field, such as directive 95/46 / ec on the protection of personal data, directive 96/9 / ec on the legal protection of databases, and directive no 99/93 / ec on the common framework for electronic signatures. directive 2000/31 / ec on the legal aspects of information society services is often referred to as the e-commerce directive, as well as on the work of the european commission on dispute settlement, in particular among consumers. calligraphy, including recommendation no 257/98 at 30 years of age 1998, on 25 may 2000 covered all consumer disputes of the financial and services sector in europe. this facilitated information exchange and communication between businesses and consumers. this network offers its services through online mediation (online mediation) and disputes are settled via the internet. recommendation no 257/98 establishes guidelines to ensure the best possible protection of european consumers’ transactions on the internet; therefore, the projects aim to inform consumers about the existence of an online dispute resolution committee. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 283 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in addition, reference should be made to the 1980 organization for economic co-operation and development (oecd) recommendations on special protection and the flow of personal information across borders. according to recommendation no 16, member states shall take all reasonable and appropriate measures to ensure the flow of personal data flows across borders. finally, it is worth recalling some of the directives that preceded the emergence of electronic commerce and aimed at regulating the use of information technologies. the international maritime committee (imc) argued that the rules on electronic bills of lading should be adopted to establish a mechanism to replace the traditional physical paper bill of lading with an electronic bond. under this regulation, the parties agree on the possibility of sending the bill of lading as well as notifying the delivery of the goods by e-mail. finally, mention should be made of the uncitral model law on international commercial arbitration, the model law on procurement of goods, construction and services, electronic commerce and electronic signature, and the arab model law on transactions and electronic commerce. c. basic practices the basic practices included in the field of electronic commerce are physical rules; 1) standard contracts: certain standard contracts in the field of electronic commerce have been drawn up to be compatible with new international trade, as in the french standard contract for electronic commerce between traders and consumers. the conditions were established in accordance with french law. the rules of the model contract are compatible with modern technology because it leads to the creation of special rules. the provisions of this model contract are organized in two parallel parts. the first part contains standard conditions that include the rules governing this contract, and the second part contains details and comments that provide a practical guide for the application of these standard condition. on 19 october 1994, the european commission issued an important recommendation to economists and organizations working in the field of electronic commerce on regarding the usage of the model contract drawn up by the former with the help of comments made by the same committee.the united nations centre for electronic business and enterprise facilitation (underact) adopted recommendation 31 under the title of the agreement on electronic commerce, which includes a model for a contractual approach to electronic commerce operations. 2) general conditions: contracts necessary for the conduct of electronic commerce often deal with many conditions, which are defined by the competent technical or commercial authorities so that each user (network contractor) accepts these conditions. this is required before the start of the transaction on the web, as in thecommunication contracts. under this contract, there is a connection between http://creativecommons.org/licenses/by-nc-sa/4.0/ 284 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia a computer networks device set by the service connection that is imposed by the users of the resource. these conditions should be the common commitment to the rules of certain legal principles of conduct and business. 3) information rental contracts: this contract is closely related to the internet and constitutes a contract for the provision of services, provided by network service providers to network users. this contract is applied, when computer devices are made available to some of the technical capabilities, which leaves the user the freedom to use e-mail and have the information at his disposal, after reserving the required capacity of the site. it is important to note that these actions may be limited at any given time and paid for by the beneficiaries of these services to comply with the rules of conduct established in the field of electronic commerce. 4) contracts for the creation of virtual stores, called some (participation contracts), contracts that the virtual store shares with the virtual shopping centre, which brings together many merchants under the same title, and is thus closer to the traditional shopping centre, which brings together many stores in a complex. consequently, the co-owner of the store will be bound by the general conditions of the same virtual shopping centre governing issues relating to the supervision and respect of the content of the virtual store. d. contractual practices the electronic contract, as one of the elements of electronic law, provides source of the substantive rules of electronic commerce. this is because electronic contract is able to create its own legal system and regulates the relations between the contracting parties in accordance with the principle of the contract. certainly, the law of the chosen parties is considered to be retained by judicial arbitration as in the principle of non-enrichment without cause. the contract, in the first place and in accordance with the above principles, may establish a company governed by the law of the contract, where the parties to the contract may agree on the conditions to be applied. this freedom of individuals is an advanced stage of self-regulation; therefore, the governments must take steps to overcome legal and regulatory obstacles to recognize this freedom and comply with the promulgation of new regulations in this field. however, it is not possible to solve all legal problems. the resulting law does not prevent the use of any legal system of a state to fill the gap that guarantees the possibility of considering the law of the contract for the most emerging cases. this clearly shows that some of the conflict rules must be excluded, so that the parties agree to establish a legal relationship in accordance with the conditions stipulated in the contract. it is important to know that these practices have created rights and obligations for internet service providers and network users . law no. 27 of 1994 on egyptian commercial arbitration adopted this directive in article 39: (1). the arbitral tribunal shall apply to the dispute to pave the way for the freedom of the parties to determine the applicable law. these customary http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 285 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia rules are considered appropriate when the parties explicitly choose the contractual conditions that have been predetermined as essential rules applicable to the dispute. the code of conduct is defined as a set of principles and judgments issued by professional and commercial organizations, national or international, that aim to regulate electronic commerce and ethical conduct rules on the world wide web. some international organizations and institutions have developed rules of conduct for international trade in general and electronic commerce. the most important of these institutions and bodies are : 1) icc: it was established under the international chamber of commerce (unified rules of conduct for the electronic exchange of commercial data by remote transmission) in 1987 with a number of international organizations. the international chamber of commerce has also set up an e-commerce project with three working groups dealing with trade practice issues. icc’s motivation was to develop a self-regulatory framework for e-commerce and make it usable by the merchant community, by revising the guidelines on advertising and online shopping. these guidelines apply to all advertising and marketing activities on the web to promote any type of goods, services, or ethical rules of conduct to be observed by advertisers and merchants to increase public credit for purchases. this ensures advertisers’ free expression and minimize the risks. the icc guidelines on electronic requirements, which came into force in 2003, are used by parties to conduct their electronic transactions. this guide includes all the necessary means to organize contracts on the world wide web and initiate electronic transactions with the least legal risk. this guide was followed by the development and complementing of manuals, including the manual on online media activities. united nations centre for electronic business and enterprise facilitation in march 2001, the centre adopted a recommendation entitled model code of conduct for electronic commerce, which was seen as a means of facilitating electronic commerce transactions in support of the previous recommendation on electronic agreement. this recommendation invites states to promote and develop instruments for the self-regulation of electronic commerce, annexed to an example of these rules, namely the model codes of conduct established by the dutch electronic commerce program. the institute has been working on a number of principles for international commercial contracts since 1994. http://creativecommons.org/licenses/by-nc-sa/4.0/ 286 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia stable habits, customs and practices of electronic commerce it is necessary to distinguish between custom and commercial custom by defining each of them. electronic commerce is defined as the behavior to be adopted by sellers, traders, or consumers of electronic commerce in a particular commercial problem of electronic commerce. the conduct becomes binding and its waiver entails a specific sanction, in which workers in the electronic commerce sector automatically contribute to the substantive rules of electronic law. perhaps the most important of these rules, are what has established the professional community of habits and customs in the digital world of information and communication. this is characterized by the cooperative and sectarian nature of each type of transaction in this virtual world, as in the norms and customs in force. in the field of advertising and promotion of goods and services, it is important to preserve the intellectual property rights . with regard to the application of electronic commerce practices and customs, many customs have been codified and others are in the process of being codified. this is done by including the practices and customs in standard contracts necessary to start electronic commerce. adnan turkmani controls the contract in islamic jurisprudence electronic contracting council the applicable law and the contract council may be effective if the contractors meet at the same place and may be judged in the absence of one of the contractors. according to most case law, the criterion for discrimination in procurement between those present and those absent is the existence of a time lag between the issuance of the acceptance and positive knowledge. the synchronization standard is the distinction between the two contractualization cases. there are two conditions for the formation of the electronic contract board; the presence of the contractors in the chair of the default contract and the beginning of concerns about the formula. the period of validity of the electronic contract board is determined according to the terms of the contract : in an e-mail contract, usually the contract is concluded in writing directly between the two parties, i.e. communication between them is instantaneous. in such case, subcontracting procedure begins from the moment the positive result is published and the beginning of the negotiation, which continues until one or both parties leave the site. however, if the contract is indirect or not instantaneous, the contract council begins from the moment the viewer is informed of the offer, whether it is a product or a service, and continues until the expiry of the specified http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 287 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia period. however, no tradition can be consulted in this regard, due to the novelty of electronic contracts. in the contract via the website, the contract council begins from the moment the contractor has entered the site and continues until the contractor leaves . in the case of a contract award by conversation and viewing, the contract board begins with the issuance of positive results and continues until the end of the conversation . khaled mamdouh ibrahim ibid electronic arbitration on security in e-commerce hababa2 the options of the contract board are as follows3 : 1) a positive party has the right to withdraw its favor before it is combined with acceptance, unless otherwise indicated, he is obliged to stay . 2) the party who wishes to enter into a contract has the right to reflect on the matter before it and is not obliged to choose the contract directly (acceptance option) . 3) the contract is considered by both parties as the right for each of them to withdraw one of the contracts without the consent of the other, as long as contact with the site assigned to the contract still exists (option of the council). however, this is not possible in case of non-option; as the contract now gives the right of withdrawal to one of them. it is with the majority of scholars who say that the council has the opportunity to do so. the jurisprudential trends differed in determining the timing of concluding the contract, and the jurisprudence in this aspect has four directions : 1) the theory of the declaration of acceptance, which considers that the moment of the conclusion of the contract, is the moment when the acceptor is declared. 2) the theory of export acceptance considers that the moment of conclusion of the contract is the moment when the acceptance is issued by the acceptor and that she is separated from it in such a way as to lose the possibility of going back. moreover, measuring on the internet, the contract starts the moment after clicking on the acceptance key, when the acceptance is separated from the acceptor’s will and no longer has the ability to control or reverse it. 3) the time of click or advertising is equal to the time of publication. in an attempt to separate the two previous phases, it is note that the interviewer may declare acceptance and not deliver it. 4) by clicking on the stop button at the top of the electronic display or by leaving the site permanently after clicking on the accept button, the acceptance will not 2 mohammed khaled zureikat: e-commerce contracts online sales contract dar al-hamed analytical study for publishing and distribution jordan 2007 p85 3 musleh ahmad tarawneh and noor hamad al-hijaya, “electronic arbitration”, journal des droits, volume ii, first issue, syria, 2003. http://creativecommons.org/licenses/by-nc-sa/4.0/ 288 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia leave the acceptor’s authority and will remain at the declaration of acceptance stage. eligibility for the electronic contract eligibility in electronic contracts where it is contracted at a distance, it may be difficult for one of the contracting parties to verify the eligibility of the other contractor. in this spatial separation between the parties, it is possible that they do not know all the basic information about each other. therefore, the website dealing is an imaginary place. the electronic contract must be valid and must be issued by two contractors with contractual capacity. this has led specialists in this field to propose solutions and suggestions to avoid this defect, particularly through advertising, which is a neutral third party in which both parties have confidence. although, some legal experts believe that the solution is to adopt a legal system that allows the identity of the parties to be verified by any means. this verification would allow personality verification, i.e. each party can confirm the identity of the other party. it should be noted that the legalization of french consumption stipulated in article 12/18 and the european directive of 20 may 1997 decided that, for each offer to sell a product or service at a distance, the supplier would include in its presentation data relating to the identification of the entity. the identification detail would include the name and address of the establishment and electronic mail address. the electronic contract, like any other contract need to be stored properly and must be issued by two contractors with contractual eligibility. if the parties wish the contract to be properly signed, they must check the question of eligibility by any available means. data submitted by an online contractor may not be correct. in this case, the contractor cannot verify the other contractor’s identification data, which can certainly affect the validity of the contract, if the eligibility of one of the parties or one of them to the contract is already unavailable. the defects of will (defects of consent), which are tainted by the will of the person’s defects, will become inappropriate, because it will not emanate from free will. abdul rasoul abdul redha, d jamal fakher alnkas4 proof of electronic contract judicial evidence focuses on a specific legal fact and the forms prescribed by law. as with traditional contracts, electronic drafting alone is not sufficient to constitute full evidence unless it is signed by those who wish to contest it. evidence in electronic transactions poses many technical difficulties due to the modernity and complexity 4 samir hamed abdul aziz jamal, ibid., p. 79. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 289 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of this technology and the character of the owners of illegal electronic transactions. deception, subtlety, and fraud use high efficiency and quick information technologies to erase any illegal work and its concrete external effects. taher shawky there is trust and security in international commercial contracts concluded by traditional methods, as these contracts are concluded in the presence of the parties to the contract or their legal representatives. they agree by writing on fixed paper that is easy for each party to keep. in e-commerce contracts, the contract is often concluded between two parties who do not have a physical means of communication, which raises many problems as to how to prove the contract during dispute. there is no doubt that if the contract were concluded electronically and performed by the parties without dispute, such implementation would not raise the issue of proof and would not determine the law applicable to them. it should be noted that the increase in the volume of trade via e-commerce networks is closely linked to the availability of stable rules of evidence, as this is the only thing that brings confidence to legal certainty in e-commerce contracts. types of e-commerce contract disputes electronic contractual disputes vary according to their diversity and much jurisprudence is classified into three types, based on the contractual components incorporated in electronic contracts. these contracts are signed between merchants and hybrid electronic contracts to create a virtual store. the contract to enter the network is the oldest type of e-commerce. it is a “contract under which the service provider undertakes to provide the customer with technical access to the internet, by providing the means to activate it. this is the most important communication program for establishing the link between the computers. it performs certain technical steps necessary to register the new customer, in return for the customer’s obligation to pay the prescribed subscription fees. mohammed khalid zureikat5 this contract is binding on both sides and the service provider has the obligation to connect the customer to the network, which implies providing the customer with a username, password and e-mail address. in addition to the contractual obligation, the hotline aims to solve technical problems that the customer may encounter 5 inas khalid, op. cit., p. 129 http://creativecommons.org/licenses/by-nc-sa/4.0/ 290 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia through telephone; although, the customer is solely responsible for paying subscriptions . disputes arising from this type of contract are considered to be one of the most complex types of disputes, because of the legal problems with regard to the interpretation and amendment of the contract. it requires coping with technological advances. a housing contract is also called an information rental that is closely linked to the internet. it is defined as the service contract under which a service provider makes available some of the functionality of its equipment or information tools through the availability to use the hard disk of its computer in another way. this type of contract is concluded by anyone wishing to have a website address or create a virtual store, in which the service provider allocates space on the hard disk of his computer to store subscriber information. this ensures easy access to the subscriber’s website or virtual store for a certain period of time and for a certain value. the second party to the internet access contract only pays the premiums, as the subscriber in the hosting contract, who commits to the obligations. e-commerce contracts online sales payment of subscription fees, acquisition of all the material necessary for the management of its site, and the commitment to abide by a charter of good conduct is required in hosting service provider. this includes several obligations, including the non-management of racial sites, the online sale of objects, etc. it also warns that it may be liable to civil or criminal prosecution if it violates applicable national and international laws . the contract for the establishment of the virtual store is where many merchants gather under an address similar to the traditional shopping. this type of contract has allowed small and medium-sized companies to access new markets to get rid of their products and to break the monopoly of the large institutions in these markets, particularly those specializing in software, publishing books, newspapers, magazines, videos and music. these companies can sell their products at the best prices to avoid transport costs. a physical delivery is where the consumer can pay for the product by credit card and download a book, a cassette, software magazines, and films on his own computer. the store is established in agreement with the service provider or owner of the virtual shopping centre, the latter being obliged to open the participant’s store on the internet. this requires the license to use a specific program allowing him to trade directly on the network. however, it rises many contractual disputes such as compliance with the terms of the agreements between the company and the virtual store service provider, as well as noncontractual disputes such relating to unfair competition or trade secrets. these contracts are the most common electronic transactions, where conflicts are encountered, especially with the consumer, but most of them involve simple http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 291 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia financial values. this has led many countries to adopt several laws to protect the consumer under contract via the internet against arbitrary conditions. law applicability to electronic transactions it is necessary to know the legal implications of electronic transactions and determine the rights and obligations of their parties to verify their validity in accordance with the law applicable to them. this also helps in the identification of law that is necessary to settle disputes arising from such transactions. it is conceivable that these disputes will be brought to court when the parties remain silent on the choice of arbitration as a means of resolving their dispute, if the dominant method of resolving these disputes is through arbitration once the parties have agreed. these transactions fall within the fertile domain of private international law. on the other hand, the conduct of electronic transactions may be associated with the commission of crimes or errors by their sellers, causing damage to others or committing acts or actions involving irregularities or violations of the laws in force in all these cases, it is necessary to know the applicable law. electronic contractual transactions the law of the state in which the common domicile of the contractors is located shall be applied to contractual obligations. electronically agreed transactions are subject to this notice, regardless of how the parties to the transaction communicated to each other to conclude the contract. this is confirmed by article 1477 of the french code of procedure and article 1054 of the dutch code of procedure and international conventions. it is stipulated in all the regulations of arbitration centers to limit the parties’ willingness to choose the applicable law for a link between the disputes or to deal with the law chosen by the parties. if the parties do not agree on the determination of the applicable law, the implied will may be inferred from all the circumstances surrounding their transactions, including the nationality of the parties, their domicile, the currency agreed or fulfilled. in relations with another party, it may be a professional or craft activity or through an institution that frequently carries out transactions such as airlines, insurance companies or banks. it leads to derivation of the concessionaires’ desire to apply that party’s law electronically as the holder of the separate obligation. this reflects the provisions of article iv of the rome convention which apply the law of the state, with which the contract is most closely connected with the law of the state . if the arbitrator or judge is unable to determine the willingness of the parties to apply a specific law considering all the circumstances surrounding their transactions, the case law and judicial system of some countries have been assumed to determine the law governing the contract. in this case, the court imposes a nonexistent will on the contracting parties and evaluates it on the basis of evidence http://creativecommons.org/licenses/by-nc-sa/4.0/ 292 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia drawn from the circumstances of the contract, such as domicile, nationality or place of contract. the law applicable in the absence of the explicit or implicit will of the contractors is determined by fallback controls that the judge may use if he does not comply with the will of the contractors. in this case, the legislator has considered that the contractors being established within a state. one is considered as an adequate criterion to justify the subordination of the contract to the law of that state. however, such an agent may not be able to determine the applicable law, if the contractors do not have a common domicile. a final support agent will then be set up in the event that do not expressly or implicitly agree to subject the contract for a particular law. it may seem difficult for electronic transactions to determine where they are concluded in cases where each party to the transaction has a contract with a country different from the one with which the other party has a contract. conclusion international conventions direct towards transactions containing many legal obstacles. the most important of which is the requirement for traditional writing in some international conventions and the non-acceptance of electronic writing in addition to the problem of delivery over the internet. the united nations convention on the use of electronic communications in international contracts was adopted by the united nations international trade law commission . it was found that most traditional attribution rules could be applied, with the exception of certain attribution rules such as the attribution rule on literary and artistic property and attribution rules referring to the application of the law of the place where legal persons have their headquarters. while personal and regional attribution rules are capable of resolving conflicts of law in international commercial contracts, their dependence on geographical and spatial concentration and location makes their application to electronic contracts a problem that raises many difficulties. this has led to the inability of some private international law standards and controls governing international commercial contracts to cover e-commerce transactions in the event of a dispute over the law applicable due to the nature of the medium used. the proposed solutions to the problem of conflict of laws in electronic commerce contracts are the material electronic approach. the case law is divided into two directions; the first is that its proponents run counter to the idea of the private existence of electronic physical rules and deny any independence from traditional substantive rules. the latter is an extension of it. the second trend believes in the particular existence of electronic physical rules . it confirms its independence from traditional substantive rules, because they originate in an electronic environment and in the arms of electronic commerce. this divergence has not reached the level of negation of the status of the legal system; although, it has not escaped criticism of corrections because of its shortcomings and its inability to take over all disputes arising in the field of electronic commerce. this signifies the need for a conflict approach in private international law to fill the above gaps and deficiencies, with the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 293 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia possibility of adapting some of the rules to support the implementation of electronic commerce contracts. in the absence of commercial premises, this confirms that the two approaches coexist and that it is possible to complement each other . recommendations the present study recommends determining the penalties for questioning this law. there is also need to determine the legal nature of electronic contracts in for investigating the legislative competence. moreover, reference to the applicable law on the basis of both physical and contested approaches is required to provide the necessary protection for electronic commerce. the protection of electronic consumer is always the weak point of these contracts, considering the nature of arab society, the rules of behavior, the habits and customs of the electronic society, and its material rules. http://creativecommons.org/licenses/by-nc-sa/4.0/ 294 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this page intentionally left blank http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 425 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article effectiveness of treatment and recovery of domestic violence victims on semarang regency christophorus divo shubma cahyaningutomo pangudi luhur tarcisius vocational school  christopherdivo@yahoo.com cited as cahyaningutomo, c.d.s. (2020). effectiveness of treatment and recovery of domestic violence victims on semarang regency. journal of law and legal reform, 1(3), 425-436. doi: https://doi.org/10.15294/jllr.v1i3.36702 abstract housekeeping is the smallest community of a society. household a happy, safe, and secure into everyone's dream. wholeness and harmony of a household can be impaired if the attitude, behavior, and self-control cannot be controlled. ultimately can occur domestic violence causing insecurity or injustice against people who are within the scope of the household. from the result of the violence, the victim should be restored to rise physical and psychological conditions. inhibiting factors is a recovery of victims of domestic violence is that most of the victims do not want to restore condition, efforts to resolve it provides socialization, convincing victims of domestic violence to want to restore, to supervise the victims have been recovered. supporting factors is the facility is being used in the recovery process is adequate, the victim does not charge at all during the recovery process. in conclusion, the service process and the recovery of victims of domestic violence conducted by the relevant institutions have been equally effective and in accordance with the legislation in force. keyword: effectiveness; implementation; recovery; treatment; domestic violence submitted: 12 january 2020, revised: 29 april 2020, accepted: 30 april 2020 journal of law and legal reform (2020), 1(3), pp. 425-436. doi: https://doi.org/10.15294/jllr.v1i3.36702. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:christopherdivo@yahoo.com https://doi.org/10.15294/jllr.v1i3.36702 https://doi.org/10.15294/jllr.v1i3.36702 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 426 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 425 table of contents ………………………………………………………….. 426 introduction …………………………………………………………………. 426 method …………………………………………………………………………… 427 effectiveness of treatment and recovery of domestic violence victims on semarang regency ………………………… 427 obstacles to the implementation of recovery of victims of domestic violence and efforts to overcome them …… 432 conclusion …………………………………………………………………….. 433 references ……………………………………………………………………... 433 introduction domestic violence involves violent and/or controlling behavior that is intentional and perpetrated by an individual towards a current or former intimate partner. this form of violence has been a persistent and significant problem in canada and the us. although men can be victimized by this violence, women have been disproportionally represented as victims, as they are almost four times more likely than men to experience domestic violence (reif and jaffe 2019). patients may present with both physical and mental disorders resulting from the abuse, as stress from the trauma can lead to years of health problems, depression and anxiety. unfortunately, many clinicians lack the skills and understanding to identify domestic violence at the onset of treatment, posing a considerable danger to the patient. the doctor may be treating a patient for somatic complaints and depression, yet the victim may not discuss domestic violence until months later, if at all (buel 2002). in the united states, approximately one in six children have witnessed domestic violence (dv) in their lifetimes, and more than one in five have witnessed other assaults in their families. this type of violence exposure has serious implications for youth, increasing the risk for a range of problems including mental illness, substance use, delinquency, and academic and learning challenges. police often serve as first responders to domestic violence incidents. as such, they are in a unique position to identify children exposed to trauma and potentially reduce its deleterious effects. increasingly, cities and municipalities are attempting to incorporate police officers in a more coordinated response to dv, one in which police roles shift from punitive (e.g., investigation and arrest) to advocacy (e.g., assessing victim and family safety and facilitating connection to additional services) (stevens et al. 2019; andhini & arifin 2019; setyaningrum & arifin 2019; juliana & arifin 2019). domestic violence (dv) is an increasing, complex global public health concern (ruddle, pina, and vasquez 2017). psychopathology is a common consequence of childhood abuse, as well as an independent risk factor for child abuse potential http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 427 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia (anderson et al. 2018). this situation of domestic violence is usually caused by family members or intimate partners and frequently within the house (cobos-cali et al. 2018). violence and the fear of violence are emerging as an important risk factor contributing to the vulnerability to human immunodeficiency virus (hiv) infection for women (patrikar et al. 2012). the recognition of domestic violence as a social and political issue has contributed to the progressive identification of a serious situation, considered in 2002 by the world health organization (who) as a public health problem with associated consequences which are devastating to the health and wellbeing of those who suffer it and to the development of the child, family, community and society as a whole (coutinho et al. 2015). in contrast to the common strategies employed in interventions in the united states of america (usa), scourfield (1998) emphasizes that domestic violence intervention programs in the united kingdom (uk) are more likely to involve theoretical approaches based on cognitive behavior, psychodynamics and feminism. domestic violence intervention programs’ models mostly include cognitive-behavioral therapy, feminist therapy, the duluth model, motivational interviewing, individual and psychodynamic counseling (erum, dam, and deyn 2019). method the method is essentially a procedure in solving a problem and to gain scientific knowledge, the work of a scientist will be different from the work of a layman. research is an attempt to find the truth or to better provide truth. in this thesis, the research method used is qualitative research methods. the data collection techniques in this research are the study of literature. after the data is collected then it is processed and tested for its validity using triangulation techniques to draw conclusions. effectiveness of treatment and recovery of domestic violence victims on semarang regency the implementation of recovery of victims of domestic violence carried out in semarang regency by the semarang district social service, the semarang regency family planning and women's empowerment agency, and the semarang police resort are carried out in accordance with applicable laws and regulations. this recovery process has procedures that must be implemented including reporting to one of the agencies authorized to carry out the recovery of victims of domestic violence. in 2015 the number of victims of domestic violence according to bkbpp was 100 people and according to the semarang police resort there were 13 people, in the januaryseptember 2016 period the number of victims of domestic violence recorded by bkbpp http://creativecommons.org/licenses/by-nc-sa/4.0/ 428 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia was 65 people and according to the semarang police resort in 2016, there were 10 people. to find out whether the implementation of recovery of victims of domestic violence has been going well and effectively, it can be seen from the following table data, among others: table. 1 data on implementation of recovery for victims of domestic violence no. government agencies male female amount 1 polres semarang 0 4 4 2 rsud ungaran 9 7 15 3 rsud ambarawa 15 11 26 4 badan kbpp 0 4 4 5 others 2 13 15 total numbers of victims 65 shelters are now seen as a standard source of emergency protection from domestic violence, provided by governments and charities. shelters also provide a crucial base for women and children to access support services and develop long-term strategies for escaping abusive relationships (prenzler and fardell 2017). as noted above, many domestic violence shelters deny access to services to women with active substance use disorders. among those that allow women with substance use disorders to access resources, programs vary in the treatment options available to women (schumacher and holt 2012). a violent episode can be a single act, or a series of violent acts that may persist over a period of minutes, hours, or days. a violent episode may involve single or multiple types of violence (e.g. physical violence, sexual violence, psychological or emotional abuse, or all three types together) (fanslow 2017; muntamah, latifiani, & arifin 2019; kemala dewi & arifin 2019). domestic violence is the most common violence to which women are subjected; unlike the situation for men, who are more likely to be assaulted by a stranger or acquaintance. often, various types of violence coexist within a marital relationship. the woman may be a victim of physical, sexual, verbal or psychological abuse (boughima and benyaich 2012). many studies have demonstrated the importance of children exposed to domestic violence in developing behavioral, emotional, and cognitive difficulties (chan and wong 2019). violence against the spouse affects the person and usually causes external injuries needing treatment, and leaves internal or mental injuries remaining, which may not be visibly apparent throughout the victim's life. it also affects family members, especially young children or teenagers who are severely affected mentally, making them emotionally repressed, aggressive, roguish, and they become inattentive students. domestic violence causes divorces, children run away from home and become homeless and eventually social problems. these events in turn greatly affect the country not only socially but also economically, especially in terms of medical treatment, social welfare, counseling services for victims of domestic violence, and the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 429 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia implementation of preventive measures, and such violence also causes children to learn and absorb it (laeheem 2017). from the table data above it can be seen that the number of victims of domestic violence handled and reported by the semarang police to bkbpp were 4 people consisting of 0 men and 4 women, ungaran regional hospital as many as 15 people consisting of 9 men and 7 female, ambarawa regional hospital as many as 26 people consisting of 15 men and 11 women, bkbpp as many as 4 people consisting of 0 men and 4 women, and another as many as 15 people consisting of 2 men and 13 women. the number that has been handled by bkbpp through p2tp2a unit in the januaryseptember 2016 period is 43 people and 22 people have not been handled. table. 2 data on recovery of victims of domestic violence according to bkbpp in semarang regency period 2015 no. districts male female amount 1 ambarawa 14 18 32 2 brancak 0 1 1 3 bandungan 4 14 18 4 banyubiru 4 8 12 5 bawen 2 11 13 6 bergas 1 7 8 7 bringin 1 2 3 8 getasan 0 2 2 9 jambu 0 4 4 10 kaliwungu 0 0 0 11 pabelan 0 0 0 12 pringapus 1 8 9 13 sumowono 1 3 4 14 suruh 1 3 4 15 susukan 0 1 1 16 tengaran 0 1 1 17 tuntang 7 3 10 18 ungaran barat 9 29 38 19 ungaran timur 6 22 28 total numbers of victims 100 number of cases resolved: 100 it may be necessary to have different intervention methods according to the participants’ cognitive developmental levels. participant cera, for example, was 10 years old and in the formal operational period. she could express her thinking verbally and be thus able to discover positive psychological resources through conversation with the therapist and verbalize her experiences in sessions (kang 2017). according to the turkish law titled “law to protect family and prevent violence against women number 6284,” domestic violence is defined as every instance of physical, sexual, psychological, and economic violence occurring between http://creativecommons.org/licenses/by-nc-sa/4.0/ 430 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia family members or between other people presumed to be family members regardless of whether the victim and perpetrator of domestic violence live in the same home. in particular, the law defines violence against women as violent behavior (as defined previously) that is executed because of a woman's gender or behavior that violates human rights by discriminating based on gender (özçakar et al. 2016). from the table data above it can be seen that the number of victims of domestic violence reported to the kbpp agency and handled by the kbpp agency in the period of 2015 were 100 people consisting of 32 ambarawa districts (14 men and 18 women), bancak district 1 people (1 woman), bandungan district 18 people (4 men and 14 women), banyubiru district 12 people (4 men and 8 women), bawen district 13 people (1 man and 12 women), bergas district (1 male and 7 female), bringin subdistrict 3 people (1 male and 7 female), getasan sub-district 1 person (1 female), jambu sub-district 4 people (4 female), pringapus sub-district 9 people (1 malemale and 8 female), sumowono sub-district 4 people (1 male and 3 female), suruh sub-district (1 male and 3 female), susukan sub-district 1 person (1 female), tengaran sub-district 1 person (1 female), tuntang district 9 people (7 men and 2 women), ungaran district ba rat 38 people (9 men and 29 women), kecamatan ungaran timur 28 people (6 men and 22 women). so the performance of the semarang regency social service, the semarang regency family planning and women's empowerment agency, and the semarang district police in carrying out the process of recovering victims of domestic violence in the january september 2016 and 2015 periods can be said to be effective (right on target) because they have met elements of effectiveness, namely quantity, quality and time that have been achieved. for example, in the january september 2016 period of 65 domestic violence victims reported to the semarang regency kbpp agency 43 have been successfully recovered and returned to the place of origin of the victims and 22 others are still in the process of recovery. successfully recovered 100 victims of domestic violence from 100 cases reported to the kbpp agency, so it can be seen that the performance of the semarang district social service, the family planning and women's empowerment agency and the semarang police have been effective (on target) and efficient. victims are accompanied by a staff member from the police in order to make a proper follow up of the case. the victims of domestic violence don’t pay anything for health care services. mediation: some cases of domestic violence are solved through mediation whereby some perpetrators commit themselves that they won't commit the same act (mukashema 2014). considering optimizing support for diverse survivors, the dv community recently has focused on the inter-relationship between gender norms, socioeconomic status, race, culture, and immigration disparities. often referred to as an “intersectionality framework”, using an intersectional approach can give a voice to marginalized women, challenge stereotypes of the “typical” dv survivor, and highlight the need for culturally-tailored resources. in response to this less monolithic framework of viewing dv survivors’ experiences, culturally-specific dv agencies have been emerging over the past 10–20 years. staff at these agencies provide culturallyhttp://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 431 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia tailored expertise to dv survivors who belong to marginalized, isolated, or otherwise hard to reach groups (ragavan et al. 2018). according to the world health organization violence is the intentional use of physical force or power, threatened or actual, against oneself, another person or a group or community, which either results in or has a high likelihood to cause injury, death, psychological harm, development disorder or deprivation. domestic violence (dv) is a complex and common social phenomenon that takes place in the private domain: among couples or family members (sánchez-guzmán et al. 2017). domestic violence against women is a widespread phenomenon worldwide, affecting one out of three women aged 15 and over (la mattina 2017) the social service in carrying out its function and role as the organizer of recovery of victims of domestic violence has performed its function properly, which is obliged to provide counseling to the reporting corps, then after receiving the report and providing counseling and interviewing the victim is offered whether he wants to proceed to the law or prefer to do mediation and peace if the victim prefers to take legal action then the victim will be accompanied by a social worker to report to the semarang police if the victim chooses peacefully then the victim will be found with a perpetrator of domestic violence to mediate. the risk for domestic violence assault has been studied longer than the risk for recidivism, so it is not surprising that less is known about the risk for post-treatment recidivism. however, clinical treatment issues have motivated much of the recent research, and clinicians and policymakers have become more concerned with the effectiveness of the interventions. research has concentrated on treatment response (e.g. the family planning and empowerment agency through the p2tp2a unit has the following functions and roles to accompany victims to the hospital to conduct a visum et repertum and first treatment, after which the victim is accompanied to report the incident to the semarang district police. after conducting treatment at the hospital and making a report at the semarang police station, the victim will be asked if he wants to continue to the legal route or prefer the mediation path, if the victim chooses the mediation path and prefers to return to his family, the victim will be charged rp. 500,000, if the distance of the house is far, if the distance of the house is close then the victim is not given a fee. if the victim feels scared to return to her house, the victim by members of the p2tp2a bkbpp unit is escorted to the wira adhi karya shelter to recover her condition. all costs start from conducting a visum, covering all costs of care for victims of domestic violence to the cost of returning the victims of domestic violence.engaging in physical violence against one’s partner after treatment) (sartin, hansen, and huss 2006). the family planning and empowerment agency through the p2tp2a unit has the following functions and roles to accompany victims to the hospital to conduct a visum et repertum and first treatment, after which the victim is accompanied to report the incident to the semarang district police. after conducting treatment at the hospital and making a report at the semarang police station, the victim will be asked if he wants to continue to the legal route or prefer the mediation path, if the victim chooses the mediation path and prefers to return to his family, the victim will be charged rp. 500,000, if the distance of the house is far if the distance of the house is close then the victim is not given a fee. if the victim feels scared to return to her house, http://creativecommons.org/licenses/by-nc-sa/4.0/ 432 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the victim by members of the p2tp2a bkbpp unit is escorted to the wira adhi karya shelter to recover her condition. all costs start from conducting a visum, covering all costs of care for victims of domestic violence to the cost of returning the victims of domestic violence. physical assaults by men against their female romantic partners also referred to as intimate partner violence (ipv), represent an important social problem. intimate partner violence results in serious physical injuries and psychological distress for its victims (schumacher, fals-stewart, and leonard 2003). ] demonstrated that yogic breathing alone and in combination with the act of giving testimony, reduced partner violence survivors’ depressive symptoms more than the control condition (clark et al. 2014). the subjects were included in the protocol and were referred to different treatment centers to receive psychotherapy, not to take part specifically in experimental design (tarquinio et al. 2012). witnessing violence is a key form of cv with detrimental effects on physical and mental health. to protect children from transgenerational cycles of violence, early intervention is necessary. psychosocial intervention can include better self-care, functional coping strategies (riedl et al. 2019). obstacles to the implementation of recovery of victims of domestic violence and efforts to overcome them a child or adolescent who has experienced direct victimization of abuse is more likely to exhibit internalized symptoms (an et al. 2017). specifically, the aim was to determine if dv-exposed children disproportionately attend to angry faces compared to non-exposed children and whether this bias in attention was associated with child social-emotional problems. the results were intriguing. young children with a history of dv-exposure, compared to those without, showed equal attention to the non-face stimulus they were assigned to find (i.e., a cartoon hippo); however, they had a significantly and substantially lower duration of fixation on sad and neutral faces. anger and happiness were the emotions for which dv-exposed children’s fixations were equivalent to those of non -exposed children (mastorakos and scott 2019). domestic violence can be classified according to the actions into three types as follows. type 1 is physical violence, which refers to the use of force or a tool as a weapon to hurt the victim such as pushing, slapping, hitting, punching, beating, jerking, squeezing the neck, throwing thing at, and injuring severely with a weapon or a sharp object, etc. type 2 is mental violence, which refers to any action or ignoring to act which causes the victim sorrow or losing rights or freedoms by doing it verbally or through gestures and action such as verbal despising, satirizing, scolding, bawling, yelling, embarrassing, being indifferent, threatening, showing anger, etc. type 3 is sexual violence, which refers to the incident when a husband abuses his wife, a father http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 433 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia abuses his children, an elder relative such as a brother, an uncle, a grandfather abuses his younger relatives, etc. (laeheem 2016). in the implementation of the recovery of victims of domestic violence, there are obstacles experienced when carrying out the process of recovery of victims that is that victims usually do not want the case to be processed through legal channels because the victim feels afraid, besides the victim also feels afraid if his condition is restored at the shelter. conclusion the implementation and cooperation in the recovery of victims of domestic violence carried out by the semarang district social service, the family planning and empowerment agency for women and the semarang district police to their victims have been effective and tried as best they can as actions to restore the conditions of victims of domestic violence, as stated in article 2 government regulation no. 4 of 2006 concerning the implementation and cooperation for the recovery of victims of domestic violence, but even so, there are still a number of things that victims feel have not met the standards. for example, in terms of ease in terms of reporting that there has been violence in the household and the difficulty of eliminating trauma that has arisen as a result of acts of violence 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(2017). domestic violence among persons with epilepsy and their http://creativecommons.org/licenses/by-nc-sa/4.0/ 436 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia caregivers. epilepsy and behavior 71(1), 85–93. sartin, r.m., hansen, d.j., & huss, m.t. (2006). domestic violence treatment response and recidivism: a review and implications for the study of family violence. aggression and violent behavior 11(5), 425–440. schumacher, j.a., falls-stewart, w., & leonard, k.e. (2003). domestic violence treatment referrals for men seeking alcohol treatment. journal of substance abuse treatment 24(3), 279–283. schumacher, j.a., & holt, d.j. (2012). domestic violence shelter residents’ substance abuse treatment needs and options. aggression and violent behavior 17(3), 188–197. http://dx.doi.org/10.1016/j.avb.2012.01.002. setyaningrum, a., arifin, r. (2019). analisis upaya perlindungan dan pemulihan terhadap korban kekerasan dalam rumah tangga (kdrt) khususnya anakanak dan perempuan. jurnal muqoddimah: jurnal ilmu sosial, politik dan hummaniora 3(1), 9-19. retrieved from http://jurnal.umtapsel.ac.id/index.php/muqoddimah/article/view/677. soonok, a. et al. (2017). the effectiveness of intervention for adolescents exposed to domestic violence. children and youth services review 79(1), 132–138. http://dx.doi.org/10.1016/j.childyouth.2017.05.031. stevens, c., et al. (2019). detecting and reducing post-traumatic stress among children exposed to domestic violence: a multi-agency early intervention program. children and youth services review 101(3), 261–269. https://doi.org/10.1016/j.childyouth.2019.03.055. tarquinio, c. et al. (2012). eye movement desensitization and reprocessing (emdr) therapy in the treatment of victims of domestic violence: a pilot study. revue europeenne de psychologie applique 62(4), 205–212. http://dx.doi.org/10.1016/j.erap.2012.08.006. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://jurnal.um-tapsel.ac.id/index.php/muqoddimah/article/view/677 http://jurnal.um-tapsel.ac.id/index.php/muqoddimah/article/view/677 journal of law & legal reform volume 3(3) 2022 311 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 3, july 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: february 8, 2022 revised: may 12, 2022 accepted: june 30, 2022 available online since: july 31, 2022 how to cite: gabagambi, liberatus cosmas, and evaristo emmanuel longopa. “analysis of the legal and institutional frameworks regulating oil and gas resources in tanzania”. journal of law and legal reform 3, no. 3 (2022): 311-348. https://doi.org/10.15294/jllr.v3i3.58625. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article analysis of the legal and institutional frameworks regulating oil and gas resources in tanzania liberatus cosmas gabagambi1 , evaristo emmanuel longopa2 1 college of business education, university of dodoma, tanzania 2 university of dar es salaam school of law, tanzania  muginalibelatus@gmail.com abstract this study examines the legal and institutional framework regulating oil and gas sector in tanzania. oil and gas resources have been considered as the world’s valuable resource. for countries to benefit from these http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i3.58625 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 http://orcid.org/0000-0002-3954-7893 312 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia resources, the presence of adequate laws and institutions is of a paramount importance. the analysis on whether or not tanzania has adequate laws and institutions that regulate oil and gas resources entail thorough review of all necessary legal documents including statutes, legal books, journal articles and policies relating to oil and gas resources in tanzania. the data were collected through documentary review and interview from informants working in institutions established by the petroleum laws for the respective union and zanzibar revolutionary governments. the findings show that legal and institutional frameworks regulating oil and gas in tanzania suffer from practical challenges such as: separate governing laws, lack of coordination for established institutions and overlapping powers among institutions governing oil and gas between union and revolutionary government of zanzibar. the study recommends that laws should be amendment to provide for independent and autonomous institutions, to establish coordinating unit among institutions, harmonization of oil and gas governing laws and instituting transparent and accountable decision-making bodies. keywords: legal, institutional frameworks, oil and gas resources, tanzania introduction oil and gas management is a challenge in developing countries.1 african countries started managing oil and gas resources soon after independence.2 the process of managing oil and gas at the time was faced with challenges as these countries had inadequate laws and institutions to regulate and 1 david e. brown. africa’s booming oil and natural gas exploration and production: national security implications for the united states and china. usa: the strategic studies institute and u.s. army war college press, 2013. pp.1-4 2 sangwani patrick ng'ambi, “permanent sovereignty over natural resources and the sanctity of contracts. from the angle of lucrum cessans,” loyola university chicago international law review, volume 12 issue 2,2015. pp. 2-3, accessed september 16, 2017, https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1176&context=lucilr. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://lawecommons.luc.edu/cgi/viewcontent.cgi?article=1176&context=lucilr journal of law & legal reform volume 3(3) 2022 313 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia manage these resources.3 the institutional inefficiency, oil extraction facilitated by developed countries, using international oil companies (iocs), continued to exploit the african natural resources.4 as a response, many african countries including tanzania improved their legal institutions with a view to protecting the new development in the oil and gas sector.5 this improvement was further facilitated by united nations’ resolution number 1803 (xvii) on permanent sovereignty over natural resources of 1962. this un resolution provides for the ownership and control of natural resources as the right of the peoples and nations to the permanent sovereignty over their natural wealth and resources which must be exercised in the interest of their national development and of the wellbeing of the people of the respective state.6 this principle has resulted not only the shift of controlling and managing oil and gas resources from international oil companies to state owned companies,7 but also changes in the country’s constitutional and regulatory framework for both developed and developing countries.8 these changes attracted the attention of scholars to articulate the extent to which the legal and regulatory frameworks can improve, control and manage oil and gas resources in relevant countries. 3 ibid. 4 example of these countries are nigeria, angola, gabon and chad which have been said to benefit little from oil and gas despite their wealth in these resources. 5 ragnar torvik. “petroleum fund in tanzania? other alternatives may be better,” tanzania: repoa/ cmi, vol.15 number 10 repoa number 46, 2016. available at http://www.repoa.or.tz or http:www.cmi.no. (accessed on january 20, 2018) 6 the united nations general assembly (unga) resolution 1803 of 1962. see also, lila barrera-hernandez. in sovereignty over natural resources under examination: the inter-american system for human rights and natural resource allocation spring, 2006 reporter 12 ann. surv. int'l & comp. l.p 43 7 lemony l.m. “the governance of petroleum sector in tanzania: institutional arrangement and the role of the national oil company” the extractive industries and society, elsevier 4, 2017, pp180-190 8 naazneen h. barma, kai kaiser tuan minh le and lorena viñuela. rents to riches? the political economy of natural resource–led development. usa: the world bank, 2012. http://creativecommons.org/licenses/by-nc-sa/4.0/ 314 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia an overview of oil & gas governance in tanzania like in other countries in africa, oil and gas exploration in tanzania started during the colonial era in 1952.9 by that time, the law governing exploration and exploitation was adopted from british colonial administration.10 after independence, the government faced challenge on how to regulate oil and gas exploration as the colonial government did not leave any local institution responsible for regulating oil and gas exploration. consequently, the government established the tanzania petroleum development corporation (tpdc) in 196911 which later facilitated the discovery of natural gas in the songo songo island in 1974 and mnazi bay in 1982.12 during the first phase (1952-1965) of the exploration, there were no specific law providing for exploration and exploitation of oil and gas resources in the country until the enactment of the petroleum (exploration and production) act 1980.13 however, the petroleum act did not cover the sector comprehensively, it only made provisions for upstream and leaving midstream and downstream unregulated.14 to address such and other discrepancies, the government in 2008 enacted the petroleum act, 2008 9 wilbert, b.k. et al.” the oil and gas law review”. in c.b. strong (ed.), business law research: chapter 19. united kingdom: law business research ltd, 2013. 10 hamudi ismail majamba tanzania’s oil and gas industry: legal regime, management and access rights, recht in afrika – law in africa – droit en afrique 19, 2016. pp. 7-8 11 this was established under the public corporations act no.17 of 1969.through government notice no.140 of 30th may 1969 and began operating in 1973. available at http://www.tpdc-tz.com/aboutus.php (accessed on 18 february, 2018) 12 wilbert, b.k. et al.” the oil and gas law review”. in c.b. strong (ed.), business law research: united kingdom: law business research ltd, 2013. 13 the national natural gas policy, 2013, pp. 1-3 14 see the part of the preamble on general objective of the act and the tanzania national natural gas policy2013, pp. 1-2 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.tpdc-tz.com/aboutus.php%20(accessed journal of law & legal reform volume 3(3) 2022 315 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia which provided for inter alia, midstream and downstream management.15 this act introduced the energy and water utility regulatory authority (ewura) as regulatory authority for midstream and downstream oil and gas operations.16 while exploration is still in progress, it is estimated that 57 trillion cubic of natural gas has been discovered.17 the increase in discovery and ongoing natural gas production led to enactment of the petroleum act, 2015 which is more comprehensive and establishes more institutions with separated functions.18 the act provides for different legal and institutional issues pertinent to the regulation of oil and gas sector in tanzania including upstream, midstream and downstream activities. the regulatory framework for oil & gas in tanzania the legal and regulatory framework for petroleum resources involves a number of legal instruments in form of principal legislation, subsidiary legislation, regulations, rules, regional and international conventions as well as bilateral and multilateral agreement governing oil and gas exploration operations. it establishes the administration system to be used 15 see the general objectives of its enactment and section 2 which provides for importation, exportation, transformation, transportation, storage, distribution wholesale trade and retailer sale of petroleum and petroleum products and related activities. 16 section 3 of the petroleum act, 2008 17 mark henstridge” understanding the boom country study—tanzania” wider working paper 2018/177. available at https://www.wider.unu.edu/sites/default/files/publications/workingpaper/pdf/wp2018-177.pdf 18 see part ii act, no. 21 of 2015. also, see lemony, l.m., “the governance of petroleum sector in tanzania: institutional arrangement and the role of the national oil company.” the extractive industries and society 4,2017. p 1-3 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.wider.unu.edu/sites/default/files/publications/working-paper/pdf/wp2018-177.pdf https://www.wider.unu.edu/sites/default/files/publications/working-paper/pdf/wp2018-177.pdf 316 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia by oil and gas producing countries that facilitate the best exploitation of oil and gas resources.19 regarding this aspect hunter indicates that: petroleum regulatory framework refers to a suite of legislative and policy tools that a state utilises to regulate petroleum exploration and production. specifically, the regulatory framework encompasses petroleum policy, petroleum legislation, the award of exploration and production licences, the conditions for the award of petroleum licences, and the government management of the extraction of petroleum.20 the oil and gas regulations involve legislative frameworks which are the primary instruments for regulating oil and gas exploitation, contractual arrangements for ensuring state participation in the commercial activities, and fiscal regimes for managing revenue.21 tanzania reformed its oil and gas regulatory framework for the purpose of covering exploration and exploitation oil and gas resources from the upstream, midstream and downstream.22 these efforts have been noticed to have started from 1980s to the present where the country has managed to improve oil and gas regulatory framework in the whole chain from exploration to consumption.23 in reforming its oil and gas regulatory framework, exploration and production from the upstream, midstream 19 douglas tlogane mailula, protection of petroleum resources in africa: a comparative analysis of oil and gas laws of selected african states doctoral thesis presented at the university of south africa, 2013, p. 90. 20 hunter t ‘comparative law as an instrument in transnational law: the example of petroleum regulation’ 21(3). bond law review, 2009, 42 at p.45. if you have not read hunter the best citation is to cite douglas only because that is what you are aware of. as quoted by in writing is a sign of laziness. a reader would be asking why did he/she find that author himself/herself to verify truthfulness of the matter he is asserting.???? 21 douglas tlogane mailula, protection of petroleum resources in africa: a comparative analysis of oil and gas laws of selected african states doctoral thesis presented at the university of south africa, 2013. p. 91 22 these streams were not comprehensively covered by the petroleum (exploration and production) act 1980 and the petroleum act, 2008 23 see the long title of the petroleum act, 2015 which provides that the act was enacted to provide for regulation of upstream, midstream and downstream petroleum activities http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 317 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and downstream systems were developed in order to meet the commercial relationship of both the government and private investors.24 the provisions on the governance and regulations of oil and gas regulatory can be found in a numerous legislative instrument. however, the discussion focuses on the constitution of the united republic of tanzania, 1977, the constitution of the revolutionary government of zanzibar, 1984 (revised in 2010), the petroleum act, 2015, the oil and gas revenues management act, 2015, tanzania extractive industries (transparency and accountability) act, 2015 and the oil and gas (upstream) act, 2016 as the main legal instruments with direct bearing to the oil and gas governance. these legal instruments cater for various issues including basic principles governing natural resources including oil and gas resources, regulating oil and gas resources from upstream to downstream operations and establishment of regulatory institutions, governance of revenue derived from oil and gas operations and to provide mechanism for sustainable use of revenues derived from oil and gas resources. the analysis of oil and gas regulatory framework between the union and zanzibar revolutionary governments is hereinafter articulated: i. the constitution of the united republic of tanzania, 1977 (chapter 2 r.e. 2002) the constitution as the basic law sets main pillars for protection of national natural resources. the constitution of the united republic provides the government with mandate to ensure that the national wealth and heritage are harnessed, preserved and applied for the common good and against exploitation of one person by another.25 also, it provides that the use of 24 rasmus hundsbæk pedersen and peter bofin. the politics of gas contract negotiations in tanzania: a review, diis -danish institute for international studies working paper 2015: 03, p. 15 available at http://pure.diis.dk/ws/files/615479/wp_2015_03.pdf (accessed on 16 march 2019 25 see article 9(c) of the constitution of the united republic of tanzania, 1977 http://creativecommons.org/licenses/by-nc-sa/4.0/ http://pure.diis.dk/ws/files/615479/wp_2015_03.pdf 318 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia national wealth should be geared towards the eradication of poverty, ignorance and disease.26 it further provides that natural resources belong to the united republic and are the property of the state authority and collectively owned by the people.27 the constitution imposes the duty to safeguard the property of the state authority by combating all forms of waste and squander, and to manage natural resources for national economy and be used for the development of the people.28 the constitution provides the basis for regulating natural resources in tanzania. it encompasses the principle of national sovereignty over natural resources by providing the state and its persons with obligation to protect and use natural resources. ii. the petroleum act, 2015 the need to improve, control and manage the oil and gas resources led to the enactment of the petroleum act. this was due to increase natural gas exploration and discovery which facilitated the need for comprehensive legal framework to regulate the sector.29 the earlier laws including the petroleum (exploration and production) act 1980 and the petroleum act, 2008 were not comprehensive enough to meet the current oil and gas economy because of inadequacy institutional capacity, transparency and accountability and lack of petroleum revenues management systems. the enactment of the petroleum act in 2015 intended to address existing weaknesses in the legislative frameworks. it is one of the ways of reforming the oil and gas sector and enforcing the promulgated national natural gas policy 2013 and petroleum policy 2014. the act was enacted to provide for regulation, administration, 26 ibid, article 9 (i). 27 ibid, article 9 (j) and art. 27(1). 28 ibid, article 27(1) and (2). 29 the natural resource governance institute tanzania’s” extractive sector legislation: recommendations for effective implementation,”2016. pp.1-5. accessed on march14,2018 https://resourcegovernance.org/sites/default/files/documents/tananiaextractive-sector-legislation.pdf. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 319 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia supervision of upstream, midstream and downstream petroleum activities, establishment of the petroleum upstream regulatory authority, to provide for the national oil company, to secure the accountability of petroleum entities and to provide for other related matters.30 the act covers the whole oil and gas supply chain from the upstream to the downstream. the petroleum act, is applies for both tanzania mainland and zanzibar while providing for zanzibar to apply its own law and institutions in governing resources in tanzania zanzibar.31 the petroleum act vests oil and gas resources within territorial boundaries in the united republic and mandates its exclusively management to the government on behalf of and in trust for the people of tanzania.32 further, the act provides for administration and regulation of upstream, midstream and downstream activities, establishes responsible institutions, licencing processes and procedures, safety and environment, community involvement and participation, financial control and management and settlement of dispute arising from oil and gas operations. the petroleum act, 2015 singles out the tanzania petroleum development corporation (tpdc) as the national oil company representing and protecting government commercial interest in the oil and gas economy. the act has separated institutional functions by establishing several independent institutions. it establishes the petroleum upstream regulatory authority (pura) charged with responsibility to manage upstream activities,33 and oil and gas advisory bureau with responsibility to advise the cabinet on very sensitive issues relating to oil and gas industry.34 in terms of scope, this petroleum act seems to be more comprehensive compared to the repealed ones.35 however, for controlling, governing and supervision of oil and gas operation the act applies to mainland tanzania as tanzania zanzibar is provided with its system. 30 see the long title act, no 21 of 2105 31 section 2 and (2) (b) of the petroleum act. no. 21 of 2015 32 ibid, section 4 (1). 33 ibid, section 11(1). 34 ibid, section 7. 35 the petroleum (exploration and production) act, 1980 and the petroleum act, 2008 http://creativecommons.org/licenses/by-nc-sa/4.0/ 320 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia iii. the oil and gas revenues management act, 2015 the act provides for the establishment and management of the oil and gas fund, to provide the framework for fiscal rules and management of oil and gas revenues and to establish the mechanism for sustainable use of revenues generated from oil and gas resources. the act provides for administrative institutions which include the minister of finance, the bank of tanzania and portfolio investment advisory board. the functions of the minister include: to manage oil and gas revenues, to formulate and supervise policy matters of the fund, and to formulate and monitor broad investment strategies and operation guidelines.36 on the other hand, the functions of the bank of tanzania include: to open accounts of the fund, to operate the accounts of the fund, to determine investment strategies, and to report performance of the fund to the minister.37 the portfolio investment advisory board is dedicated to provide advice the minister on portfolio investment strategy of the revenue saving account of the fund, to report on the governance and overall performance of the revenue saving account of the fund and to make sure that investment consider the current economic conditions and intends to benefit the present and future generations.38 the revenues from the oil and gas are mainly collected by the tanzania revenue authority and the national oil company which have been designated as collectors of oil and gas revenues and which, after executing the assigned task, deposit into two separate accounts the collected revenues which are maintained at the bank of tanzania, namely the revenue holding account and the revenue savings account respectively.39 the bank uses the oil and gas funds to facilitate three major objectives, namely: to ensure maintenance of fiscal and macroeconomic 36 section 4 of the oil and gas revenues management act, no. 22 of 2015. 37 ibid, section 5. 38 ibid, section 12and 13. 39 ibid, section 6 and 7. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 321 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia stability, to guarantee financing of investment in oil and gas, to enhance social and economic development, and to safeguard resource for future generations.40 for the good use of the fund, the act restricts the use of the fund to provide credit to the government, public enterprises, private sector entities or any other person or entity, to use revenues of the fund as collateral or guarantees, commitments or other liabilities of any other entity, for rent seeking or corrupt practices, embezzlement or theft.41 according to the provisions of the act the revenue and accounts managed are those collected form oil and gas operations taking place in mainland tanzania, save for revenue derived from oil and gas resources jointly operated. iv. the oil and gas (upstream) act, 2016 the oil and gas (upstream) act is the main legislation governing oil and gas resources in zanzibar. the oil and gas (upstream) act resulted from the enactment of the petroleum act, which allows zanzibar to have her laws and institutions to manage, administer and regulate oil and gas resources.42 this flexibility of allowing zanzibar to have its enactment on oil and gas is explicitly provided in the petroleum act where the law allow the enactment of laws, establishment of institutions to regulate oil and gas in zanzibar and use of revenues thereof.43 the parliament through the petroleum act delegated the management and administrative powers of the government of the united republic and the legislative powers of the parliament over oil and gas resources in zanzibar to the revolutionary government of zanzibar and house of representatives. in exercising its powers, the revolutionary government of zanzibar enacted the oil and gas (upstream) act, 2016, for the management and administration of oil and gas resources within 40 ibid, section 8. 41 ibid, section 11. 42 ibid, section 2 (2) and (4) (a) and (b). 43 section 2(2)(b), 2(4) (b) and 4(2) and (3) of the petroleum act. no. 21 of 2015 http://creativecommons.org/licenses/by-nc-sa/4.0/ 322 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia zanzibar. the act provides for the regulation of upstream oil and gas activities, establishment of the zanzibar petroleum upstream regulatory authority, the establishment of zanzibar petroleum development company, and secures the accountability of petroleum entities.44 the oil and gas (upstream) act provides its application to include the oil and gas that exists in the territorial land, islets, internal water, territorial sea, contiguous zone, exclusive economic zone and any other area as extended and recognized by international law from time to time.45 this provision indicates that the government of zanzibar has the powers to issue exploration licences onshore and offshore areas within tanzania zanzibar. the revolutionary government of zanzibar uses its laws and institutions established under the oil and gas (upstream) act to protect and manage oil and gas resources for the benefit of the people of zanzibar. the act provides that: the entire property in, and the control of petroleum… under any land or territorial waters in zanzibar…is vested in the government on behalf of the people of zanzibar, and that, petroleum resource is the public property of the people of zanzibar and the government shall hold petroleum rights for the benefit of the people of zanzibar.46 the law provisions guarantee the revolutionary government of zanzibar autonomy over the use of oil and gas resources in tanzania zanzibar. the oil and gas regulatory framework intend to protect the position of the constitution of zanzibar by recognizing zanzibar and its territory, including the offshore and territorial water and its exclusive economic zone, which also covers the offshore oil and gas resources.47 44 see the long title to the oil and gas (upstream) act, no.6 of 2016. 45 section 2 of the oil and gas (upstream) act, no. 6 of 2016. 46 ibid, section 4(1), (2). 47 ibid, section 2, 3, and s 4 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 323 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia also, for the practical operation of the oil and gas sector, the revolutionary government of zanzibar has established different institutions with separate functions in the governance of oil and gas resources. the established institutions range from the ministry responsible for petroleum affairs in zanzibar, the zanzibar petroleum regulatory authority (zpra) and zanzibar petroleum development company (zpdc) as major institutions for regulating oil and gas resources in zanzibar. thus, the present legal framework provides separate law and institutions regulating oil and gas resources between the government of the united republic and revolutionary government of zanzibar. the institutional framework for regulating oil & gas resources the legal framework provides for establishment of different institutions responsible for the regulating of oil and gas resources in tanzania. the established institutions include regulatory institutions and oversight institutions including: the cabinet, the oil and gas advisory bureau, the ministry responsible for petroleum affairs, tanzania petroleum development company (tpdc), petroleum upstream regulatory authority (pura), and the energy and water utilities regulatory authority (ewura) for the union government catering for mainland tanzania.48 institutions for tanzania zanzibar include the zanzibar revolutionary council, the ministry of petroleum affairs, zanzibar upstream regulatory authority (zpra) and zanzibar petroleum development company (zpdc). the objectives and functions of established institutions are analysed starting with those operating in mainland tanzania followed by tanzania zanzibar. 48 see part ii of the petroleum act, no 21 of 2015 http://creativecommons.org/licenses/by-nc-sa/4.0/ 324 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia i. the cabinet unlike it was with the previous legislation, the petroleum act, 2015 introduces the cabinet as institutions responsible for determining oil and gas economy. first, the law provides the cabinet with the duty to oversee all strategic plans and issuance of directives over the oil and gas economy and vests the cabinet with final decision over the petroleum economy.49 the act requires the minister when dealing with oil and gas strategic and development plans, to seek guidance, directives and approval from the cabinet.50 the law provides that the minister responsible for petroleum affairs cannot issue any licence or permit for petroleum activities to any area without first seeking and obtaining approval of the cabinet.51 all approvals relating to the development of the oil and gas sector are done by the cabinet upon advice by the oil and gas advisory bureau which is stationed at the president’s office.52 therefore, the cabinet is the highest institution for oil and gas development decisions making. it is worth noting that the cabinet is a constitutional office that is fully mandated to provide advisory functions to the presidency. it is chaired by the president, and it is composed of the vice president, the president of revolutionary government of zanzibar, prime minister and all ministers. the attorney general also attends the cabinet by virtue of his advisory role to the government of united republic of tanzania in all legal matters.53 indeed, entrusting the approval of all matters on oil and gas in the cabinet addresses the issues of transparency and accountability of the process. it limits the minister’s discretionary powers on licensing and other development permits that for long time have been a preserve of the minister alone. it is an innovative step towards ensuring sustainable governance of oil and gas resources. 49 ibid, section 4(3). 50 ibid, section 5(3). 51 ibid, section 33 (1) (7). 52 ibid, section 7. 53 article 54 (1), (2), (3) and (4) of the constitution of the united republic of tanzania, cap 2 r.e. 2002. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 325 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ii. oil & gas advisory bureau the petroleum act 2015 establishes the oil and gas advisory bureau within the office of the president.54 the bureau's role is to advise the president and the cabinet on all economic matters relating to the oil and gas economy.55 the establishment of the oil and gas advisory bureau was to ensure that the president and cabinet are properly advised before approving any decision relating to oil and gas development. the bureau was introduced because the final decision on oil and gas development is vested in the cabinet. the bureau acts as technical adviser on how the government can invest and benefit from the oil and gas economy. despite the oil and gas advisory bureau there are other institutions such as pura, ewura, the office of the commissioner for oil and gas and tpdc which are responsible for oil and gas development on daily basis. however, these institutions have no advisory roles to the cabinet. it was necessary that to avoid conflicts of interest, a specific advisory body named oil and gas advisory bureau had to be established with an advisory role to the cabinet. despite establishment of the bureau and the nature of the office assigned to advise, the composition of the bureau is not legislated. this might have different implications. on one hand, it gives the president’s office an ample avenue to include any person with prerequisite knowledge, skills and experience in the oil and gas sector to provide such crucial expertise through the bureau to enhance its advisory role. however, on the other hand, lack of clarity as to the composition of the bureau may be challenged with regard to its independence and ability to provide the envisaged advice. 54 section 7 of the petroleum act no. 21 of 2015. 55 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ 326 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia iii. the ministry responsible for petroleum affairs the minister for petroleum affairs is provided with several roles in the petroleum sector. the minister being the overall supervisor of the industry, is entrusted with the following roles: developing and planning oil and gas policies, taking charge of oil and gas exploration and development licences, entering petroleum agreement on behalf of the government, responsible for formulating and reviewing policies regulating the petroleum industry, and taking care of all administrative and management of the oil and gas sector.56 that law also provides the minister responsible for petroleum affairs with the overall supervision of the oil and gas sector. despite being entrusted with all these powers, the minister cannot exercise those powers in his absolute discretionary manner as it used to be in all previous laws governing extractive industry in tanzania. the minister can only exercise major decisions upon seeking and obtaining approval of the cabinet. this limitation to powers of the minister for petroleum affairs addresses the shortcoming of the former laws that had entrusted finality on the minister in terms of decision making. it is not easy for the minister currently to discretionary handle issues of oil and gas development without considering the interests of the country and its people as the final decision to allow or otherwise must be approved by the cabinet. iv. the tanzania petroleum development corporation the tanzania petroleum development corporation (tpdc) is wholly owned by government of the united republic of tanzania as a parastatal, 56 section 5(1,2) of the petroleum act, no. 21 of 2015. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 327 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia with all its shares held by the treasury registrar.57 the petroleum act provides that tpdc as the national oil company is empowered to undertake tanzania’s commercial aspects of petroleum in the upstream, midstream and downstream operations and participating interests of the government in the petroleum and natural gas agreements.58 further, the law provides tpdc with exclusive rights over oil and gas value chain and to participate in the development and strategic ownership of natural gas projects on behalf of the government.59 in addition, tpdc is provided with exclusive rights over petroleum resources and company wishing to carry out petroleum operations in tanzania must do so in a joint venture with tpdc and tpdc has to hold at least 25% of the shareholding.60 this approach under the law ensures that tanzania and its people actively participate in the oil and gas economy. such participation must entail securing benefits of the oil and gas developmental activities to tanzanians in the long run. as such national interests in the oil and gas sector are upheld sufficiently under these arrangements. v. petroleum upstream regulatory authority the petroleum act established petroleum upstream regulatory authority (pura) to operate the oil and gas upstream exploration and production activities.61 the law establishes pura as regulatory authority with its own governing board charged with management and administration of the upstream oil and gas operation.62 pura is empowered with promoting the upstream exploration, processing production sharing agreement and undertaking negotiations of production sharing agreement with iocs. 57 http://tpdc.co.tz/aboutus.php 58 section 8 of the petroleum act, no. 21 of 2015. 59 ibid, section 9. 60 ibid, section 45. 61 ibid, section 11. 62 ibid, section 10, 13, 17 and 18. http://creativecommons.org/licenses/by-nc-sa/4.0/ 328 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia pura also, operates as an advisor to the minister and the government on all oil and gas upstream development plans.63 as such, pura is a government agency in the upstream operations whose duty is to make sure that the government policy, law and directives are implemented by whoever comes in the sector and making sure that government interests are upheld.64 also, the act provides pura with duty to settle all disputes arising from upstream oil and gas operations. vi. the energy and water utilities water regulatory authority the energy and water utilities water regulatory authority (ewura) is another institution established under the energy and water utilities water regulatory authority act.65 the petroleum act recognises ewura’s regulatory powers in respect to mid and downstream petroleum and natural gas activities.66 the authority is responsible for issuance of licences, renewal and cancellation of licences for any company wishing or undertaking mid and downstream oil and gas operation. also, ewura has mandate to determine charges, tariffs and fees to be paid in respect of any activities taking place in the mid and downstream.67 the other functions include: ensuring economic and safety in the mid and downstream operation, control of petroleum quality and standards, environmental health and safety, protecting government interest, ensuring competition and free access of information to the public.68 it is also, responsible for midstream and downstream oil and gas dispute settlement. although all these institutions are union government institutions in dealing with oil and gas issues, their mandates are only limited to activities 63 ibid, section 12 (1). 64 ibid, section 12(2). 65 section 7 of the energy and water utilities water regulatory authority act cap 414 of 2001 66 section 29(1) of the petroleum act, no. 21 of 2015 67 ibid. 68 ibid, section 30. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 329 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia taking place in mainland tanzania. they regulate petroleum affairs in respect to operations in mainland tanzania as the other part of the union has its own institutional framework. oil & gas institutions for tanzania zanzibar the oil and gas (upstream) act stipulates the institutional framework that administers the oil and gas industry in zanzibar. the institutions include the zanzibar revolutionary council, the ministry of petroleum affairs, zanzibar upstream regulatory authority (zpra) and zanzibar petroleum development company (zpdc). i. the zanzibar revolutionary council the oil and gas resources in zanzibar are vested in the government on behalf of the people of zanzibar. all exploration decisions have to be approved by the zanzibar revolutionary council.69 the oil and gas (upstream) act provides the zanzibar revolutionary council with the legal duty to approve any area open for petroleum operation in zanzibar.70 the zanzibar revolutionary council must approve all petroleum development agreements entered by the revolutionary government of zanzibar.71 the revolutionary council is also responsible for approving the model production sharing and production sharing agreement prepared by zanzibar petroleum regulatory authority and submitted to the zanzibar revolutionary council by the minister.72 the zanzibar revolutionary council is also responsible for approving the tendering process and direct negotiation with the eligible company.73 69 section 4 of the oil and gas (upstream) act, no.6 of 2016. 70 ibid, section 34(1). 71 ibid. section 48(2). 72 ibid, section 48(3). 73 ibid, section 49(3). http://creativecommons.org/licenses/by-nc-sa/4.0/ 330 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia furthermore, the council is responsible for approving the development licence to be granted by the minister to the exploration company.74 the council approves the extension of the development licence upon recommendation from the authority and the minister responsible.75 in addition, the bonus payments are determined by the minister and submitted to the zanzibar revolutionary council for approval. the oil and gas (upstream) act provide the revolutionary government of zanzibar and zanzibar revolutionary council with powers to determine and approve petroleum development licences, and thus the development and governance of oil and gas resources are entrusted to the authority of the government of zanzibar. this approach as earlier noted intends to ensure that oil and gas development is not an affair of a single individual but rather the whole government machinery through the revolutionary council is involved. ii. ministry responsible for petroleum affairs the minister responsible for petroleum affairs is entrusted with supervisory and oversight functions in the petroleum sector. the minister is empowered to approve the petroleum agreement, grant development licence, renew, suspend or cancel any petroleum exploration or development licence.76 the minister is also responsible for formulating and reviewing regulations in the petroleum industry, approving petroleum agreements, providing pertinent information related to petroleum development before oversight committees of the house of representatives and developing the petroleum-related policies. the minister also has a supervisory role in ensuring local participation, accountability, transparency and developing an efficient system of revenues management and tax collection, engaging international 74 ibid, section 64(3). 75 ibid, section 70(1). 76 ibid, section 6(1). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 331 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia platforms for petroleum investments and data acquisition, facilitating integrated planning between the petroleum sector and other sectors of the economy in zanzibar and ensuring public awareness and citizen’s knowledge on petroleum activities.77 the minister responsible for oil and gas resources in zanzibar is dutybound to oversee the development of the oil and gas sector by ensuring that good policies, regulations and institutions are in place to govern oil and gas operations. the minister’s powers are limited to laws governing petroleum in zanzibar, and he/she is responsible to the government of zanzibar. iii. zanzibar petroleum regulatory authority the oil and gas (upstream) act provides for the establishment of the zanzibar petroleum (upstream) regulatory authority (zpra). zpra regulates oil and gas upstream operations in zanzibar. zpra is a body of corporate capable of performing its function as an independent legal entity.78 its functions and responsibilities include monitoring and regulating the exploration, development and production of petroleum in zanzibar.79 also, zpra is mandated to advise the minister on granting licences or cancellation of licences, enforcing the requirements of the licences to the license holder and ensuring that license holders maintain trade practices and fair competition practices.80 participating in the management and assessment of petroleum royalty and profits of oil and gas due to state and ensuring that the company upholds laws, regulations and rules governing exploration contracts.81 the authority is responsible for developing and submitting a model of production sharing agreement 77 ibid, section 6(2). 78 ibid, section 7. 79 ibid. 80 ibid, section 8. 81 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ 332 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia to the minister to be approved by the zanzibar revolutionary council and used as guidance in the negotiations of any agreement.82 in performing its functions zpra is accountable to the board of directors.83 the board has oversight and advisory role on policy and strategic issues as well supervisory functions over finance and management of the authority.84 in addition, the board determines the organizational structure of the authority, and it ensures that the authority complies with the laws, rules and guidelines when performing its function as conferred by this act.85 also, zpra is responsible for implementing laws and policies regulating upstream oil and gas resources in zanzibar and coordinating with other institutions within the united republic. however, the general aim of zpra is to safeguard the interest of the revolutionary government of zanzibar by ensuring that the rules and contracts governing oil and gas operations yield profits and contribute to the zanzibar economy. iv. zanzibar petroleum development company the zanzibar petroleum development company (zpdc) is established as a company which the government solely owned under the oil and gas (upstream) act. the zpdc participates in the petroleum and gas upstream activities on behalf of the government.86 it operates as a company limited by shares held by the government on behalf of the people of zanzibar.87it also acts on behalf of the government as a commercial entity responsible for protecting national interest in all petroleum activities.88 82 ibid, section 48(3), (4). 83 ibid, section 12. 84 ibid, section 13. 85 ibid. 86 ibid, section 32(1). 87 ibid, section 32(4). 88 ibid, section 32(5). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 333 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the zpdc is granted exclusive rights over all petroleum resources in zanzibar.89 it is provided with the right to explore petroleum resources and carry out operations.90 upon advice by the zpra and the minister’s consent, the company may enter into partnership with any tanzanian company or a foreign company to carry out petroleum exploration.91 upon entering into a joint petroleum development agreement or partnership with a local or foreign contractor, the zpdc shall maintain a participating interest of not exceeding twenty-five per cent in the petroleum business.92 the zpdc is considered the sole company is holding government commercial interest in the oil and gas operations in zanzibar. however, apart from participating in the upstream petroleum activities, the law does not provide whether zpdc is also responsible for the midstream and downstream oil and gas operation in zanzibar or not. the philosophy behind establishing different institutions governing oil and gas resources by the government of the united republic and the revolutionary government of zanzibar is to have their functions separated.93 thus, there must be institutions responsible for policymaking, regulatory institutions responsible for supervising oil and gas operations, and national oil companies responsible for participating in commercial operations and protecting government commercial interests. all these intend to ensure sustainable management of oil and gas resources in tanzania. it has argued that tanzania coined this system from norway, which has developed its oil and gas sector through a well-known norwegian administrative design of separated functions as the best practice.94 although in norway, all institutions are consolidated into one 89 ibid, section 45(1). 90 ibid, section 55(1). 91 ibid, section 45(4). 92 section 45(5) of the oil and gas (upstream) act, no.6 of 2016. 93 thurber mc, hults dr and heller prp, ‘exporting the “norwegian model” the effect of administrative design on oil sector performance’ (2011) energy policy, elsevier vol. 39,no. 95366-5378. 94 doric b, and dimovski v, ‘managing petroleum sector performance a sustainable administrative design’ economic researchtaylor &francis group,2018, pp. 121-125. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.sciencedirect.com/science/journal/03014215 https://www.sciencedirect.com/science/journal/03014215/39/9 https://www.sciencedirect.com/science/journal/03014215/39/9 334 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia government, which is different from our case, where there are two distinct governments each have their institutions. the governing laws provide circumstances where institutions operate separately and jointly regarding union and non-union matters. therefore, oil and gas being union resource institutions with separated functions have to be introduced to facilitate operations without compromising the interest of the united republic of tanzania. legal challenges in governing oil & gas resources in tanzania the constitution of the united republic vests the control and management of natural resources in the authority of the united republic of tanzania government. it explains that the natural resources constitute the property of the state authority, which is collectively owned by the people and managed for the national economy.95 by the provision of the constitution, it means that the natural resources should be used by the government of the united republic and the revolutionary government of zanzibar. however, neither the constitution nor the governing laws have the provision for natural resource revenue sharing between the government of the united republic and the revolutionary government of zanzibar. as a result, the constitution of the revolutionary government of zanzibar via the 2010 constitutional amendments entrusted oil and gas resources to the zanzibar revolutionary government. they claimed that the same should be removed from the union matters because the union laws denied the revolutionary government of zanzibar access to natural resources.96 this was preceded by several occasions whereby the government of zanzibar denied the international oil companies to access 95 article 27(1) and (2) constitution of the united republic,1977. 96 hamudi ismail majamba tanzania’s oil and gas industry: legal regime, management and access rights, recht in afrika – law in africa – droit en afrique 19, 2016. pp. 11-12. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 335 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia oil and gas exploration in zanzibar on the ground that the exploration benefits the government of the united republic for mainland tanzania.97 it was revealed that there was dissatisfaction on the part of tanzania zanzibar even before the enactment of the petroleum act, 2015. the revolutionary government of zanzibar was dissatisfied and unhappy with the union laws and institutions because such union laws and institutions denied zanzibaris’ control and powers over natural resources, including oil and gas resources.98 as a result, the reforms were expected to give solutions. however, by separating the control and management of oil and gas resources, the laws limit the powers of the government of the united republic over these resources in zanzibar,99 while the constitutional powers over the union matters are still vested in the authority of the government of the united republic.100 according to the nature of the union and legal system regulating oil and gas resources in tanzania, it is very difficult for the government of the united republic and the government of zanzibar to regulate oil and gas resources without resulting in a resource conflict. this is due to the fact that the regulatory framework has introduced separate laws and institutions that regulate oil and gas resources. at the same time, the constitution still maintains oil and gas resources under the authority of the government of the united republic. it is very difficult to practise a separate system for managing and controlling oil and gas resources between the government of the united republic and the government of zanzibar without resulting in conflicts with laws governing the union.101 it should also be considered that the 97 the oil and gas year tanzania, ‘the who’s who of the global energy industry, a state to negotiate’ (2014),15. https// ww.theoilandgasyear.com accessed on 22 january 2018. 98 poncian j, ‘fifty years of the union: the relevance of religion in the union and zanzibar statehood debate’ african review vol. 41, no. 1, 2014, 161-181. 99 section 2 (2) (a)(b), 4(2), (3) of the petroleum act, no. 21 of 2015 and section 2 and 4 of the zanzibar oil and gas (upstream) act, no.6 of 2016 100 article 34(3) of the constitution of the united republic of tanzania, 1977. 101 interview by gabagambi lc (20 february 2020 to officers in the attorney general’s office and the national assembly, dodoma). http://creativecommons.org/licenses/by-nc-sa/4.0/ 336 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia union constitution has not changed by removing oil and gas from the list of union matters. it was noted that given the interest in the oil and gas resources, regulating oil and gas resources in tanzania is not one side decision. still, it requires mutual consensus of the two governments.102 the petroleum act 2015 and zanzibar oil and gas (upstream) act, 2016 are principal laws regulating oil and gas resources in tanzania, whereby the former mainly applies to mainland tanzania in particular with limited applicability to zanzibar while the latter applies to tanzania zanzibar. the petroleum act of 2015 provides the revolutionary government of zanzibar with absolute regulatory powers over oil and gas resources, the legislative powers vested in the house of representatives and the zanzibar revolutionary council is vested with final decision on the oil and gas economy in zanzibar.103 the provisions of the petroleum act 2015 allow the zanzibar government to have its own laws and institutions regulating oil and gas, has led to the revolutionary government of zanzibar to enact zanzibar oil and gas (upstream) act, 2016 to regulate oil and gas resources in zanzibar. the act declares that the entire property and the control of petroleum in land or territorial waters in zanzibar are vested in the government on behalf of the people of zanzibar, and that, petroleum resource is the public property of the people of zanzibar and the government shall hold petroleum rights for the benefit of the people of zanzibar.104 it can be argued that these provisions of these laws are contrary to the constitution of the united republic of tanzania which still maintains that oil and gas are union matters.105 the constitution provides for the ownership of the oil and gas being vested on the united republic of tanzania. 102 interview gabagambi lc (21 january 2020, the attorney general’s office, zanzibar) 103 section 2(2) (a), (b), (4) (a)(b) and 4(1), (2). petroleum act no. 21 of 2015. 104 section 4(1), (2) of the oil and gas (upstream) act, 2016. 105 article 4 and item 15 of the first schedule to the constitution of united republic of tanzania, 1977. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 337 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the constitution provides further that any law made which is inconsistent with the provisions of the constitution such law becomes void to the extent of such inconsistency. 106 as such the provisions of section 2, section 4 of the petroleum act and section 4(1) and (2) of the zanzibar oil and gas (upstream) act, 2016 may be regarded as ultra-vires the constitution of the united republic of tanzania.107 as a result, the provisions of the laws may be contested before the court of law and declared unconstitutional. however, up to date there are not any case instituted to challenge such provisions of the laws governing oil and gas in tanzania. the main possible ground for challenging the same is that provision of the petroleum act contradicts the constitution of the united republic, which vests in the authority of the government of the united republic all matters provided in the list of union matters, including oil and gas resources.108 the constitution of the united republic provides for the state authority to be exercised by state organs in relation to union matters and non-union matters within the government of the united republic and the revolutionary government of zanzibar.109 however, the powers vested in the state organs are limited to matters specified in the list of union matters and those not so listed.110 moreover, there is no mandatory coordination that exists among the established institutions. tanzania zanzibar has its institutions the same as mainland tanzania. through separate laws and institutions, it becomes difficult for the government of the united republic to exercise its sovereign rights and powers over oil and gas resources within tanzania zanzibar. the reasons are that its authority is limited to mainland tanzania and has no power over institutions regulating oil and gas resources in tanzania zanzibar. 106 ibid, article 64(5). 107 hamudi ismail majamba. tanzania’s oil and gas industry: legal regime, management and access rights. recht in afrika – law in africa – droit en afrique 19, 2016, pp12-13. 108 article rt 34(1) and (3) of the constitution of the united republic,1977. 109 ibid, article 4(1) and (2). 110 ibid, article 4(3). http://creativecommons.org/licenses/by-nc-sa/4.0/ 338 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regulating and managing oil and gas resources lacks a harmonized legal and institutional framework that guarantees internal and external sovereignty over the resources.111 thus, the absence of unified legal system governing oil and gas resources has resulted in domestic and international implementation challenges. the governing law provides the government of the united republic and the revolutionary government of zanzibar with powers to control, use and enter contracts with iocs even without mutual consent from the government of the united republic. such powers apply to both onshore and offshore oil and gas resources, contrary to the united nations’ convention on the law of the sea, which provides member states of the convention with powers over offshore resources.112 the sovereignty of the united republic over offshore oil and gas resources and in the exclusive economic zone is in the sole mandate of government of the united republic. when passing laws governing oil and gas resources, it is argued that the legislative organs overlooked internal and external law systems thus resulting in regulatory challenges. it was noted that during the passing of the petroleum act, there was pressure from tanzania zanzibar on the governance of oil and gas resources. as a result, the legislature passed the law to meet political tensions, which resulted in enacting the law that conflicted with the constitution.113 the plain interpretation of the constitutional provisions in relation to the law governing oil and gas resources indicates existence inconsistencies between the constitution and principal legislation governing oil and gas. the separate system of law has made it difficult as to where the sovereignty over oil and gas resources lies. this is due to the reason that laws regulating oil and gas resources provide the government of the united republic and the revolutionary government of zanzibar with separate powers over oil 111 interview with bendera im, conducted by gabagambi lc (8 january 2020, dar es salaam) 112 united nations convention on the law of the sea of 1982, art 56, 77 and 79 113 interview with officer in the ministry of energy conducted by gabagambi lc (6 february, 2020, dodoma) http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 339 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and gas resources. actually, it is the constitution of the united republic which determines where the sovereign rights lie. the oil and gas are a union matter under the constitution though the same is silent on how to govern, develop and manage the same. generally, the sovereignty and ownership of oil and gas resources in tanzania is vested in the united republic. the right to use and explore oil and gas resources between the government of the united republic of tanzania and the revolutionary government of zanzibar is provided under the petroleum laws.114 for example, the petroleum act provides that: “the entire property and control over petroleum in any land to which this act applies are vested in the united republic and shall be exclusively managed by the government on behalf of and in trust for the people of tanzania…”115 it may be argued that legislature misdirected itself by delegating the legislative powers on the list of union matters without following the procedures to alter the list, and the transboundary nature of resources which its governance requires comprehensive laws and institutions. it was stated that the two governments are called upon to take both legal and political measures to resolve oil and gas-related challenges in tanzania. the political mechanism is contemplated to be the temporary measure in addressing the oil and gas challenges between the government of the united republic and the revolutionary government of zanzibar. although the referred political mechanism is considered a temporary measure, it cannot be ignored for political negotiation. thus, there is a need for political consensus and harmonization of laws that regulate oil and gas resources between the government of the united republic and the revolutionary government of zanzibar. generally, the enactments in 2015 and 2016 on oil and gas in tanzania reflect the political consensus on addressing the challenge whereby each government have mandate to 114 interview by gabagambi lc (21 january2020, officers in the office of attorney general in zanzibar) 115 section 4(1)of the petroleum act, no 21 of 2015. http://creativecommons.org/licenses/by-nc-sa/4.0/ 340 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia govern and regulate oil and gas within confines of mandates the petroleum laws provide. institutional challenges facing oil & gas sector in tanzania there exists a dual system of laws and institutions governing oil and gas resources where the government of the united republic and the revolutionary government of zanzibar.116 in performing their functions, the regulatory institutions implement the laws and policies that are not the same between the two governments. the institutions operate only in one part of the union depending on which law govern them. the findings reveal that the institutions established under the petroleum act are considered union institutions, although they have no power to operate in zanzibar. being one state, oil and gas resources regarded as the union resources, were supposed to be regulated by the union institution for union interests.117 as a result, each institution is seen as superior according to the law to which it is subject, thus leaving the gap on what the union institution might be in relation to management and control of oil and gas resources.118 despite the establishment of separate institutions regulating oil and gas resources between the government of the united republic of tanzania and the revolutionary government of zanzibar, there is a need to streamline and harmonise the union's internal and external interests. this is due to limited operation of the current union institutions within mainland tanzania.119 the analysis reveals despite establishment of various institutions responsible for regulating oil and gas resources, decisions relating to oil 116 section 2 (2) (a), (b), 4(2), (3) of the petroleum act, no. 21 of 2015 and section 2 and 4. zanzibar oil and gas (upstream) act, no. 6 of 2016. 117 interview by gabagambi lc (17 and 18 march 2020, tpdc and pura, dar es salaam) 118 interview by gabagambi lc (16 march 2020, petroleum upstream regulatory authority) 119 section 2(2) (a) and (b) of the petroleum act, no. 21 of 2015. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 341 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and gas operations exclusively entrusted on the minister and the cabinet who are vested with the final mandate to decide on strategic issues relating to the oil and gas economy.120 centralizing oil and gas decision making to the cabinet promotes collective decision making. it is a good practice for a country to have a collective decision making on oil and gas as these resources are limited. it is clear that care must be exercised on strategic investments for their exploration, exploitation and utilization. indeed, requiring the minister to submit all strategic investment decisions to cabinet minimizes excessive discretionary powers that might result in corruption. it is a sign of accountability and transparency to have such collective decision making by the cabinet. however, subjecting decision making to cabinet limits the chances for the prospective investors to participate in investment decision making as they have no chance to defend their interests before the cabinet.121 on the other hand, institutions like the oil and gas advisory bureau have been established for advising the president on oil and gas economic strategies. however, the law has not provided the composition of members forming the bureau. the same is the position to tanzania zanzibar where the minister responsible for petroleum affairs and the revolutionary council are entrusted with decision making whereas the final decisions are vested to the zanzibar revolutionary council. the system of using separate institutions to regulate oil and gas resources as supported by the literature is better in countries with a strong legal framework and institutional quality than in countries with the low institutional quality and political stability.122 therefore, tanzania introduced a separated system of law and institution without first improving the regulatory framework.123 the reason for establishing several institutions was to separate the functions and to improve performance of this highly growing oil and gas 120 ibid, section 4(3). 121 interview by gabagambi lc (24 march 2020, equinox dar es salaam) 122 doric b and dimovski v, ‘managing petroleum sector performance – a sustainable administrative design’ economic researchtaylor &francis group, 2018, 121-125. 123 interview by gabagambi lc (28 july 2020, ernest & young, dar es salaam) http://creativecommons.org/licenses/by-nc-sa/4.0/ 342 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia economy. for the established institutions to work properly and effectively there is a need for close coordination, information sharing and independence from each other.124 however, there has been minimum coordination and cooperation among institutions and sometimes there is no direct line of communication in their functions. thus, there is no mandatory coordination between tpdc, pura, ewura and zpra and zpdc, and no coordinating unit established by the regulating system. their cooperation depends on good will of these institutions. the presence of uncoordinated system has resulted into overlapping of powers, conflict of interests, poor information sharing thus likely to result into mismanagement of resources. the challenges are noted by oversight institutions by noting that insufficient coordination among key shareholders is one of the problems facing institutional performance in the oil and gas sector.125 recent evidence suggests that, the economic development of oil and gas sector requires strong legal institutions, legislature, political institutions, competent economic system, transparency, and committed government.126 also, countries are advised to have strong and competent legal and institutional framework.127 atkinson argues that “resources rich countries with good quality institutions have achieved greater rates of 124 bryan lee, kendra dupuy, “understanding the lie of the land: an institutional analysis of petro-governance in tanzania”, journal of energy and natural resources law, vol 36, no.1,85-101, 2018, pp. 85-91, accessed on march 10, 2018,https://www.tandfonline.com/doi/full/10.1080/02646811.2017.1325630?src=recs ys 125 controller and auditor general, general report on the performance and specialised audits for the period ending 31st march, 2017 126 bryan lee, kendra dupuy, “understanding the lie of the land: an institutional analysis of petro-governance in tanzania”, journal of energy and natural resources law, vol 36, no.1,85-101, 2018, pp. 85-91, accessed on march 10, 2018,https://www.tandfonline.com/doi/full/10.1080/02646811.2017.1325630?src=recs ys. 127 andrew n. onejeme, “the law of natural resources development: agreements between developing countries and foreign investor, ’syracuse journal of international law and commerce, vol. 5, no. 1(1977): 2,3,4, &13 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.tandfonline.com/doi/full/10.1080/02646811.2017.1325630?src=recsys https://www.tandfonline.com/doi/full/10.1080/02646811.2017.1325630?src=recsys https://www.tandfonline.com/doi/full/10.1080/02646811.2017.1325630?src=recsys https://www.tandfonline.com/doi/full/10.1080/02646811.2017.1325630?src=recsys journal of law & legal reform volume 3(3) 2022 343 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia investment and saving than resource rich countries with poor quality institutions”128 however, the law provides institutions with limited powers especially on making final decisions. the powers to make decision have been centralized to the minister and the cabinet/revolutionary council. limiting regulatory institutions powers to make decisions might have effects on proper decision making as the same may limit innovativeness and underutilization of knowledge, skills and experience from those managing such institutions. it is argued that the government need to establish strong institutions to regulate oil and gas resources and these should be independent from any political influence and personal interest.129 this allows different institutions to operate the sector and the government should remain the supervisor and policy-making organ. moreover, there should be policies and laws which promote independence of institutions and make them strong in controlling revenues.130 this enables these institutions to make well informed decisions because they have first-hand information about the sector. it also follows that for the country to benefit from extraction industry, it must be adequately prepared in terms of legal and institutional framework before a decision is made on the oil and gas extraction process.131 this is by considering fiscal, technological and expatriate 128 as quoted in mark c.thurber, david r.hults and patrick r.p.heller (2011) exporting the “norwegian model”: the effect of administrative design on oil sector performance, energy policy, elsevier volume 39, issue 9, september 2011,pp. 53665378, doi.org/10.1016/j.enpol.2011.05.027 129 yanko marcius de alencar xavier energy law in brazil (2015) oil, gas and biofuels springer international publishing switzerland isbn 978-3-319-14268-5 (ebook) pp.5282 130 ragnar torvik. “petroleum fund in tanzania? other alternatives may be better,” tanzania: repoa/ cmi, vol.15 number 10 repoa number 46. 2016, pp.1-4 accessed on january 20, 2018, http://www.repoa.or.tz or http:www.cmi.no. 131 humphrey b.p. moshi. “opportunities and challenges for the extraction of natural gas in tanzania: the imperative of adequate preparedness” dar es salaam, economic and social research foundation (esrf), discussion paper no. 48. 2013, pp. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.sciencedirect.com/science/article/pii/s0301421511004125?via%3dihub#! https://www.sciencedirect.com/science/article/pii/s0301421511004125?via%3dihub#! https://www.sciencedirect.com/science/article/pii/s0301421511004125?via%3dihub#! https://www.sciencedirect.com/science/journal/03014215 https://www.sciencedirect.com/science/journal/03014215/39/9 344 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia requirements of the oil and gas sector. this is important for the government to deal with international corporations, which have skills, knowledge, technological advancement and negotiation ability. therefore, the country is supposed to build institutional capacity which will make it benefit from oil and gas economy.132 it is possible for countries with high institutional capacity and strong political institutions to benefit from oil and gas operations as such institutional framework contributes to significant changes to oil and gas reforms.133 it was further advised that where institutional capacity is lacking, it is better to consolidate oil and gas management activities into one regulatory authority. although it is difficult to control and manage oil and gas investment using only one regulatory authority, separation of functions is more difficult to implement especially where there are limited resources in terms of experts, technology, and financial support.134 conclusion the new petroleum laws regulate upstream, midstream and downstream and better regulatory institutions. this has brought improvement to different established institutions by ensuring that oil and gas development projects are properly managed. however, in practice, there is no proper coordination and communication mechanism among established institutions which may lead to well informed investment decisions. 1-8. retrieved from http://www.esrftz.org/pubdetails.php?id=206 (accessed 24th on february,2018) 132 simbakalia j.l., “challenges ahead for tanzania to build new capacities for gas industry development,” dar es salaam, the economic and social research foundation (esrf), paper no 51, 2013, pp.22-24. retrieved from http://www.esrftz.org/pubdetails.php?id=206 (accessed on 14 january, 2018). 133 mark c.thurber, david r.hults and patrick r.p.heller. “exporting the “norwegian model”: the effect of administrative design on oil sector performance, energy policy elsevier volume 39, issue 9, september 2011,pp. 5366-5378, doi.org/10.1016/j.enpol.2011.05.027 134 ibid http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.esrftz.org/pubdetails.php?id=206%20(accessed http://www.esrftz.org/pubdetails.php?id=206%20(accessed https://www.sciencedirect.com/science/article/pii/s0301421511004125?via%3dihub#! https://www.sciencedirect.com/science/article/pii/s0301421511004125?via%3dihub#! https://www.sciencedirect.com/science/article/pii/s0301421511004125?via%3dihub#! https://www.sciencedirect.com/science/journal/03014215 https://www.sciencedirect.com/science/journal/03014215/39/9 journal of law & legal reform volume 3(3) 2022 345 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia bearing in mind that oil and gas development involves wide supply chain that covers different stakeholders, this study recommends for harmonized laws, policies and institutions. oil and gas sector would perform better when the law insists on institutional powers, transparency, when there are effective checks and balance than political decisions. it is submitted here that laws and institutions should focus on development and protection of national commercial interests and the government officials should not use the established institutions for political influence to determine oil and gas economy. further studies can examine the sovereign rights of oil and gas as shared union resource between tanzania mainland and zanzibar. also, they may look for minister and cabinet powers over institutional powers in oil and gas decision making. references administrative design”, economic researchtaylor & francis group 121125 african development bank and the african union report. 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(2013). africa’s booming oil and natural gas exploration and production: national security implications for the united states and http://creativecommons.org/licenses/by-nc-sa/4.0/ 346 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia china. usa: the strategic studies institute and u.s. army war college press. developing countries and foreign investor,’ syracuse journal of international law and commerce, vol. 5, no. 12,3,4, &13 framework for oil and natural gas sector in tanzaniaa review”, journal of applied and advanced research vol. 3(1) 8-17 hamudi, i.m. (2016). “tanzania’s oil and gas industry: legal regime, management and access rights”, recht in afrika – law in africa – droit en afrique 19 14-15 humphrey b.p. moshi. 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(2016). “tanzania’s extractive sector legislation: recommendations for effective implementation. valerie marcel, et al., (2012). “governance challenges for emerging oil and gas producers eedp programme” paper 2012/05 chatham house, london. wilbert, b., et al.” the oil and gas law review”. in c.b. strong (ed.). (2013) business law research: chapter 19. united kingdom: law business research ltd. yanko, m. (2015). energy law in brazil oil, gas and biofuels. switzerland: springer publishing switzerland. acknowledgment none funding information none conflicting interest statement the authors states that there is no conflict of interest in the publication of this article. publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.sciencedirect.com/science/journal/03014215 https://www.sciencedirect.com/science/journal/03014215 https://www.sciencedirect.com/science/journal/03014215/39/9 348 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia about author(s) liberatus cosmas gabagambi, college of business education, university of dodoma, is an assistant lecturer at the college of business education (cbe) and phd candidate at the university of dodoma. can be reached through muginalibelatus@gmail.com or l.gabagambi@cbe.ac.tz evaristo emmanuel longopa, university of dar es salaam school of law, is a lecturer at the university of dar es salaam. can be reached through longopajunior@gmail.com http://creativecommons.org/licenses/by-nc-sa/4.0/ mailto:muginalibelatus@gmail.com journal of law & legal reform volume 3(3) 2022 349 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 395 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article implementation of counseling by bhabinkamtibmas in preventing the spread of hoax in kebumen police station reyhan kusuma central java regional police department, indonesia  reyhankusuma50@gmail.com cited as kusuma, r. (2020). implementation of counseling by bhabinkamtibmas in preventing the spread of hoax in kebumen police station. journal of law and legal reform, 1(3), 395-414. doi: https://doi.org/10.15294/jllr.v1i3.36702 abstract hoax phenomena are becoming more prevalent, especially towards the 2019 election which makes people uneasy and will cause disruption of security and public order or in indonesian ‘keamanan dan ketertiban masyarakat (kamtibmas)’. the national police as a public servant seeks to maintain the kamtibmas situation through bhabinkamtibmas (bhayangkara pembina keamanan dan ketertiban masyarakat). bhabinkamtibmas through counseling is very important in preventing the spread of hoaxes. therefore, research is conducted to find out the description of the spread of hoaxes, the extent to which the implementation of bhabinkamtibmas counseling is related to the partnership approach and problem solving efforts and the factors that influence counseling in preventing the spread of hoax in order to create a safe and peaceful election in kebumen police. keyword: implementation; counseling; bhabinkamtibmas; hoax; general election submitted: 12 january 2020, revised: 29 april 2020, accepted: 30 april 2020 journal of law and legal reform (2020), 1(3), pp. 395-414. doi: https://doi.org/10.15294/jllr.v1i3.36702. issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i3.36702 https://doi.org/10.15294/jllr.v1i3.36702 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 396 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 395 table of contents ………………………………………………………….. 396 introduction …………………………………………………………………. 396 method …………………………………………………………………………… 398 general description of hoax at the kebumen police …..... 399 implementation of extension by bhabinkamtibmas in preventing the spread of hoax ……………………………………… 401 i. implementation of guidance based on police chief regulation number 21 of 2007 ……………………………………... 401 ii. indicators of successful implementation of hoax prevention counseling based on national police regulation no. 3 of 2015…………..………………………………….. 404 iii. implementation of counseling based on campbell’s performance theory …………………………………………………. 407 factors that influence extension by bhabinkamtibmas .. 408 i. legal factor ………………………………………………………...…… 408 ii. law enforcement factor …………………………………..……... 409 iii. law enforcement facilities factor ………………………….. 410 iv. community factor …………..………………………………………… 410 v. cultural factor ……………………………………………………….. 411 conclusion …………………………………………………………………….. 411 references ……………………………………………………………………... 412 introduction the rapid flow of information technology and the influence of globalization makes it easy for people to obtain various information. one of them is through social media. this can be explained in the graphic information on internet user behavior in indonesia at the indonesian internet service providers association (apjii) in 2017 found that the penetration of internet users from 262 million total population of indonesia is 142.26 million. java island became the island that dominates internet users in indonesia with 58.08 percent. this shows that the people in java are active in using the internet in their daily lives. obtained 87.13% using the internet to access social media so it can be concluded that 87.13% actively uses social media. according to taprial and kanwar (2012) in rahadi (2017: 58), "social media is the media used by individuals to become social, online by sharing content, news, photos and others with others." from this definition it is clear, that the public can share information and vice versa with the government. then “digital social networks have substantially facilitated the process of information sharing and knowledge construction” (hara & sanfilippo, 2016; park, 2017). but one negative impact of social media is the spread of hoaxes. however, “this information system also come with http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 397 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia problems, one of which involves the spread of inaccurate information or fake news” (tambuscio, ruffo, flammini, & menczer, 2015). misinformation is more quickly disseminated through social media when there is high uncertainty and high demand for public information about the issues such as crisis (spence, lachlan, edwards, & edwards, 2016) and health concerns (jang, mckeever, mckeever, & kim, in press). in the survey of the indonesian telematics society (mastel) in 2017 it was explained that the form of hoax spreading channels was still dominated through social media at 94.2%. according to rahadi (2017: 61), "hoax is an attempt to deceive or outsmart the reader / listener to believe something, even though the creator of the fake news knows that the news is fake." hoax triggers public unrest and causes hate crime such as persecution in reporting on news tribunnews.com entitled "because the news of a young man's hoax in brebes is engaged by the mass" the phenomenon of hoax is a social problem that causes public unrest so that it disturbs the maintenance of public security and order or ‘pemeliharaan keamanan dan ketertiban masyarakat’ (harkamtibmas). as we know that in 2019 there will be simultaneous elections for the first time in the history of indonesia. simultaneous elections will be held on april 17, 2019. according to mauludi (2018: 260) that "fake news tends to be more interesting, the most common material is fake political news." and according to gilligan and gologorsky (2019) that “from politics to daily news stories to scientific, concern for public news and media misinformation is growing. this type of ‘fake news’ as it is often called, is created to influence public onion or for political motives”. then based on media coverage in online media titled "hoax is predicted to increase ahead of the election. , the officers were asked firmly. and recently there was an appalling hoax related to the holding of 2019 simultaneous elections, reported news.detik.com with the title "hoax 7 containers of voting ballots". as stated by the chairperson of the general election commission (kpu) of central java province sudrajat (2019), "hoax will damage the credibility and integrity of the holding of elections and cause social conflict" and then based on parkinson (2016) and read (2016) that “incorrect information played a critical role in the eventual outcome of the election”. the main activity that must be carried out by members of the indonesian national police is to build resilience and deterrence of citizens against crime. this is in line with polri's efforts in carrying out preventative actions from various aspects that have the potential to interfere with kamtibmas (crime prevention). crime prevention efforts can be effective actions carried out by members of polri in the field, especially members whose task area is directly in contact with the community, such as bhabinkamtibmas (humberto, 2010: 50 in wowor, 2016: 2). one of the functions of bhabinkamtibmas article 26 number (1) point b of police chief regulation number 3 of 2015 is "to guide and educate in the field of law and kamtibmas to increase legal awareness and kamtibmas by upholding human rights (ham)". counseling conducted has an important role to increase public awareness so that the media is wise so that it is not easy to spread hoaxes. the rise of the hoax phenomenon in the kebumen police jurisdiction shows that public awareness is still low to prevent the spread of hoaxes. there are cases of hoaxes through social media that could seize kebumen's public attention as http://creativecommons.org/licenses/by-nc-sa/4.0/ 398 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia kamtibmas disruption throughout 2018, namely, (1) occurring in august 2018, namely the hoax case which unsettled kebumen residents with the emergence of broadcast in the short message application about the existence of dpo cases of mabel polri terrorism, (2) occurred in october 2018, the hoax case of an 8.2 magnitude earthquake (sr) earthquake and the impact of the tsunami would hit the waters of kebumen, making the people of kebumen worried and uneasy. hoax is a social problem that is difficult to get rid of because the behavior of hoaxes is spread by the community itself, so one of the pre-emptive efforts undertaken by the police is to conduct counseling to increase public awareness in preventing the spread of hoaxes. method previous research on preventing the spread of hoaxes has been carried out by annas z (2018). whatsapp social media management as a means of extension is not optimal because there are still shortages at each stage of the activity. likewise, with hoax prevention counseling methods there is a lack of knowledge about hoaxes, communication skills, and multimedia skills at bhabinkamtibmas and the lack of whatsapp group socialization. subsequent research conducted by aditya r. n. (2018) suggests the role of bhabinkamtibmas in preventing religious-based social conflict is considered to be able to carry out its duties and roles in establishing partnerships with warring parties so that the situation of the bogor city police resort area is quite conducive. the approach used in this research is a qualitative method that aims to explain the phenomenon profusely through data collection. a qualitative approach is a particular tradition in social science that is fundamentally dependent on observing humans, both in their area and in their terminology. qualitative research also produces detailed information explained by moleong (2014: 76) "a qualitative approach produces detailed information about a particular case or situation that can and may occur even though this approach is less generalizable as a quantitative approach". this type of research used to obtain in-depth and comprehensive research results is descriptive analysis. according to nazir in prastowo, (2011: 201), "descriptive method is a method used to examine the status of a group of people, an object, a set of conditions, a system of thought, or a class of events in the present". in order to obtain complete information related to the implementation of bhabinkamtibmas counseling in the prevention of the spread of hoaxes. in addition, this study identifies the stages of bhabinkamtibmas counseling based on police chief regulation number 3 of 2015 concerning community policing (polmas) including the planning phase, the implementation phase, and the control phase. as well as indicators of the success of counseling by bhabinkamtibmas in police chief regulation number 21 of 2007 concerning guidance and counseling or ‘bimbingan dan penyuluhan (binluh)’, covering four aspects, namely aspects of the performance of the implementation of community policing, aspects of polmas and bhabinkamtibmas development, aspects of society, and aspects of polri and community relations. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 399 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia then this study developed the concept of media literacy weni (2003) in iriantara (2017: 68): accessing mass media messages, analyzing mass media messages, evaluating mass media messages, and producing mass media messages. as well as in this study developing campbell's performance theory in analyzing the implementation of counseling by bhabinkamtibmas, there are 8 components of campbell's performance namely job specific task proficiency, non-job specific task proficiency, written-oral communication task, demonstrating effort, maintaining personal discipline, facilitating peer peer and team performance, supervision, and management administration. furthermore, this study develops law enforcement theory (soekanto: 2014), there are 5 factors in law enforcement, namely the legal factors themselves, law enforcement factors, facility or facility factors, community factors, and cultural factors, this theory is used in identifying the factors that influence counseling by bhabinkamtibmas. general description of hoax at the kebumen police the following will describe the description of the spread of hoax in the law area of kebumen police station in the 2017 to 2019 (until february). above there are 3 cases of hoaxes since 2017 until 2019 (february) which occurred in the kebumen district police station. of the three hoax cases, none of the suspected hoaxes were investigated by the kebumen police, so no hoax cases were charged by the kebumen police. this is because although the three news hoaxes can be snared by the law because it upsets the kebumen people but there are no kebumen people who report the hoax news. the three cases of hoaxes are spread through social media and short message applications. the first hoax case regarding the emergence of the police dpo broadcast about terrorism cases. in the broadcast, women on behalf of sri pujianti (36), residents of bejiruyung village, sempor tengah district, kebumen regency, were sought by the elite detachment 88 special detachment or detachment 88 elite. this news developed and unsettled the community, then kebumen police clarified that the news was a hoax. because there was no kebumen community who reported the broadcast of the dpo broadcast, kebumen police through the cyber patrol subsatgas did not further investigate who broadcasted the broadcast. but it is estimated that there is another charge from the hoax news, which is estimated that the hoax news is only a strategy made by the victims of fraud sri pujianti so that the woman came out of her hiding place which has been missing since the end of 2017. the second case of hoaxes is the emergence of a chain chat message that says a tsunami is coming. in the message mentioned that the districts of tegal, brebes, kebumen and purworejo there will be a shift of fault lasem fault which is expected to cause an earthquake with a magnitude of 8.2 sr. the message said that the earthquake will occur on december 18, 2018. from the earthquake kebumen, cilacap and purworejo regencies will be affected by the tsunami. this news is very http://creativecommons.org/licenses/by-nc-sa/4.0/ 400 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia disturbing to the public. however, just like the previous hoax case because no one reported the case was not further investigated. the third hoax case is the spread of chain videos through the whatsapp chat application about fish flooding in the middle of the highway. in the video seen the residents who picked fish. next to the video there is a blue inscription "kebumen latitude wadas reservoir". this video disturbs the public because it is feared that the cause of the fish flood is the wadaslintang reservoir kebumen broken and overflowed. according to the smart book of bhabinkamtibmas (2016) there are several factors causing hoax in the community: a. social media is anonymous, so it provides a sense of security for people who intend to evil and like throwing a hoax. social media is online media that support social interaction by using webbased technology that turns communication into interactive dialogue so that interaction is possible without meeting and face-to-face. social media users can register unlimited accounts to make a lot of fake accounts found (accounts that are used not for the right reasons for example to see the target account and to spread hoaxes). data from the national police headquarters of cybercrime unit of 500 million fake facebook accounts spread in indonesia in 2017. fake accounts are anonymous (making no identity) so that makes some people who want to abuse the account to do evil. b. the still very low level of public literacy on online media or social media so that they do not think long about the impact caused by these uses. the ability of media literacy is the ability of individuals to study the media critically, reflectively, and independently and has the responsibility of utilizing the media (iriantara, 2017: 68). media literacy is related to the literacy ability of the media according to sumadiria (2014: 264) "... media literacy is directed at building a joint cultural and intellectual awareness movement about the importance of responding to media flows." so that the public will be critical in responding to any news through the media that circulates. literacy media is one of the most prominent corrective efforts, according to lazer et al.(2017) that “in the currenct context of fake news, one of the most prominent corrective effrots is to call for media literacy interventions.” with good media literacy skills, public awareness and participation will increase so that the spread of hoaxes can be prevented. to find out the level of media literacy in kebumen community, media literacy competencies will be used according to weno (2003) in iriantara (2017: 68). the spread of hoaxes in the kebumen district police station in 2017 s.d. 2019 (february) there have been 3 cases of hoaxes, namely terrorist dpo broadcasts, the threat of an earthquake of 8.2 magnitude and tsunami and the distribution of fish flood videos in wadas lintang kebumen reservoir. the background of the spread of hoaxes in the kebumen polres area is due to the consumptive culture of the community where almost all of the kebumen people already have an android mobile phone that is not supported by good media literacy skills in using the internet. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 401 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. access mass media messages 2. analyzing mass media messages 3. evaluating mass media messages 4. producing mass media messages. c. c. indonesian culture in general is still oriented towards "jarene" or people say, and does not have the tradition of confirming. d. the community is still fun with new things, including the use of social media without taking into account the possibility that will happen. e. lack of productive work low media literacy is related to the education level of kebumen people, which is still relatively low, only a few kebumen people have a bachelor's education. this is also related to the type of livelihood of the kebumen people who are generally a farmer, so this makes the kebumen people easily believe in hoax news. implementation of extension by bhabinkamtibmas in preventing the spread of hoax i. implementation of guidance based on police chief regulation number 21 of 2007 stages of management about counseling are more specifically explained in the regulation of the national police chief no. 21 of 2007 concerning guidance and socialization (bimbingan dan penyuluhan hereinafter called as binluh). in articles 8, 9, 10, and 11 these regulations describe a series of activities from the planning stage to the control. guidance for preparation in the implementation of binluh is regulated in article 8. while the implementation stage is regulated in articles 9 and 10. the control phase (in the decree of the minister mentioned analysis and evaluation) is explained in article 11. in order to be able to analyze the kamtibmas message regarding prevention of the spread of hoaxes, the following stages are in accordance with the decree number 21 of 2007 concerning binluh. a. planning in article 8 police chief regulation number 21 of 2007 concerning binluh regulates the preparation stage which includes several factors as follows: the first factor, in general, the material delivered by bhabinkamtibmas can be in the form of text messages, pictures or videos. bhabinkamtibmas must understand about the material to be delivered, so that bhabinkamtibmas before taking a picture or http://creativecommons.org/licenses/by-nc-sa/4.0/ 402 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia video from the internet is expected to have media literacy capabilities, namely at the level of analyzing the material well, this is intended so that bhabinkamtibmas is not wrong in delivering material preventing the spread of hoaxes. for the production of messages in the form of images and videos cannot be done optimally by the kebumen police bhabinkamtibmas because there is a need for skills to make messages in the form of images and videos. the kebumen police bhabinkamtibmas utilize the kebumen police official site in the form of instagram, facebook, twitter and also official sites such as the police public relations div on instagram to take messages in the form of pictures and videos. in march 2018 there was an anti hoax declaration made by kebumen police. submission of anti-hoax in the form of anti-hoax declaration video so that it was followed by all people in kebumen. this was used by bhabinkamtibmas as a momentum to convey anti-hoax messages to the residents of the fostered villages. the second factor, coordination with officials can be interpreted by every extension activity carried out in the knowledge of local officials or with local officials. based on research findings that bhabinkamtibmas still rarely coordinates with local officials so that many activities that should be carried out counseling but bhabinkamtibmas does not utilize these activities for extension activities to the community. the third factor, knowledge of hoaxes is related to media literacy, the legal basis of hoaxes and the definition of hoax itself. in general, bhabinkamtibmas is only limited to knowing that it is not easily provoked by news that is not yet clear. in this case the ability of media literacy and legal knowledge about the spread of hoaxes has not been conveyed only in the form of appeals to the dangers of hoaxes. the fourth factor, in arranging the activity organizing team, the kebumen police bhabinkamtibmas has not implemented one bhabinkamtibmas program in one village. this is due to the lack of kebumen police personnel and there are still bhabinkamtibmas who have a place to live far from their fostered village without an official residence provided. the fifth factor, delivery of anti-hoax counseling can use the whatsapp (wa) short message application. all bhabinkamtibmas have wa because they are used in fast reporting of every activity that has been carried out. based on the explanation of planning in accordance with article 8 perkap number 21 of 2007 concerning binluh, it was carried out quite well but there were still shortcomings such as coordination with surrounding officials, readiness of officers who understood hoax material and placement of 1 bhabinkamtibmas 1 village which was still lacking. b. practice article 9 perkap 21 of 2007 concerning binluh explains at the stage of implementation that must be carried out by bhabinkamtibmas officers, namely: the first factor, the factor of introducing yourself has been fulfilled because based on the results of observations to the kebumen police department bhabinkamtibmas http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 403 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia when attending activities in the village and conducting counseling always introduce themselves. the second factor, based on the results of an interview with bhabinkamtibmas sruweng sector police that in conducting counseling to prevent the spread of hoaxes, bhabinkamtibmas was not equipped with sufficient knowledge about the applicable legal rules that can ensnare the perpetrators of hoax spreaders. the third factor, in delivering hoax prevention counseling, sometimes bhabinkamtibmas conveys a message in javanese, namely everyday language used in central java, especially in the kebumen region and sometimes interspersed with humor. the fourth factor, as technology develops so that conditions in the era of technological sophistication make communication facilities also develop, one of which is internet technology. the majority of kebumen people have been able to use the internet but are not equipped with good media understanding skills. it will be easily affected by hoaxes because most hoaxes circulate through the internet. the fifth factor, props used when conducting counseling through wa are wa and android mobile. whereas to conduct counseling directly can use a projector or made kamtibmas messages in the form of images or videos, so that the public can better understand than just in the form of talks. the sixth factor, the mastery of the audience is one of the capabilities that must be possessed by officers providing counseling to the community. based on observations to the bhabinkamtibmas kebumen police station, that the ability to master the audience is still lacking, the indicators are from the material delivered by bhabinkamtibmas, only a few responses from the community responded to messages from bhabinkamtibmas. this is because the bhabinkamtibmas flight hours are not many because of the busyness that bhabinkamtibmas has in kebumen police station and the minimum number of members of bhabinkamtibmas kebumen who have followed dikjur. the seventh factor, in carrying out counseling the time required is quite long and based on observations there are complaints from the community against members of bhabinkamtibmas who like not being on time with the education schedule that has been made. bhabinkamtibmas does not often do this counseling because bhabinkamtibmas is busy with concurrent work. the eighth factor, in the implementation of counseling, bhabinkamtibmas always takes the time to provide an opportunity for the audience to give questions. although in its implementation only a few people responded according to the observations made in kalirejo village. obtained based on the above that in the implementation factor can be done quite well, but there are still obstacles in terms of mastery of the material, the mastery of the audience and the efficient use of time. http://creativecommons.org/licenses/by-nc-sa/4.0/ 404 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia c. control analysis and evaluation of guidance and counseling activities carried out through four stages, the first stage is the monitoring phase, starting from the activity, during the process and after the activity with the goal objectives are achieved. every bhabinkamtibmas activity is supervised by the national police chief and the community binit work unit. if the kapolsek and kanmas binmas do not have an activity, they can directly monitor the activities of bhabinkamtibmas by participating in the activity. the second stage is the recording stage, the recording stage has been done well. the recording phase is carried out by the community service unit by collecting all the activities that have been carried out by bhabinkamtibmas. recording activities also function as accountability reports. the third step in controlling is evaluating the implementation of the bhabinkamtibmas report. if bhabinkamtibmas which is required to carry out eating activities will be given a reward by kasat binmas. the following statement kasat binmas. the fourth step, the end of the series of analysis and evaluation activities is reporting. reporting the results of analysis and evaluation by kasat binmas to the leadership is given in the form of sat binmas monthly financial accountability reports obtained from each police station report to kebumen police. bhabinkamtibmas report is made by bhabinkamtibmas itself in accordance with the activities carried out by adjusting the previous activity plan. bhabinkamtibmas reports are reported every month to the binmas community office and will be forwarded to the binmas community headquarters as a matter of accountability to the leadership. ii. indicators of successful implementation of hoax prevention counseling based on national police regulation no. 3 of 2015 to measure the results of implementing hoax prevention counseling, articles 19, 20, 21, 22 of perkap number 3 of 2015 on community policing (pemolisian masyarakat) are used as guidelines for analysis, as follows: a. indicators of success of community policing, seen from the aspect of the performance of community policing b. indicators of success of community policing, seen from the aspects of polmas and bhabinkamtibmas c. indicators of success are seen from the aspect of society d. the indicator of the success of the community policing is seen from the aspect of the relationship between the police and the community http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 405 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table 1. indicators of community policing success based on perkap number 3 of 2015 no article indicator fulfilled 1 2 3 4 1 19 increased intensity of communication between the community policemen with bhabinkamtibmas and the community; ✓ 2 19 increased relationship intimacy polmas bearer with bhabinkamtibmas with the community; 3 19 increasing public trust in the national police; 4 19 the increasing intensity of communication forum activities between the national police and the community; ✓ 5 19 increased sensitivity / awareness of the community towards kamtibmas problems in their environment; ✓ 6 19 increased information / advice from the public about the national police accountability for the implementation of polri's duties; ✓ 7 19 increased public obedience to the law; ✓ 8 19 increased public participation in providing kamtibmas information, early warning and events; ✓ 9 19 increasing the ability of the community to eliminate the root of the problem; 10 19 increasing the existence and functioning of problem solving mechanisms by the police and the community; 11 20 awareness that the community as stakeholders must be served; 12 20 increased sense of duty of duty to the community ✓ 13 20 increasing the spirit of serving and protecting the community as a professional obligation; ✓ 14 20 increased readiness and willingness to accept complaints / complaints from the public; ✓ 15 20 increased speed of responding to complaints / complaints / public reports; ✓ 16 20 increased speed approaching the scene; ✓ 17 20 increased readiness to provide assistance that is needed by the community; ✓ 18 20 increased ability to solve problems, conflicts / disputes between citizens; http://creativecommons.org/licenses/by-nc-sa/4.0/ 406 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia no article indicator fulfilled 1 2 3 4 19 20 increased intensity of official visits to residents ✓ 20 21 polmas and bhabinkamtibmas members are easily contacted by the community; ✓ 21 21 complaints / report posts / counters are easy to find by the public; 22 21 the complaint mechanism is easy, fast and straightforward; ✓ 23 21 response / response to complaints quickly / immediately obtained by the community; 24 21 increasing public trust in the national police; 25 21 increasing the ability of fkpm to find, identify the root of the problem, and solve it; 26 21 increasing community independence in overcoming problems in their environment; 27 21 reduced community dependence on the national police 28 21 increased community support in providing information and thoughts. ✓ 29 22 increased communication intensity polmas and bhabinkamtibmas with the community; ✓ 30 22 increasing intensity of fkpm activities at the police and community partnership center or other places; 31 22 the increasing intensity of cooperative activities between community policing and bhabinkamtibmas and the community ✓ 32 22 increased openness in provide information; ✓ 33 22 increased deep togetherness problem solving; and 34 22 increased intensity of cooperation and participation of stakeholders. ✓ source: perkap number 3 of 2015, edited by author based on the data on table 1, it can be seen that the implementation of counseling by bhabinkamtibmas in preventing the spread of hoaxes in order to create a safe and peaceful election has not been optimal in article number 3 of 2015 because there are still 14 indicators from total 34 that have not been met. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 407 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia iii. implementation of counseling based on campbell’s performance theory to bring up a good implementation of counseling, the author will bridge the discussion by using the theory of performance from campbell in jex and britt (2008: 99). mastery of tasks as conveyed by campbell in his performance theory, there are 8 (eight) main components that must be owned by every officer in carrying out his work. the eight components of the performance include observable behaviors carried out by individuals in the work of officers who are relevant to the goals of the organization. performance or often referred to as performance is the capital of the police organization that must be owned by all members, including bhabinkamtibmas. a. job specific task proficiency is the extent to which an individual can do the main tasks of his job. b. non-job specific task proficiency is the degree to which the individual does a number of specific tasks. c. written-oral communication task is the extent to which individual skills in writing and communicating. d. demonstrating effort is the extent to which individuals show extra effort to carry out their tasks consistently. e. maintaining personal discipline is an individual's effort not to do negative things at work. f. facilitating peer and team performance. g. supervision is the ability to influence colleagues or subordinates to improve performance through interpersonal interactions. h. management administration table 2. conclusions counseling based on performance theory the implementation of counseling by bhabinkamtibmas in preventing the spread of hoax was analyzed according to the binluh management concept based on articles 8, 9, 10, and 11 of police chief regulation number 21 of 2007 as well as articles 19, 20, 21, and 22 of police chief regulation number 3 of 2015 there were still deficiencies, namely the absence of the readiness of bhabinkamtibmas officers in no indicator not fulfilled fulfilled 1 job specific task proficiency ✓ 2 non-job specific task proficiency ✓ 3 written-oral communication task ✓ 4 demonstrating effort ✓ 5 maintaining personal discipline ✓ 6 facilitating peer and team performance ✓ 7 supervision ✓ 8 management administration ✓ http://creativecommons.org/licenses/by-nc-sa/4.0/ 408 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conducting counseling related to the spread of hoaxes before the election, is not yet optimal in controlling the audience, and the lack of coordination of bhabinkamtibmas with stakeholders, and figures resulting in the community being less able to analyze the spread of hoax news ahead of the election. the implementation of counseling by bhabinkamtibmas is closely related to the task of partnership and problem solving. so that the task of counseling bhabinkamtibmas is more optimal then it is discussed based on campbell's performance theory. based on campbell's performance component, it was found that members of bhabinkamtibmas were still not fulfilled in terms of job specific task proficiency, written-oral communication task, and demonstrating effort. factors that influence extension by bhabinkamtibmas according to soekanto (2014: 7). law enforcement is not merely the implementation of legislation. despite the reality in indonesia the tendency is this, so that the notion of law enforcement is so popular. in addition, there is a strong tendency to interpret law enforcement as implementing judges' decisions. it should be noted, however, that these rather narrow opinions have weaknesses. if the implementation of the law or the judges' decisions in fact disturbs peace in the association of life. in fact, the law upheld in indonesia is still widely violated, especially the rise of hoaxes circulating at kebumen police station. based on this soekanto (2014: 8) argues that the main problem of law enforcement lies in the factors that influence it. these factors are neutral, so they have positive and negative impacts. these factors are: a. the legal factor itself b. law enforcement factors, namely those who form and apply the law c. factors of facilities or facilities that support law enforcement d. community factors, namely the environment in which the law applies or is applied e. cultural factors, namely as the work, creation and taste based on human initiative in the association of life the following will be analyzed factors of law enforcement in counseling against the prevention of the spread of hoax by bhabikamtibas at kebumen police station. i. legal factor in this study, what is meant by legal factors to ensnare hoaxes is to use article 28 paragraph 1 of the ite law, articles 14 and 15 of law number 1 of 1946 of the criminal code. the explanation will be described one by one as follows: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 409 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia article 28 paragraph 1 of the ite law has not been able to formulate precisely the meaning of hoaxes and it is difficult to capture hoaxes with that article. the reason is that the element "that causes consumer harm" is an element that has material offenses. this means that consumer losses in electronic transactions are prohibited from intentionally and without the right to spread false and misleading news, so there must be material losses such as online fraud that results in financial losses. in the three cases of hoaxes that occurred in kebumen police station although not reported to the level of investigation but based on the news and the results of the interview. that the three hoax cases were both terrorist dpo, 8.2 sr quake and tsunami, and video about fish flooding in wadas lintang kebumen reservoir, not a single case of hoaxes can be snared with this article. explanation of article 14 paragraph 2 of law number 1 of 1946 concerning the criminal code is more relevant to ensnare the perpetrators of hoax spreaders. based on all cases of hoaxes that occurred in the kebumen police area, all elements in article 14 paragraph 2 of the criminal code of 1946 can be fulfilled as a result of false news in accordance with article 14 paragraph 2 of the criminal code of 1946 namely "causing disturbance in society" is a formal offense that can fulfilled only due to public unrest due to hoaxes circulating in the community. from the above statement it can be concluded that the handling of hoaxes by law enforcement still faces difficulties because there is no article that clearly defines this hoax problem. from the explanation above it can be seen that there is no concrete legal formulation to ensnare the perpetrators of hoax spreaders. this will result in inhibition of counseling conducted related to hoax prevention because bhabinkamtibmas cannot inform the public about the effects of jerah to people who do the hoax besides there is no training to bhabinkamtibmas related to hoax knowledge. this is very worrying because the kebumen people generally do not have a high level of education so that knowledge about hoaxes is still lacking and prone to kebumen people easily believe in hoax news. hoax is mostly done through social media, so that in the ite law there must be an update to the legal formulation for hoaxes. ii. law enforcement factor human resources have an important influence in supporting the success of an effort to prevent the spread of hoaxes. to provide a quality counseling requires skilled human resources, able to communicate well, fully understand that in this context, especially about preventing the spread of hoaxes, and being able to master the audience. personnel factor is one of the factors that influence the delivery of hoax prevention messages. analysis of the quantity and quality factors of personnel. the quantity of personnel is the strength or the real number of bhabinkamtibmas kebumen police personnel, while the quality of personnel is the ability possessed by each bhabinkamtibmas member in carrying out counseling in preventing the spread of hoaxes. http://creativecommons.org/licenses/by-nc-sa/4.0/ 410 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia judging from the total number of bhabinkamtibmas as a whole, there are 95 members, that number is still far from the number of villages and villages in kebumen police station, which are 11 villages and 449 villages. this is why the 1 village 1 bhabinkamtibmas program is not yet running, there are still many bhabinkamtibmas that have more than one target village. the next personnel issue is about the quality of personnel, especially bhabinkamtibmas at kebumen police station. it can be seen from bhabinkamtibmas general education that there are 26 personnel who have obtained a bachelor's degree (s1) while there are still 69 personnel who have only graduated from high school. this indicates that members are not interested in improving the quality of their education. another factor is also due to the ability of bhabinkamtibmas to use information and communication technology and the lack of multimedia capabilities possessed by bhabinkamtibmas. this is evidenced by the lack of counseling through the wa application that uses picture or video messages. iii. law enforcement facilities factor supporting facilities or facilities include budget support, facilities and infrastructure as well as the methods used. budget support is a factor that plays an important role in the implementation of a police activity. an activity will run well if the needs can be met by the available budget. even though the budget is still lacking, according to kasat binmas this does not matter because bhabinkamtibmas also has the support of the surrounding community in carrying out its extension work. then the facility and infrastructure factor in counseling, bhabinkamtibas does not fully have the equipment that must be owned by a bhabinkamtibmas in carrying out its duties, in accordance with article 30 of the national police chief regulation number 3 of 2015 iv. community factor in implementing counseling by bhabinkamtibmas to prevent hoaxes must know the intended target. in this study the target is society because of factors within the community that will affect the implementation of counseling. people prefer to make a decision that minimizes their cognitive effort and maximizes confidence (chen et al., 1999). dismissing an issue without serious consideration can be a result of reasoning to avoid wasting cognitive effort and minimizing cognitive dissonance. past research argues that individuals process new information when they have a minimal level of resources to be interested in, such as knowledge (petty and cacioppo, 1986), attitude (krishna, 2017), and ability (chaiken, 1980). in terms of kebumen community education is still relatively low, only 2.3% of the people who have obtained a bachelor's degree (s1). this can result in low media literacy capabilities and can easily be provoked and help spread hoaxes. then the lack of knowledge of the kebumen community about hoaxes, so prone to become victims of hoax news. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 411 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia low level of education is not really a problem because the willingness to know about hoaxes is quite high. based on the author's observations during the fgd activities during the study, it was seen that kebumen people who were fgd participants seemed very enthusiastic about the hoax material presented by the speakers, this was evident from the many fgd participants who wanted to ask questions. therefore, community enthusiasm can be a supporting factor in the counseling of bhabinkamtibmas in preventing the spread of hoaxes at kebumen police station. v. cultural factor the culture that exists in a community sphere is very influential with the law enforcement applied in that society. the social conditions in the kebumen police station greatly influenced the spread of hoaxes in the kebumen region. in the kebumen region, the use of mobile phones is evenly distributed in all circles plus a low level of education further increases the likelihood of spreading hoaxes in kebumen plus the indonesian culture that is easy to believe in 'he said'. the factors that influence the implementation of counseling by bhabinkamtibmas in preventing the spread of hoax are analyzed using law enforcement theory, with the results of the analysis as follows: supporting factors are legal factors, facilities/community factors, and community factors, as follows article 28 paragraph 1 of ite law and article 14, 15 law number 1 of 1946 became the basis in ensnaring perpetrators of hoax spreaders, budget and facilities support, as well as public enthusiasm to understand about hoaxes. however, there are deficiencies in defining the effect of hoaxes on legislation which makes it difficult for law enforcers to ensnare hoaxers, the number of bhabinkamtibmas which is still lacking so that the bhabinkamtibmas program has not been fulfilled, the lack of bhabinkamtibmas knowledge about hoaxes, and the consumptive culture of kebumen and easy to believe in the culture 'he said'. therefore, based on law enforcement theory, the inhibiting factors are legal factors (legal formulation), law enforcement factors and cultural factors conclusion the results of the study found that there have been three cases of hoaxes in the kebumen police area. the implementation of counseling by bhabinkamtibmas in preventing the spread of hoaxes was not optimal because there were still shortages at each stage of the activity and there were still deficiencies in terms of bhabinkamtibmas officers' knowledge about hoaxes, the ability to establish partnerships, and communication skills. the inhibiting factors are legal factors (legal formulation), law enforcement factors, and cultural factors, while supporting factors are legal factors (foundation), facility / facility factors, and community factors. based on the results of the study, the authors suggest firmness to ensnare the hoax case, http://creativecommons.org/licenses/by-nc-sa/4.0/ 412 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia coordinate with the cyber patrol task force, prioritize counseling to the grassroots, create a wa group containing all stakeholders, public lectures on hoaxes, mandatory base on binmas, rejuvenation of bhabinkamtibmas, appoint tomas as the 'representative' 'bhabinkamtibmas, increasing innovation in creative activities, optimizing sarpras, and holding a da'i kamtibmas competition. references apjii. 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2022 267 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 3, july 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: january 11, 2022 revised: march 22, 2022 accepted: may 13, 2022 available online since: july 31, 2022 how to cite: jhody, puguh setyawan. “the discourse of granting the rights of prisoners in indonesia: the legal political issue and future challenges”. journal of law and legal reform 3, no. 3 (2022): 267-294. https://doi.org/10.15294/jllr.v3i3.55979. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article the discourse of granting the rights of prisoners in indonesia: the legal political issue and future challenges puguh setyawan jhody1 1 bapas kelas i semarang, central java, indonesia  puguhesjhody54@gmail.com abstract sentencing is a process of the criminal justice system which is seen as giving punishment to those who commit crimes or criminal acts. a convict who is serving a sentence in a prison is called a prisoner who must be given his rights in the context of the development process according to the correctional system. these rights are regulated by law no. 12 of 1995 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i3.55979 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 http://orcid.org/0000-0002-3954-7893 268 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia concerning corrections which has been delegated through government regulation no. 99 of 2012. until now, the regulation still invites controversy because its content is related to the rules for remission and parole for special prisoners. the author will examine the purpose of making government regulation no. 99 of 2012, where the study of legal politics. this study uses a qualitative legal research approach with sociological juridical research. the results of this study are when viewed from three legal politics criteria, namely: first, related to state policies regarding the application of law as a way to achieve state goals, namely protecting the entire indonesian nation and all indonesian bloodshed, as well as the goals of the correctional system. second, related to the background of law enforcement because the granting of rights to prisoners of extraordinary crimes needs to be tightened to fulfill the community's sense of justice. third, related to law enforcement that has been carried out has been going well because the tightening of the granting of these rights resulted in not all prisoners getting remission and parole. keywords: legal politics, prisoners' rights, pp 99 of 2012, remission, parole introduction criminal law works as an institution that regulates society and has the task of determining the boundary line between actions that are qualified in accordance with criminal law and actions that are disqualified against criminal law. against criminal acts against the law given criminal threats and therefore based on the authority of state law enforcement agencies can be filed lawsuits and decisions according to certain ways in accordance with the applicable criminal threats. a person who is sentenced to a prison sentence is a prisoner.1 in the context of law enforcement in indonesia, the most frequently used legal means to impose sanctions on violations of rights and 1 bambang poernomo, pelaksaan pidana penjara dengan sistem pemasyarakatan (yogyakarta: liberty yogyakarta, 2014). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 269 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia obligations is imprisonment. this criminal sanction is considered capable of providing a deterrent effect for lawbreakers so that they do not repeat the act, and serves as a regulator of action in society as well as a tool for society to create order and prosperity.2 prior to the crime of loss of liberty in ancient times, it was only known as capital punishment, corporal punishment, exile, forced labor, convicts waiting to serve their sentence in the form of capital punishment or corporal punishment, convicts sentenced to forced labor in the shade at night were put into the priest's monastery which is intended to punish monks and nuns, but all of them are not prisons in the sense that it is intended as a place for the execution of the crime of loss of liberty.3 the imposition of a criminal or sentencing is a process of the criminal justice system which is seen as giving punishment to those who commit crimes or criminal acts based on the provisions of laws and regulations. the end of the punishment mostly resulted in imprisonment in correctional institutions (lapas) because indonesia has very few alternative punishments. the prison sentence can be said to give an evil stamp (stigma) that will carry over even though they no longer commit crimes.4 a convict who is serving a sentence in prison is referred to as a prisoner who must require special treatment in the context of the development process according to the correctional system. the penitentiary system itself has replaced the prison system since 1964 because the prison system is considered to emphasize more on revenge and imprisonment without looking at coaching so that it is not in accordance with civilization and pancasila values. the penitentiary system has also changed the paradigm that prisons, which were previously places of torture, have turned into places of training for inmates to realize their mistakes and not to repeat crimes so that they become fully human. 2 diasti rizki ramadhani, “implementasi pemenuhan hak mendapatkan makanan yang layak bagi narapidana,” justitia : jurnal ilmu hukum dan humaniora 7, no. 1 (2020): 143, https://core.ac.uk/download/pdf/288190796.pdf. 3 s sukarno, “implementasi syarat tambahan hak remisi pelaku tindak pidana korupsi melalui pp no. 99 tahun 2012 (studi pada kantor wilayah kementerian hukum dan ham …,” gema keadilan 6, no. 99 (2019): 137–69, https://ejournal2.undip.ac.id/index.php/gk/article/view/5625. 4 bambang sunggono dan aries harianto, bantuan hukum dan hak asasi manusia (bandung: mandar maju, 1994). http://creativecommons.org/licenses/by-nc-sa/4.0/ 270 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia these penitentiary system reform movements continue to develop, as a result of the humanitarian movement which considers prisoners as complete human beings (subjects) and must be socialized and also supported by scientific discoveries, both social sciences and empirical natural sciences.5 the form of reform of the prison sentence implementation system has been determined by the government through law no. 12 of 1995 concerning corrections. in the penitentiary system, prisoners are given their rights as a manifestation of the implementation of human rights. article 1 no. (2) of law no. 12 of 1995 concerning corrections states that: "the correctional system is an arrangement regarding the direction and boundaries as well as the method of fostering correctional inmates based on pancasila which is carried out in an integrated manner between the coaches, those who are fostered, and the community to improve the quality of correctional inmates so that they are aware of their mistakes, improve themselves, and do not repeat criminal acts so that they can accepted back by the community, can play an active role in development, and can live normally as a good and responsible citizen.” the purpose of the correctional system is social reintegration, namely the restoration of the unity of the relationship between life, life and livelihood of the correctional inmates. considering at the definition of the penitentiary system, it can be seen that this article requires criminals to be protected, prisoners to be fostered with a family pattern. the family approach requires that the attitude of the officer as a parent is expected to influence the behavior of the person being fostered. in addition, the attitude of the outside community participates in the coaching program. as for community participation, especially to receive convicts. community participation is a link to fill the correctional system. the utilization of the familial approach is a basic problem to improve outcomes for the development of convicts in indonesia in order to reduce the influence of the prisonization culture in correctional 5 muladi, lembaga pidana bersyarat (bandung: alumni, 1992). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 271 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia institutions. thus, detaining prisoners no longer take advantage of the influence of punishment, let alone the cruelty of officers. in this case, punishment is not an act of retaliation, this is due to the correctional principle which says imposing a criminal is not an act of revenge from the state and repentance cannot be achieved by torture but with guidance.6 prisoners have rights that are protected and guaranteed as regulated in article 14 of law no. 12 of 1995 concerning corrections, including the right to receive a reduced sentence (remission) and get parole. remission is a legal means in the form of "rights" granted by law to prisoners after fulfilling certain conditions. it can be said that remission is a right that is eagerly awaited by all prisoners in indonesia, because by getting it, their criminal period will be reduced.7 meanwhile, parole is a coaching program to integrate prisoners into community life after fulfilling predetermined requirements. this term in the criminal code (kuhp) is known as voorwaardelijke invrijheidstelling, in the translation of the criminal code from badan pembinaan hukum nasional (bphn) it uses the term conditional release. 8 the rules regarding the implementation of the rights of prisoners have been delegated by law no. 12 of 1995 concerning corrections through government regulation no. 32 of 1999 concerning terms and procedures for the implementation of the rights of prisoners amended by government regulation no. 28 of 2006, as well as the second amendment through a government regulation no. 99 of 2012. until now, government regulation no. 99 of 2012 still invites public controversy because of its content that intersects with the interests of the political elite, especially those related to the rules for remission and parole for corruption convicts. this government regulation has several times been reviewed materially to the supreme court (ma) and judicial review 6 wirna rosmely ab. ghafur, philips a. kana, “efektivitas peraturan pemerintah nomor 99 tahun 2012 dalam pemberian remisi kepada narapidana tindak pidana khusus di lembaga pemasyarakatan kelas iia padang,” unes journal of swara justisia 1, no. 4 (2018): 386. 7 diyan isnaeni selvi anggraini, abdul wahid, “pelaksanaan sistem pemberian remisi bagi narapidana sesuai peraturan pemerintah nomor 99 tahun 2012 tentang perubahan kedua atas peraturan pemerintah nomor 32 tahun 1999 tentang syarat dan tata cara pelaksanaan hak warga binaan pemasyarakatan,” dinamika, jurnal ilmiah hukum 27, no. 5 (2021): 655. 8 farly mervy wongkar, “pembebasan bersyarat menurut undang-undang nomor 12 tahun 1995 tentang pemasyarakatan,” lex et societatis vol. vii/n, no. 3 (2019): 18. http://creativecommons.org/licenses/by-nc-sa/4.0/ 272 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia to the constitutional court (mk) related to article 14 of law no. 12 of 1995 concerning corrections whose main purpose is to cancel government regulation no. 99 of 2012 however, the two judicial institutions have never granted it until october 28, 2021, the supreme court (ma) stated that several articles in government regulation no. 99 of 2012 contradicted law no. 12 of 1995 concerning corrections which of course brought many changes related to the granting of prisoners' rights in prison. from the description above, the author will examine the purpose of making government regulation no. 99 of 2012, where the study of the purpose of making laws and regulations will not be separated from the study of legal politics because the study of legal politics contains legal policies made by the state to realize the goals of the state.9 the legal politics studied in this paper is related to the legal politics of regulations regarding the granting of prisoners' rights in indonesia, namely through government regulation no. 99 of 2012. in addition, it will also examine the obstacles to implementing the government regulation. method this research uses legal research with a qualitative legal research approach with sociological juridical research, which means that legal research is studied and researched as a law in action study, because it studies and examines the reciprocal relationship between law and other social institutions. the author uses the type of juridical-sociological research because of this approach the data needed are in the form of information distributions that do not need to be quantified. the distribution of the information in question is that obtained from the results of observations and interviews with informants, so the writer needs to be able to know the results. the type of juridical research is the author analyzes the legal politics of granting prisoners' rights in the perspective of government regulation no. 99 of 2012 concerning terms and procedures for 9 moh. mahfud md, politik hukum di indonesia, 5th ed. (jakarta: rajagrafindo persada, 2009). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 273 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia implementing the rights of correctional inmates. the type of sociological research the author analyzes is the social facts that exist in society, namely regarding the granting of prisoners' rights in the perspective of government regulation no. 99 of 2012 concerning terms and procedures for the implementation of the rights of correctional inmates and the obstacles to their implementation. result & discussion i. legal politics of granting the rights of prisoners in the perspective of government regulation no. 99 of 2012 the study of legal politics is one of the studies that is most often discussed by legal scholars, especially for legal scholars who want to critically and comprehensively know a certain purpose of legislation through an interdisciplinary approach. agreeing on the use of the term legal politics means agreeing that law cannot be separated from political aspects, even ideological, social, economic and so on.10 law is understood as a product of political power and therefore almost every legal product produced by a certain political power, the instrumental function of law as a means of power is more dominant when compared to other functions.11 in other words, law does not arise because of the law itself but because political power has a purpose or interest that is stated either covertly or openly which can only be guaranteed by law. to date, many legal scholars have produced works that are very important in understanding legal politics. among his most important works is mahfud md's dissertation on the development of legal politics, studies on the effect of political configuration on the character of legal 10 syahriza alkohir anggoro, “politik hukum: mencari sejumlah penjelasan,” jurnal cakrawala hukum 10, no. 1 (2019): 78, https://doi.org/10.26905/idjch.v10i1.2871. 11 md, politik hukum di indonesia. http://creativecommons.org/licenses/by-nc-sa/4.0/ 274 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia products in indonesia in 1993 which was defended at universitas gajah mada.12 this work discusses how the discipline of political science can help us understand the influence of political configuration on the character of legal products in indonesia, both in the formation of laws and in their implementation. mahfud md came to the conclusion that law cannot be separated from the political aspect, because a political configuration or certain ideas will be crystallized in legal products. the emergence of legal politics as an interdisciplinary field of discussion in its development has triggered many works of contemporary legal politics that discuss the theoretical and historical scope of legal politics.13 before going further into discussing legal politics, of course, it must first be explained what the meaning of legal politics is. in general, legal politics is interpreted as a political policy that determines what legal regulations should apply in regulating various matters of social and state life.14 according to sudarto, legal politics is a state policy through authorized bodies to establish the desired regulations that are expected to be used to express what is contained in society and to achieve what is aspired to.15 if this is the case, then the concept of legal politics has a very deep meaning. there are four important things that can be concluded. first, from the phrase "contained in society", of course it is quite broad in scope. this means that legal politics can cover various aspects of national and state life, for example politics, economy, social and culture. second, with regard to the phrase "stipulate the desired regulations", this is related to the ius constitutum or positive law. third, regarding the phrase “can be used to express”, it is related to ius operatum. fourth, concerning the phrase "to achieve what is aspired". in this case, legal politics is also 12 md. 13 otong rosadi dan andi desmon, studi politik hukum suatu optik ilmu hukum (yogyakarta: tafa media, 2013). 14 m. solly lubis, politik dan hukum di era reformasi (bandung: cv. mandar maju, 2000). 15 sudarto, hukum pidana dan perkembangan masyarakat: kajian terhadap pembaharuan hukum pidana (bandung: sinar baru, 1983). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 275 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia correlated with the ius constituendum. strictly speaking, the scope of legal politics in sudarto's perspective can include three things: ius constitutum, ius operatum and ius constituendum. 16 meanwhile, mahfud md17 explained that legal politics is a legal policy or official line (policy) regarding law that will be enforced either by making new laws or by replacing old laws, in order to achieve state goals. thus, legal politics is a choice of laws to be enacted as well as a choice of laws to be repealed or not enforced, all of which are intended to achieve state goals as stated in the preamble to the 1945 constitution. mahfud md's opinion above means that legal politics is one way to achieve state goals through legal policies that are formed. in addition, mahfud md18 also describes the criteria regarding legal politics which in essence are: a. state policy regarding the application of law as a way to achieve state goals b. legal background; and c. law enforcement of the law that has been enacted. these criteria are one way to identify a legal politics in the application of existing laws in indonesia. therefore, according to mahfud md, the criteria for legal politics can be used to identify the legal politics of granting prisoners' rights, in this case government regulation no. 99 of 2012 as follows: a. state policy regarding the application of law as a way to achieve state goals the goal of a country is actually the ideals of a country that the country wants to realize through the procedures or systematic legal instruments that exist in that country. according to roger soltau, the aim of the state is to enable its people to develop and carry out their 16 hariman satria, “politik hukum tindak pidana politik uang dalam pemilihan umum di indonesia,” integritas : jurnal anti korupsi 5, no. 1 (2019): 1–14, https://jurnal.kpk.go.id/index.php/integritas/article/view/342. 17 md, politik hukum di indonesia. 18 md. http://creativecommons.org/licenses/by-nc-sa/4.0/ 276 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia creativity as freely as possible. meanwhile, according to harold j. laski, the goal of the state is to create conditions in which the people can achieve the maximum fulfillment of their wishes.19 emmanuel kant argues that the purpose of the state is to establish and maintain law, which guarantees the legal position of individuals in society and also means that every citizen has the same legal position and should not be treated arbitrarily by the authorities. in pancasila society, based on the 1945 constitution, it is determined that every indonesian citizen has the same position before the law and the government.20 the first criterion to identify the legal politics of granting prisoners' rights is to look at state policies in enforcing the law as a way to achieve state goals, especially the goals of the penitentiary system in indonesia. the enactment of the law in question is regarding the rules regarding the terms and procedures for the implementation of the rights of the correctional inmates. if you look at history, in 1999, government regulation no. 32 of 1999 was issued regarding the terms and procedures for the implementation of the rights of correctional inmates as the implementing provisions of article 14 paragraph (2), article 22 paragraph (2), article 29 paragraph (2), and article 36 paragraph (2) of law no. 12 of 1995 concerning corrections. in this rule, the subject of remission and parole as one of the rights of prisoners is given to all prisoners who meet the requirements regardless of the case/crime committed by the inmate. the conditions for remission only include good behavior while serving a sentence. meanwhile, for parole, the conditions are only if he has served a sentence of at least 2/3 (two 19 a a thohari, “konseptualisasi negara hukum dan demokrasi; upaya menuju negara yang dicita-citakan,” lex jurnalica 3, no. 1 (2005): 44, https://digilib.esaunggul.ac.id/public/ueu-journal-4660-a_ahsin_thohari.pdf. 20 mia kusuma fitriana, “peranan politik hukum dalam pembentukan peraturan perundang-undangan di indonesia sebagai sarana mewujudkan tujuan negara,” jurnal legislasi indonesia 12, no. 02 (2015): 3. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 277 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia thirds) of his criminal period, provided that 2/3 (two thirds) of the criminal period is not less than 9 (nine) months. after several years of enactment of the law through government regulation no. 32 of 1999, there was an urge to review the granting of remissions and parole in order to adapt to legal developments and a sense of justice in society, especially in relation to prisoners who commit crimes that result in significant losses. this is also stated in the considerations considering government regulation no. 28 of 2006. the government responded to this by issuing government regulation no. 28 of 2006 concerning amendments to government regulation no. 32 of 1999 which contained additional requirements for obtaining remission, namely good behavior; and has served a criminal term of more than 6 (six) months. furthermore, for convicts who are convicted of committing criminal acts of terrorism, narcotics and psychotropic substances, corruption, crimes against state security and serious human rights crimes, and other transnational organized crimes, the condition for getting remission is that they must have served 1/3 (one third) of the term criminal first. meanwhile, regarding parole, the additional conditions are as follows: 1) has served a criminal period of at least 2/3 (two thirds) provided that 2/3 (two thirds) of the criminal period is not less than 9 (nine) months; and 2) good behavior while serving a criminal period of at least the last 9 (nine) months calculated before the 2/3 (two-thirds) of the criminal period. in addition, for convicts who are convicted of committing crimes of terrorism, narcotics and psychotropic substances, corruption, crimes against state security and serious human rights crimes, and other transnational organized crimes in addition to having to fulfill the above conditions, additional conditions are given, namely having received consideration from the director general of corrections in the form of http://creativecommons.org/licenses/by-nc-sa/4.0/ 278 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia considerations of security, public order, and a sense of community justice. on 12 november 2012 the government again issued government regulation no. 99 of 2012 as the second amendment to government regulation no. 32 of 1999. this government regulation further tightens the provision of remission, assimilation, and parole for prisoners. regarding the remission of the tightening in the form of providing additional conditions for prisoners who are convicted of committing a crime of terrorism, narcotics and narcotic precursors who are sentenced to a minimum sentence of 5 (five) years, psychotropic substances, corruption, crimes against state security, serious human rights crimes, and other crimes. other organized transnationals to obtain remission, namely: 1) willing to cooperate with law enforcement to help dismantle the criminal case he did; 2) corruption convicts have paid in full the fines and replacement money; and 3) for terrorist convicts, they have participated in the deradicalization program and pledged allegiance to the unitary state of the republic of indonesia (nkri). meanwhile, for parole there are additional conditions, namely: 1) willing to cooperate with law enforcement to help dismantle the criminal case he did; 2) corruption convicts have paid in full the fines and replacement money; and 3) for terrorist convicts, they have participated in the deradicalization program and pledged allegiance to the unitary state of the republic of indonesia. the deradicalization program in indonesia carried out by the bnpt is understood by various parties such as the police, correctional institutions, the ministry of religion, the ministry of people's welfare, mass organizations, and so on such as universities, both public and private. according to irfan idris, director of deradicalization at bnpt, the design of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 279 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia deradicalization in indonesia has four approaches, namely: reeducation, rehabilitation, resocialization, and reintegration.21 4) undergo assimilation of at least 1/2 (one half) of the remaining criminal period that must be served. on october 28, 2021, the supreme court (ma) through its decision no. 28 p/hum/2021 stated that several articles of government regulation no. 99 of 2012 were contrary to law no. 12 of 1995 concerning corrections. these articles include article 34a paragraph (1) letter a, article 34a paragraph (3), article 43a paragraph (1) letter a, and article 43a paragraph (3). these articles stipulate the conditions for being willing to cooperate with law enforcement to help dismantle cases of criminal acts committed (justice collaborator), so that in proposing remission and parole, justice collaborator is no longer needed. the considerations in the decision of the supreme court include: 1) the prison regime has been abandoned for the rehabilitation and social reintegration regime; 2) correctional inmates are not objects, but also subjects; 3) the philosophy of criminal implementation in the form of coaching; 4) fulfillment of the rights of prisoners is granted without exception (equality before the law); 5) fulfillment of the rights of prisoners is not discriminatory; 6) additional conditions for fulfilling rights are constructed as rewards; 7) fulfillment of the rights of correctional inmates is the full authority of the directorate general of corrections (ditjen pas); 8) assessment of correctional inmates in the context of fulfilling rights begins when the person concerned holds the status of correctional inmates 21 mochamad nurhuda febriyansah, lailatul khodriah, and raka kusuma, “upaya deradikalisasi narapidana terorisme di lembaga pemasyarakatan ( lapas ) kedung pane semarang,” jurnal unnes vol.3, no. 1 (2017): 91–108. http://creativecommons.org/licenses/by-nc-sa/4.0/ 280 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in the end, government regulation no. 99 of 2012 is one of the state's legal policies, in this case the government in terms of granting prisoners' rights. this legal policy is of course a path towards the state's goal of protecting the entire indonesian nation and all of indonesia's bloodshed.22 the concrete form of protecting all indonesian people is basically the protection of the human rights of indonesian people, either collectively or individually. this objective must be implemented by government regulation no. 99 of 2012. therefore, the implementation of the said government regulation must be carried out properly, correctly, and appropriately, and the regulation should be improved and perfected so that the objectives of the correctional system can also be achieved. b. background law enforcement in the form of government regulation no. 99 of 2012 the second criterion to identify the legal politics of granting prisoners' rights is to know the background of the making of the legislation. the emergence of this government regulation is not without reason, referring to the consideration that government regulation no. 99 of 2012 has three reasons why this government regulation was issued. first, criminal acts of terrorism, narcotics and narcotics precursors, psychotropic substances, corruption, crimes against state security and serious human rights crimes, as well as other transnational organized crimes are extraordinary crimes because they cause great losses to the state or society or many victims or victims, cause panic, anxiety, or extraordinary fear in the community. 22 yusup anchori, “perlindungan hukum korban tindak pidana yang dilakukan oleh orang dengan gangguan jiwa (odgj) dihubungkan dengan tujuan negara hukum dalam sistem pemidanaan di indonesia,” jurnal syntax admiration 1, no. 8 (2020): 1183, https://jurnalsyntaxadmiration.com/index.php/jurnal/article/download/143/237/923. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 281 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia second, granting remission, assimilation, and parole for perpetrators of criminal acts of terrorism, narcotics and narcotic precursors, psychotropic substances, corruption, crimes against state security and serious human rights crimes, as well as other transnational organized crimes need to be tightened with requirements and procedures to fulfill sense of social justice. especially in dealing with corruption, in order to support increasingly sophisticated corruption eradication efforts, the need for perpetrator witnesses who work together to reveal larger corruption cases is a very important factor that encourages the government to create a system that aims to support the eradication of corruption. 23 third, the provisions regarding the terms and procedures for granting remission, assimilation, and parole as regulated in government regulation no. 32 of 1999 as amended by government regulation no. 28 of 2006 do not fully reflect the interests of security, public order, and a sense of justice felt by the community. society today. vice minister of law and human rights of the republic of indonesia (wamenkumham ri) at that time denny indrayana said that this government regulation was issued by the government to emphasize the agenda for eradicating corruption, drugs, and terrorism so that its message could be emphasized as a deterrent.24 c. law enforcement of enacted laws enforcement of law in the context of realizing the concept of a rule of law does not only rely on the substance of the law but also the application of the law (law enforcement).25 however, the phenomenon 23 lushiana primasari aggi rafsanjani akbar, “urgensi pengetatan remisi narapidana korupsi berdasarkan peraturan pemerintah nomor 99 tahun 2012 tentang syarat dan tata cara pelaksanaan hak warga binaan pemasyarakatan,” jurnal recidive 5, no. 3 (2016): 429, https://jurnal.uns.ac.id/recidive/article/download/47787/29736. 24 detik.com, “pp 99 dibuat untuk pemberantasan korupsi, narkoba, dan terorisme,” 2013, https://news.detik.com/berita/d-2300929/denny-pp-99-dibuat-untukpemberantasan-korupsi-narkoba-dan-terorisme. 25 sudjana, “penegakan hukum karya cipta perspektif teori fungsionalisme struktural,” kanun jurnal ilmu hukum 22, no. 1 (2020): 90. http://creativecommons.org/licenses/by-nc-sa/4.0/ 282 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that occurs is often inconsistent law enforcement has a negative impact on the law itself. whereas law enforcement is a system that has several indicators which are a unity and cannot be separated so that the law can be applied effectively, namely the achievement of law in the form of certainty, justice, and expediency. in that context, law enforcement reform is the answer to how the law in indonesia is organized within the framework of establishing the aspired rule of law.26 law enforcement is closely related to the third criterion to identify the legal politics of granting prisoners' rights, namely by looking at the implementation of the law that has been enacted, namely government regulation no. 99 of 2012. satjipto raharjo27 argues that law enforcement is a process to realize the wishes of the law so that they can become a reality. the legal desires here are the thoughts of the legislators who are formulated in a legal regulation. the formulation of the thoughts of lawmakers as outlined in legal regulations will also determine how law enforcement is carried out. satjipto rahardjo also argued that law enforcement in a country, ideally seen as an interactive process, the results of law enforcement cannot be accepted as the work of law enforcement themselves, but rather a result of the work of a process of mutual influence among the various components involved in the process.28 the implementation of law enforcement from government regulation no. 99 of 2012 can be said to be realized if the objectives of the government regulation have been achieved, namely: first, to provide tightening on the provision of remission, assimilation, and parole for special prisoners as stated in the government regulation. second, emphasize the message that the state is serious in eradicating corruption, narcotics, and terrorism. regardless of the no. of people 26 lutfil ansori, “reformasi penegakan hukum perspektif hukum progresif,” jurnal yuridis 4, no. 2 (2018): 148, https://doi.org/10.35586/.v4i2.244. 27 satjipto raharjo, penegakan hukum sebagai tinjauan sosiologis (yogyakarta: genta publishing, 2009). 28 sudjana, “penegakan hukum karya cipta perspektif teori fungsionalisme struktural.” http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 283 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia who oppose this government regulation for various reasons, among others, that this government regulation is a limitation on the rights of prisoners, and the imposition of additional burdens outside of court decisions. however, if you look at the background and purpose of the government regulation, law enforcement has been running well and maximally because the tightening of rights grants has resulted in not all convicts of corruption, drugs, and terrorism getting remission, assimilation, and parole. ii. obstacles to implementation of government regulation no. 99 of 2012 correctional institutions in indonesia are still in the public spotlight because they often experience various unresolved problems. starting from capacity, the practice of levying liars in the implementation of services for the rights of prisoners. penitentiary is the final stage of the criminal justice system, which consists of 4 (four) sub-systems, namely the police, the prosecutor's office, and the correctional institution. the penitentiary subsystem as the last sub-system of the criminal justice system has the task of carrying out guidance on convicts of criminal offenses with imprisonment.29 the implementation of coaching and granting prisoners' rights in accordance with the correctional system has encountered many steep paths and problems. starting from the problem of security and order disturbances, narcotics circulation, escape of prisoners, sexual harassment to extortion practices carried out by unscrupulous employees. especially after the enactment of government regulation no. 99 of 2012, prisons became very vulnerable to riots, say the medan class i prison (tanjung gusta prison) in 2013, which was allegedly caused by the implementation of government regulation no. 99 of 2012. minister of law and human 29 iklima salsabil dm, “jaminan ham untuk narapidana dalam kacamata sistem pemasyarakatan di indonesia,” lex scientia law review 1, no. 1 (2017): 33–40, https://journal.unnes.ac.id/sju/index.php/lslr/article/view/19480. http://creativecommons.org/licenses/by-nc-sa/4.0/ 284 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia rights the republic of indonesia (menkumham ri) at that time, amir syamsudin said that many inmates objected to the implementation of the regulation, many prisoners felt they were punished twice because of this government regulation. 30 the presence of the government no. 99 of 2012 which tightens both in terms of requirements and procedures for granting prisoners' rights such as tightening the granting of remissions and parole, where in this writing the author limits the rights of remission and parole for convicts of special crimes, as if weakens the stimulus function for well-behaved prisoners that have been running so far.31 remission is the right of every prisoner that is protected and regulated by law, without distinguishing between prisoners for general crimes and convicts for special crimes such as corruption, trafficking in persons, terrorism and so on. instead, by preventing or preventing prisoners from getting remissions or other rights that they can receive.32 in line with this, several special prisoners at the class iia ambarawa prison said that government regulation no. 99 of 2012 was discriminatory because it differentiated the rights granted to inmates. in fact, according to him, the inmates have followed the coaching program well, and the size of the granting of rights, especially the right of remission and parole, should be based on the results of the assessment of coaching in prisons. government regulation no. 99 of 2012 continues to be a hot discussion, and there are always pressures to revise the government 30 tempo.com, “4 indikasi penyebab rusuh tanjung gusta,” 2014, https://nasional.tempo.co/read/496263/4-indikasi-penyebab-rusuh-tanjung-gusta. 31 agung nugroho, “studi tentang sinkronisasi peraturan pemerintah nomor 99 tahun 2012 tentang perubahan kedua atas peraturan pemerintah nomor 32 tahun 1999 tentang syarat dan tata cara pelaksanaan hak warga binaan pemasyarakatan terhadap undang-undang nomor 12 tahun 1995 t,” dinamika hukum 11, no. 2 (2020): 24, https://ejurnal.unisri.ac.id/index.php/dinamika_hukum/article/download/6909/441 3. 32 dimas hario wibowo, “pelaksanaan pemberian remisi terhadap narapidana tindak pidana korupsi di lembaga pemasyarakatan kelas i semarang,” unnes law journal 2, no. 1 (2013): 27–35, https://doi.org/https://doi.org/10.15294/ulj.v2i1.2898. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 285 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regulation. this regulation is considered a form of discrimination for special prisoners, in addition to the increasingly overpopulation of prisons with narcotics cases, it is also considered a domino effect from the implementation of this rule. however, there are also parties who do not agree with the revision because they are worried that it will make it easier for corruption convicts to get remission or parole. as of march 1, 2022, overpopulation in prisons/detention centers throughout indonesia reached 224% with a total population of 270,321 people, while the capacity was only 132,107 people. of the no. of residents, 101,520 people are prisoners with cases of narcotics users, and as many as 82,278 are narcotics dealers and dealers. as for corruption convicts as many as 13,263 people, terrorist prisoners as many as 504 people, corruption prisoners 4,675 people, while the rest are general prisoners.33 with the overpopulation situation in the correctional institution, it will greatly affect the security conditions of the prison, because in situations like this, to breathe oxygen, they fight each other because the condition of the residential rooms is very stacked and sleep must take turns because of the dense conditions of the residential rooms. with this condition, correctional institutions in indonesia are very likely to cause disturbances in security and order.34 government regulation no. 99 of 2012 in its article formulation does not provide specificity regarding the qualifications of narcotics users, dealers, and dealers. only given qualifications for drug cases with sentences above and below five years. the qualifications of dealers and users are only separated by the articles of control in law no. 35 concerning narcotics, which are notorious for being rubbery, so that many narcotics users are qualified as dealers. so that the no. of narcotics users is significantly more than the official data released by the government. this has the impact that those who are actually narcotics users are actually 33 ditjen pemasyarakatan, “penghuni lapas,” 2022, http://sdppublik.ditjenpas.go.id/. 34 zeland muhammad barr, “implementasi tugas pengamanan dilembaga pemasyarakatan kelas iib cianjur dalam keadaan over crowded,” widya yuridika 3, no. 2 (2020): 283, https://doi.org/10.31328/wy.v3i2.1681. http://creativecommons.org/licenses/by-nc-sa/4.0/ 286 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia subject to tightening of remissions and parole by government regulation no. 99 of 2012. the rules of justice collaborator (jc) as a requirement for prisoners convicted of crimes of terrorism, narcotics and narcotics precursors who are sentenced to a minimum sentence of 5 (five) years, psychotropic substances, corruption, crimes against state security, serious human rights crimes, and other crimes. other organized transnationals to obtain remission and parole also bring their own problems. in the joint decree between the witness and victim protection agency (lpsk), the attorney general's office, the indonesian police, the corruption eradication commission (kpk) and the supreme court, the definition of a justice collaborator is a witness, who is also a perpetrator, but he is willing to cooperate with law enforcement. in order to dismantle a case related to the case.35 this justice collaborator (jc) must be stated in writing and determined by the relevant law enforcement agency. at the implementation level, most of the certificates are only managed by inmates when they are about to get remission or parole, even though the entire series of legal cases in question have been completed. in addition, the main purpose of the justice collaborator, namely as a form of cooperation with law enforcement in the context of dismantling a case will not be achieved, and the certificate as a justice collaborator is like a piece of paper for administrative requirements only. in addition to these problems, the requirements for justice collaborator status in government regulation no. 99 of 2012 were again in the spotlight when the corruption convict m. nazarudin received 49 months of remission and a leave program before being released (cmb). in this case, there is a difference of opinion between the directorate general of corrections at the ministry of law and human rights (ditjen pas 35 lilik mulyadi, “menggagas konsep dan model ideal perlindungan hukum terhadap whistleblower dan justice collaborator dalam upaya penanggulangan organized crime di indonesia masa mendatang,” jurnal hukum dan peradilan 3, no. 2 (2014): 102, https://doi.org/http://dx.doi.org/10.25216/jhp.3.2.2014.101-116. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 287 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia kemenkumham) and the corruption eradication commission (kpk). the directorate general of pas of the ministry of law and human rights said that nazaruddin had been designated as a collaborating actor (justice collaborator) by the kpk based on letter no. r-2250/55/06/2014 dated june 9, 2014 regarding a statement on behalf of muhammad nazaruddin; letter no. r.2576/55/06/2017 dated june 21, 2017, regarding the request for information in collaboration with law enforcement. while the kpk denied it had issued a letter of jc status against nazar. a certificate of cooperation for m. nazarudin because the person concerned since the investigation, prosecution and trial process has revealed the corruption case in the construction of the hambalang national sports facilities education and training center (p3son), the case for the procurement of e-ktp at the ministry of home affairs and the case with the defendant anas urbaningrum and on the basis of m. nazaruddin has paid the fine to the state treasury.36 this difference of opinion is because government regulation no. 99 of 2012 does not explicitly and in detail regulate the implementation and procedures for obtaining justice collaborators. fortunately, the article regarding the requirements regarding justice collaborator (jc) has been annulled by the supreme court through decision no. 28 p/hum/2021 dated october 28, 2021, so that in granting the rights of prisoners in prison, there is practically no longer a problem. the government in this case the ministry of law and human rights has responded to this decision by revising the derivative rules of government regulation no. 99 of 2012 namely minister of law and human rights regulation no. 7 of 2022 concerning the second amendment to the regulation of the minister of law and human rights no. 3 of 2018 concerning terms and procedures for granting remission, assimilation, 36 hukumonline.com, “melihat lagi kontroversi status justice collaborator nazaruddin,” 2020, https://www.hukumonline.com/berita/baca/lt5eead6ab465ce/kontroversi-statusjustice-collaborator-di-balik-bebasnya-nazaruddin?page=3. http://creativecommons.org/licenses/by-nc-sa/4.0/ 288 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia leave to visit family, parole, leave before release, and conditional leave. ambarawa class iia prison officer, agus wijayanto said that through this minister of law and human rights regulation no. 7 of 2022, the condition for being willing to cooperate with law enforcement to help dismantle criminal cases he committed or what is commonly called justice collaborator (jc) is no longer required in this case. granting remissions or parole for convicts, but other conditions remain in accordance with government regulation no. 99 of 2012 because only the justice collaborator (jc) article was canceled by the supreme court. furthermore, the new permenkumham also stipulates an assessment based on the convict guidance assessment system (sppn) as the basis for prisoners who are considered to have good behavior and follow good coaching. the last obstacle is that government regulation no. 99 of 2012 is not in accordance with the correctional system and conflicts with restorative (recovery) and social reintegration philosophies. it was explained earlier that the purpose of this government regulation is as a form of resistance against extraordinary crimes such as drugs, terrorism, and corruption. however, this government regulation only regulates prisons, especially prisons as criminal implementers. ideally, providing resistance to extraordinary crimes should be carried out jointly by the police, the prosecutor's office, and the court. however, in this government regulation the burden of the resistance is shifted to correctional facilities. whereas in terms of authority, judges have the most power to punish light or heavy perpetrators of extraordinary crimes. on the other hand, remission, assimilation, and parole in the correctional system are an important part of rehabilitation, restoration, and social reintegration efforts. the process of social reintegration is a complicated process, related to the social relationship of the community with lawbreakers in addition to those related to social support and the government, family and social environment as a frame that becomes a benchmark for the success of the social reintegration process. there are 3 main goals of the correctional system in indonesia, namely clients are http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 289 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia aware of their mistakes, are able to improve themselves by showing positive changes in attitude, do not repeat crimes so that prisoners can be accepted in society, live normally and are able to participate in development.37 furthermore, according to iqrak sulhin, the idea of tightening remission, assimilation, and parole can be implemented to ensure that administrative and substantive requirements are fulfilled. not in the form of extending the period of time for prisoners to apply for these rights. in addition, the correctional system has the concept of individualization of coaching, meaning that the differentiation of coaching can only be done by looking at the form or model of coaching, not in terms of granting rights as correctional inmates. conclusion the legal politics of granting prisoners' rights in the perspective of government regulation no. 99 of 2012 concerning the second amendment to government regulation no. 32 of 1999 concerning terms and procedures for the implementation of the rights of correctional inmates when viewed from the three legal political criteria according to mahfud md can be concluded as follows. first, it relates to state policy regarding the application of law as a way to achieve the state's goals, namely to protect the entire indonesian nation and the entire homeland of indonesia, as well as the goal of the correctional system, namely social reintegration. second, related to the background of the legal enforcement of government regulation no. 99 of 2012, in general there are three things, namely: 1) extraordinary crimes cause great losses to the state or society or many victims or cause panic, anxiety, or extraordinary fear. to the community; 2) the provision of remission, assimilation, and conditional release for perpetrators of extraordinary crimes needs to be tightened with 37 lovita nurindah sari, “analisis sosiologis reintegrasi sosial klien pemasyarakatan,” entita : jurnal pendidikan ilmu pengetahuan sosial dan ilmu-ilmu sosial 3, no. 1 (2021): 76, http://ejournal.iainmadura.ac.id/index.php/entita/article/view/4615. http://creativecommons.org/licenses/by-nc-sa/4.0/ 290 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia terms and procedures to fulfill the community's sense of justice; 3) the existing legal regulations have not fully reflected the interests of security, public order, and the sense of justice felt by the community. third, related to law enforcement that law enforcement has been running well and maximally because the tightening of rights grants has resulted in not all convicts of corruption, drugs, and terrorism getting remission, assimilation, and parole. obstacles to the implementation of government regulation no. 99 of 2012 there are four important things as follows. first, there is a vulnerability to security and order disturbances in prisons because inmates feel different in treatment and feel punished twice. second, the formulation of the article in the government regulation does not provide specificity regarding the qualifications of narcotics users, dealers, and dealers so that there are narcotics users who are actually subject to tightening of remissions and parole. the impact of this is that prisons are becoming more and more full (over population). third, the problem of justice collaborator (jc) which has multiple interpretations, and the requirements for the procedure are less clear and detailed. fortunately, the article regarding the requirements regarding justice collaborator (jc) has been annulled by the supreme court through decision no. 28 p/hum/2021 dated october 28, 2021, so that in granting the rights of prisoners in prison, there is practically no longer a problem. fourth, with the existence of this government regulation, the burden of resistance against perpetrators of extraordinary crimes lies with correctional institutions, which should be carried out together with other law enforcement officers. remission, assimilation, and parole are important parts of rehabilitation, restoration and social reintegration efforts. in addition, the correctional system has the concept of individualization of coaching, meaning that the differentiation of coaching can only be done by looking at the form or model of coaching, not in terms of granting rights as correctional inmates so that it is not appropriate if there are restrictions on these rights. 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universitas negeri semarang, indonesia 47. https://digilib.esaunggul.ac.id/public/ueu-journal-4660a_ahsin_thohari.pdf. wongkar, farly mervy. “pembebasan bersyarat menurut undangundang nomor 12 tahun 1995 tentang pemasyarakatan.” lex et societatis 8, no. 3 (2019): 18-24. acknowledgment none funding information none conflicting interest statement the authors states that there is no conflict of interest in the publication of this article. publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. about author(s) puguh setyawan jhody, s.h., was born in sragen on march 21, 1995. completed his undergraduate education at the faculty of law, state university of semarang, and is currently still struggling to complete his master's degree in law, concentration in law and the criminal justice system at the same university. since 2017 he has worked as the pembimbing kemasyarakatan pertama at the bapas kelas i semarang. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 243 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 2, april 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: february 17, 2021 revised: march 12, 2022 accepted: april 23, 2022 available online since: april 30, 2022 how to cite: nte, ngboawaji daniel, brebina kelvin enoke, and joda adekunbi omolara. “an evaluation of the challenges of mainstreaming cybersecurity laws and privacy protection in nigeria”. journal of law and legal reform 3, no. 2 (2022): 243-266. https://doi.org/10.15294/jllr.v3i2.56484. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article an evaluation of the challenges of mainstreaming cybersecurity laws and privacy protection in nigeria ngboawaji daniel nte1 , brebina kelvin enoke2, joda adekunbi omolara3 1 department of intelligence and security studies, novena university ogume, delta state, nigeria 2 faculty of law, niger delta university, wilberforce island, amasoma, bayelsa state, nigeria 3 school of postgraduate studies, department of intelligence and security studies, novena university, delta state, nigeria  profdnte@novenauniversity.edu.ng http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i2.56484 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 mailto:profdnte@novenauniversity.edu.ng https://orcid.org/0000-0001-6847-2846 244 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia abstract the goal of this study is to discuss cybercrimes and review cybersecurity threats, with a focus on cybersecurity legislations in nigeria that seek to protect the privacy and digital property of the nigerian people and the country’s institutions. the study’s methodology includes a qualitative examination of nigeria's present national cybersecurity laws. it explores how effective they are and interrogates the additional measures that may be needed-notably in cybersecurity and related national laws-to ensure that individuals, institutions are protected and that society and the national economy function well in the 21st century. individuals have a right to privacy, so do companies and various other institutions in postmodern societies. this right varies widely across different countries across the globe. in some countries it is minimal or non-existent, in others it is hard fought for constitutional right. in order to reap the benefits of advanced technologies in the information age, personal and institutional data have to be made available to merchants, institutions and government. the benefits of advanced technologies are immense-and vital to modern economies. however, this process involves risks. abuse of the data is a risk, and criminal abuse has become widespread. keywords: cybersecurity, data privacy protection, nigerian legal system, law enforcement, criminal law introduction according to wikipedia, the constitutions of over one hundred and fifty nations mention the right to privacy. 1 this is instructive to highlight the global interest in privacy laws as it remains one of the fundamental human 1. ^ "read about "right to privacy" on constitute". constituteproject.org. retrieved 31 march 2018. http://creativecommons.org/licenses/by-nc-sa/4.0/ https://en.wikipedia.org/wiki/right_to_privacy#cite_ref-3 https://www.constituteproject.org/search?lang=en&key=privacy journal of law & legal reform volume 3(2) 2022 245 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia rights so far. most times a country’s ability to maximise the cyber benefits and protect citizens’ privacy results in a trade-off. cybersecurity laws therefore are put in place to combat cybercrime which has the potential to infringe on citizens’ and institutions’ privacy, and digital property.2 the threats of cybercrimes are global in nature. they are perpetrated electronically and seriously impact the national economy and security of every nation. with the rapid growth globally of electronic platforms and communications, often replacing now vulnerable “old technology” systems, there has been a huge surge in (a) the number and (b) types of cybercrimes. hence the need for countries to invest significantly in cybersecurity measures-and to draft and pass appropriate laws to protect privacy rights, digital property and related assets. experts have identified some the key issues on the subject of cyber security. among these are the reality that technological changes are occurring at an unprecedented rapid rate. although they benefit the global economy in many positive ways, electronically based abuses are growing at a faster rate than protective cybersecurity systems can be put in place. private sector solutions (protections and solutions) are available, at a price, but are not available to all. in looking at cybersecurity related institutions and policies in nigeria in terms of cybercrime related issues, we had posed some intriguing questions such as: (a) where nigeria stands when it comes to a national policy of ensuring data privacy and (b) the types of initiatives our national policies could be taken to improve the way we approach both the threats to our privacy as well as opportunities to improve our cybersecurity laws and their equitable implementation. the preponderance of cyber-based technologies cannot be over emphasised as they dominate the political, social and economic space of modern society. the cyber world encompasses the world of computers and computer networks involving a wide range of electronic devices and currently rules the entire global socio 2. citation: various internet sources. http://creativecommons.org/licenses/by-nc-sa/4.0/ 246 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia economic and political spectrum. it is globally acknowledged to be a multitrillion dollar “industry”. cybersecurity laws are put in place to protect privacy, data and other information that individuals and institutions (private sector firms and governments) wish to be kept private. they cover almost every aspect of modern economies and societies. they include confidential information required for the proper operation of hospitals, schools, banks, merchants, government services, private institutions as well as personal information stored by households and individuals. the perpetrators of cybercrimes can be categorized in a number of ways. they include: 1. state-sponsored agencies (the literature often cites russia; iran; north korea and china, but it is probable that all countries engage in cybercrimes to some extent). for example, alleged russian interference in the 2016 u.s. presidential elections. 2. entrepreneurial cybercrimes: these can be institutional (e.g. otherwise legitimate banks profiting from money laundering fees) or private individuals (e.g. random hackers and ransomware pirates) or organised crime (e.g. mafia, gangs and terrorist organizations). cybersecurity is put in place to combat crime in cyberspace. the use of the internet globally has grown exponentially in the past years and has become increasingly popular with each generation. the growth of cyberspace comes with an increased risk of various types of cybercrimes being carried out. with this, it has become extremely important for the right measures to be put in place to combat these crimes and that’s where cybersecurity is relevant. the world's economy loses over 500 billion in monetary value yearly.3 thousands of jobs are lost in the united states due to perpetration by cyber criminals. a lot of livelihoods are put at stake when private data is intercepted and used for illegal actions. a kind of cybercrime known as the “business email compromise 3 nigeria communications commision department of new media and information technology http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 247 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia '' is one of the ways in which companies have been compromised over the years. when an attacker gains access to a company's email account and impersonates the legitimate owner in order to dupe the firm, its customers, partners, and/or workers into sending money or sensitive data to the attacker's account, this is known as business e-mail compromise (bec). a nigerian scammer known as ramon olorunwa abbas aka hush puppy received a wire transfer fraudulently of over $922,000 through this means for which he is currently facing indictment.4 the final reports of the nigeria communications commission’s shows that there has been no decrease in the global economic crisis over the years. there has been an evolution in the sophistication of cybercrime and the volume of crime. toolkits have been created which now help facilitate cybercrime as well as web browsers and plugins. attacks are now being perpetrated from the developing world such as india, nigeria, and ghana to the developed world like the us and uk due to the low possibility of being apprehended.5 the effect of cyberterrorism has affected so many countries over the years and nigeria is not an exception. reports indicate that it cost nigeria n127 billion alone in its gdp6. effects of cybercrime affect the bank sector, foreign direct investments, stocks, safe use of the internet without theft of personal details and harassment. theoretical background & limitations a. cybersecurity 4 https://www.bloomberg.com/features/2021-hushpuppi-gucci-influencer/ 5 ibid. 6 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ 248 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia cybersecurity are measures put in place to protect cyberspace from unauthorized access, cyber terrorism and extremism. this was born as a result of cybercrimes which are of various kinds. a good cybersecurity policy secures critical and sensitive data and prevents it from falling into the hands of malicious parties. one will ask that when it comes to security and privacy, which should come first. when you really think of it, how will a nation function if the citizens have lost trust and hope in their country? we tend to wonder whether or not nigeria’s cybersecurity put in place can actually protect its citizen’s privacy. it is difficult for any nation to 100% guaranty the privacy of its citizens especially in the age of cyberterrorism as well as cyberwarfare. the rights to privacy deserve protection. in this respect, nigeria has a long way to go. b. privacy privacy or rather the right to privacy is an element of various legal traditions to prevent governmental and private entities from threatening the privacy of individuals. globally, we have over 150 national constitutions that mention the rights to privacy including the nigerian 1999 constitution as amended.7 the united nations general assembly adopted the universal declarations of human rights (udhr) in 1948 which was originally written to guarantee individual rights of everyone globally. it states that: “no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. everyone has the right to the protection of the law against such interference or attacks” there have been numerous debates on whether there can be privacy in this era with the capabilities of security agencies being able to gain access to private information of individuals for one reason or another. major 7 https://en.wikipedia.org/wiki/right_to_privacy http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 249 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia arguments raised by governments in the uk and australia to justify the increase of government surveillance hereby infringing on the digital privacy of its citizens is the need to protect its citizens from harm by preventing and responding to threats to national security more efficiently. is it truly an infringement if the ultimate purpose is to safeguard both individuals and cyberspace? surveillance and data collecting on individuals is necessary for cybersecurity and the prevention of cybercrime in order to ensure the security of the state, but i feel that privacy rights should also be considered at this time. interestingly, russia’s cyberspace is way ahead when it comes to cybersecurity. other nations such as the u.s, most of the european union and others view privacy as way more important than security and continuously go back and forth on what should take importance. due to issues of extremism, cyberterrorism and cyberwarfare, russia perceives cyberspace as a threat to russian security and stability. russia openly placed the security of the nation ahead of privacy and also changed regulations influencing their cyberspace to a more sovereign one. yes, there has been widespread criticism about these regulations but they must be doing something right as they appear to be the leading power in terms of security over other western powers and obviously nigeria. in recent times, nigeria has faced several security threats from different extremist groups and terrorist cells with a lot of their operations happening over cyberspace and the cyberverse (i.e. cyber universe). it is my opinion that nigeria has a long way to go to ensure that its citizens are not prone to privacy infringement. we don't have to go to the extreme to deal with cybersecurity threats but we should do everything reasonably possible to combat them. there are times that while also protecting the privacy of its citizens, data could be collected hence also in a way privacy is stepped on. when it comes to cybersecurity and privacy there are certain things to keep in mind and there are: 1. sometimes security comes at a cost to privacy. http://creativecommons.org/licenses/by-nc-sa/4.0/ 250 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. privacy requires cybersecurity in order to limit access to individuals personal data. so, although cybersecurity may infringe on privacy at certain times in society, it is also essential to ensure privacy in the long run. 3. cybersecurity helps to achieve privacy and vice versa. in aggregate, they are not necessarily contradictory, as one is required in certain cases for the other to function properly, but in the case of a significant threat to national security in connection with cyberspace, cybersecurity should take precedence over individual privacy. the reaction is determined by the level of threat. c. cybercrime the world as we know it now is a global village. the internet has caused a worldwide transformation since its use began. with the use of the internet becoming popular each day, so has cybercrime. cybercrime is any form of crime that happens in cyberspace. in order for us to talk about privacy and whether or not it should be considered in this age of insecurity in nigeria we have to look at the causes of cybercrime as well as the different types of cybercrime. at the early stages of cybercrime in the country as well as west africa, there were poor attitudes shown towards doing anything to put an end to these scammers. there are a number of people in recent times that have turned to cybercrime over the years. the increasing rate of this practice has become alarming and they are mostly as a result of greed, the want to get rich fast, vast unemployment and lack of interest in education. a lot of these cybercriminals have spread to other parts of africa due to the ecowas free travel protocol. the people who participate in these crimes are: 1. smart and skilful youths who instead of pursuing an education or having a reputable career have decided that all they need to live a happy life is to make money at any cost. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 251 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. insiders at financial institutions that know how these institutions work and how it can be manipulated for their benefits. 3. people with connections to foreigners who can aid them in the carrying out of these crimes. 4. insiders in security agencies. the type of people that participate in these kinds of crimes are not limited to these few named here. cybercrimes can be committed against persons in the form of bullying, online trafficking, child pornography and so on. it can also be committed against the government. this manifests itself mainly in the form of cyber terrorism. so, let's break down the types of cybercrime in order to understand the attacks the country faces. 1. cyber terrorism: a cyber terrorist is someone who undertakes an attack on a government or organization in order to get access to data on computers or their networks. he is also someone who intimidates a government or advances their own political or social agenda by initiating cyberattacks against computers, networks, and information stored on them. it is an act of terrorism done through cyber space (cyberverse) or a worldwide system of interconnected computers. it means that any hostile act intended to generate terror or panic by gaining access to any useful information in companies or government bodies through the use of a computer and the internet is commonly referred to as cyber terrorism.8 cyber extortion is another type of cyber terrorism that occurs when hackers illegally gain data or sensitive information that they use to extort organizations and individuals and hold them hostage until their demands are met. cyber extortionists are increasingly targeting corporate organizations, websites, and networks, crippling their ability to operate on a regular basis. 2. cyber stalking: this is the use of the internet to harass and intimidate people on a regular basis. in this day and age of social media, a great number of people post every detail about themselves online, and this information is easily accessible to anyone who wishes to view it. as 8 journal of law, policy and globalization www.iiste.org issn 2224-3240 (paper) issn 2224-3259 http://creativecommons.org/licenses/by-nc-sa/4.0/ 252 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia expected, this is accompanied by bullying, stalking, harassment, and so on. they can take the shape of sexual harassment, racism, or just plain rage.9 3. malware: these are software programs that obtain unauthorized access to your computer. viruses and trojan horses are examples of them. these programs are designed to harm a network or a machine.10 4. fraud & identity theft: this entails lying on purpose in order to get information and identity illegally. this is one of the many cybercrimes that are prevalent in nigeria, and it is referred to as yahoo. those engaging in cybercrime in nigeria use the internet to deceive, defraud, and steal people's identities. 5. drug trafficking: it has become common for drug traffickers to conduct their illegal drug sales online. they have used numerous technical techniques to sell illegal narcotics via the internet. the surge in buying and selling drugs on the internet could also be due to the fact that most people now live on their phones. this new discovery has made it easier for introverted people to obtain these substances. laws implemented to defend against cybercrime the cybercrime (prohibition, prevention) act 2015 is nigeria's major cybercrime law. prior to this, there was no unique legislation dealing with cybercrime hence protecting the privacy of individuals in the country, however there were other laws that were helpful in combating cybercrime, which we will go through in detail. 1. the efcc act: before the passage of the cybercrimes act of 2015, the economic and financial crimes commission (efcc) act was the law in place to prosecute people who committed cybercrime in the 9 the international journal of engineering and science (ijes)||volume||2 ||issue|| 4 10 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 253 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia country.11 this was due to provisions in the act that dealt with cybercrime. it stipulates that: the commission (economic and financial crimes commission) established under the efcc act shall be responsible for the enforcement and proper administration of the act's provisions, as well as the investigation of all financial crimes, including advanced fee fraud, money laundering, counterfeiting, illegal charge transfers, futures market fraud, fraudulent encashment of negotiable instruments, computer fraud, and computer piracy.12 this act established a broad range of rules covering all sorts of internet-related crime, granting it the authority to combat and prosecute individuals found guilty of committing these crimes. this made a significant contribution to cybersecurity at a period when there was no specific regulation addressing cybercrime. 2. money laundering (prohibition) act: this act makes it illegal to launder proceeds from illegal funds. it specifies that no individual or corporation may accept a cash payment in excess of $5,000,000 for individuals and $10,000,000 for corporations unless the payment is made through a banking institution. any such transactions must be disclosed within seven days to the cbn or the efcc. this aims to prevent cybercriminals from using financial institutions to launder money and fuel illegal operations. when money is laundered for terrorist purposes, the transaction's bearer's identity should be made public and reported to the proper authorities. privacy should be compromised for the benefit of security in this case. this act concerns cybersecurity and how cybercrime is prosecuted, notably in financial organizations. the efcc is also in charge of enforcing the provisions of this act. 3. the criminal code act: this act does not specifically address cybercrime because it predates the internet and dates back to colonial times. under this statute, every sort of theft, as well as false pretences, 11 journal of law and criminal justice june 2020, vol. 8, no. 1, pp. 30-49 12 economic and financial crimes commission establishment act (2004) http://creativecommons.org/licenses/by-nc-sa/4.0/ 254 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia is a criminal offense. because cybercrime is committed under the pretext of a legal business, those who perpetrate cybercrime under the guise of a legitimate business can be penalized under this act. it states that any person who obtains anything capable of being stolen, or forces someone to obtain anything that could be stolen or pays for or delivers anything that is said to have been stolen or gotten with trickery or pretences is guilty of a misdemeanour.13 this part of the criminal code is specifically for internet fraudsters who use false pretences to swindle people. this is one of many laws that addressed cybercrime before the cybercrime act of 2015 made it explicit. 4. the penal code act: despite the fact that it does not explicitly indicate that it deals with cybercrime, this act is used to prosecute cyber offenders and defend cybersecurity in nigeria. sections of the penal code, such as section 362 of the penal code, are used to prosecute cyber criminals who engage in counterfeiting and forgery. this act only applies to the northern area of nigeria. section 362 of the penal code says that a person who with the intent to be dishonest signs, seals or execute a document with the sole intent to deceive other individuals that they have the capacity to sign such document or without the proper authority alters a document to deceive others into believing that the falsified document s real commits forgery.14 section 320 of the penal code also provides that whoever by deceiving a person induces the person who has been misled to give any property to a person in a fraudulent or dishonest manner or intentionally convinces the person deceived to do or omit doing anything that he would not do or avoid doing if he were not so deceived and such act or omission causes or is likely to cause damage to that person in body, mind, reputation, or property is said to cheat15. 13 criminal code act 14 section 362 of the penal code act 15 section 320 of the penal code act http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 255 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this section can be used in areas of deception in cybercrime. the area of inducement as seen in this section is seen most especially in the area of cyber terrorism. 5. the terrorism (prevention) (amendment) act 2013: although this act was not intended primarily for the purpose of cybersecurity, it can be used in certain cybersecurity situations, particularly those involving cyber terrorism and other terrorist acts committed online. this act was abolished in 2011 to incorporate regulations for terrorist financing offenses. section 1 (b) of this act says that any individual or company who, whether inside or outside the country, deals directly or indirectly in any act of terrorism, commits an act preparatory to or in furtherance of an act of terrorism, fails to do what is necessary to prevent terrorism, aids or facilitates the activities of individuals involved in terrorist acts, or is an accessory to any offence under this act, helps, facilitates, or organizes any act of terrorism once convicted is punishable by death .16 several authorities in nigeria, including the efcc, the department of state security, and the nigerian police force, have the authority to pursue these offenses. with the harsh fines imposed here, it is clear that the country has zero tolerance for terrorism and that when it comes to privacy or the battle against cyber terrorism, the fight against cyber terrorism should always take precedence. 6. the nigerian evidence act 2011: before this act was created, computer generated evidence were inadmissible in the court of law. it was unsure under the old act whether or not evidence generated via computer were primary or secondary evidence. the 2011 evidence act brought about the admissibility of such evidence. although this act came to be, a lot of cybercriminal activities online were still unchecked and this was due to the fact that the different crimes like hacking, email hacks, pin theft and so on were 16 section 1 (b) of the terrorism act 2013 http://creativecommons.org/licenses/by-nc-sa/4.0/ 256 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia not identified and given proper penalty in the act. there were also no designated courts or agencies put in place to prosecute cybercrime. the cybercrime act coming into force changed all that and was able to cover a wider range and punishment for cybercrime. the nature of the problem the security threats that the nation faces these days have drastically evolved. a lot of these threats are on the cyberspace which means that criminals have evolved hence the need for our laws and implementation to evolve alongside its threats. the country faces numerous threats from various cyber criminals. many industries are under attack for its large amounts of data especially the banking sector. a proper cybersecurity solution and implementable laws could deal with a lot of these issues.17 the cyberspace is ever expanding which makes the prediction and the prevention of criminal activities on the cyberspace hard to deter. these activities are growing twice as much as the activities outside the cyberspace such as infiltration of banking mainframe, illegal access to password and sensitive information’s, funding criminal activities. in nigeria’s security system, cybersecurity seems to take the lowest number in the scale of preference of national security. nigeria has failed to realize that investing in cybersecurity is as much an integral part of the nation’s security. nigeria has created laws to combat the crime but fails in the way of implementation when these laws are actually broken. different agencies have taken upon themselves the right to implement these laws and have failed. the country lacks the preparedness to handle cybersecurity breaches and needs to work on the right way to dealing with these challenges how the effectiveness of the solutions put in place. organizations must also take the extra step to defend their systems and data from attack. the organizations have a somewhat careless attitude towards fortifying their security from cyber-attacks. they need to invest in 17 https://www.recordedfuture.com http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 257 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia information technology (it) and training their staff in cybersecurity practices.18 literature review i. the rise of ponzi schemes in the covid 19 pandemic ponzi schemes have become rampart on the cyberspace since the covid 19 pandemic began. criminals have resulted to using the internet as a means to defraud people all over the world. in a recent case of isaiah vs jp morgan chase bank in the year 2020, several entities brought a claim against chase bank claiming that the bank aided and abetted with the ponzi scheme. apparently, the bank was aware about transactions on the account suspected of fraudulent activities and did nothing to stop it. the bank only closed the account after millions of dollars had gone through the account and still allowed the ponzi scheme to open a new account to carry on their fraudulent activities. the bank went further by allowing this fraudulent organization officially to wind down and transfer the illegally acquired funds.19 wells fargo bank also had a similar case where two individuals created a company that promised great returns to people who invested and went further to pass the money through wells fargo bank. a lot of people fall victim to ponzi schemes especially since the outbreak of covid 19 which has left a desperation for people to fend for themselves. people fell for this due to desperation to get rich quick, poverty and loss of job and finances due to the pandemic. millions of victims fall to these kinds of cyber frauds every year, especially the elderly and in recent times in hospitals. there have been cases of individuals diverting covid 19 relief funds as well as duping hospitals. these individuals under the guise of providing equipment’s to 18 the international journal of engineering and science (ijes) 19 https://www.natlawreview.com/article/ponzi-scheme-discovery-boom-may-followwake-worldwide-economic-contraction-case-law http://creativecommons.org/licenses/by-nc-sa/4.0/ 258 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia these hospitals take large amounts of these money and defraud these hospitals. a popular case is that of parris and santillo who fraudulently acquired millions of dollars from individuals from 2017 and 2018 under the ruse of return on investment via ponzi schemes. these same individuals went as far as carrying on a huge covid 19 scam where they gained access to hospital funds through the pretence of proving covid 19 equipment’s to hospitals.20 a. the rise of ponzi schemes during the covid 19 pandemic in nigeria ponzi schemes go as far back as anyone can remember. with the internet, they have gained traction on the cyberspace. they have been able to reach a large amount of people and during the period of severe uncertainty, a lot of people are looking for the fastest ways to finance their lives and family in order to survive during the pandemic. there are several reasons why people fall prey to these illegal schemes and they are: 1. poverty: over 40% of nigeria’s population are living in poverty.21 due to this, a lot of nigerians easily fall prey to get quick schemes that they come across on the internet. in a nation where poverty rate is so high, it is no surprise that more people will fall for these schemes hoping to become millionaires overnight. nigeria is rich is natural resources but a lot of citizens still live below the poverty line. in the current presidents second inauguration speech, he promised to lift over 100 million nigerians from poverty but failed to do even now in 2020. 2. lockdown: the lockdown played a huge role in people falling for ponzi schemes. in 2020, for example, a 14-day lockdown was put in place in order to curb the spread of the virus. this 14-day lockdown 20 https://www.justice.gov/usao-dc/pr/georgia-man-pleads-guilty-charges-relatedponzi-and-covid-19-fraud-schemes 21 pakistan social sciences review http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 259 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that was to end in march then ended in may.22 the places affected by this lockdown included schools, churches offices and markets. in order to enforce these no movement laws, law enforcement were placed at strategic places to prevent people from moving around unless they were essential workers. the poor were left to fend for themselves during this time which lead them to look for other means to make money while spending all their time on social media. a lot of get rich quick scheme were advertised online and lot of unsuspecting nigerians fell prey to this. 3. lack of palliatives (covid 19): to quote a reputable source: “in a bid to slow the rate of spread of the virus, the federal government of nigeria, on several occasions, imposed targeted lockdown measures in areas with rapid increase of covid-19 cases. the states in which the federal government imposed the targeted lockdown included lagos, ogun, and the federal capital territory in abuja. some states in the country imposed partial lockdown and closure of interstate boarders. curfews have also been introduced in all the states nationwide. to alleviate the effects of the lockdown, the federal government of nigeria rolled out palliative measures for targeted groups. however, lamentations have trailed the distribution of government palliatives by the masses. citizens allege that the process of distribution of palliatives had been politicized.” .23 this is another reason why people fell prey to get rich schemes during the pandemic. a lot of people living in poverty were left without money making it impossible for them to provide for themselves during the pandemic lockdown. other countries, such as the us and the uk, provided their citizens with palliatives during the pandemic but although palliatives were donated to nigeria, it wasn’t distributed to the citizens. a large amount of the hoarded palliatives that were claimed to have been shared to the less privileged citizens were later discovered 22 pakistan social sciences review 23 https://pubmed.ncbi.nlm.nih.gov/32685279/. http://creativecommons.org/licenses/by-nc-sa/4.0/ 260 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in warehouses across the states. warehouses full of palliatives were discovered in kano, lagos and osun state just to name a few.24 4. cyberspace: in nigeria, the cyber space is not properly protected letting different kinds of questionable persons to infiltrate the cyber space and use it for criminal activities. nigeria is the third country in the world of a list of ten with the highest level of criminal activities taking place online. with regard to victims, in asaba delta state more than 1000 people invested in a get rich scheme with a company called smart alban investment company sa/fx investment global ltd ran by a mr. smart alban ike and lost millions of naira.25 the owner of the company went on the run instantly abandoning his company premises which was later sealed off by efcc. filling the knowledge gap one of the first and most urgent propositions to consider-in relation to closing the knowledge gap-is how nigeria should protect its most vulnerable citizens. this proposition is not based on “equity” as such, which implies that civil rights are the dominant consideration. rather, it is based on the need for sound public policies-to protect the economy as a whole, and our social structures. vulnerable citizens are those who have little money and protections. in most cases, they cannot afford to buy technological solutions. they are the most vulnerable group when it comes to safeguarding themselves against the impacts of random or targeted cyberattacks. we cannot afford to isolate and abandon some groups in society through what is sometimes regarded as the digital divide. this refers to the gap between people who have access to modern information and communications technology and those who don't. 24 https://www.bbc.com/pidgin/tori-54677956 25 https://www.nairaland.com/6496590/sa-fx-ceo-mr-smart-alban http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 261 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia if nigeria does not-at a minimum-protect its most vulnerable citizens, it runs the risk of undermining the economy and the country’s social structure. if people en masse lose confidence in the state, if they are forced to protect themselves, our institutions will be weakened. this is a road to undermining the national economy. ordinary citizens need to have confidence in nigeria’s monetary system and its various payments systems (including banks, near-banks and entrepreneurial digital payment platforms-which forbes estimates, globally, collectively are worth over $19 trillion annually). citizens have to see fairness, and be confident in nationwide legislation that “bites”, penalizing those who break the law. nigeria is not a wealthy country which can afford to “go it alone” in the emerging world of cybersecurity. we simply don’t have the trained people or the resources. for now, we have to follow global best practices and fully use commercially available technology. focusing, as a priority, on our country’s most vulnerable citizens still leaves a huge segment of the economy at risk-notably the private sector and government institutions. as already discussed, there are numerous private sector global companies who are providers or suppliers of protection software. these commercial products have a price but should be used to the maximum. there is a public cost if private sector firms fail to protect their customers. saying sorry, after mega-hacks of personal data just isn’t good enough. issuing “patches” is not enough. private sector firms, and governments, have a fiduciary duty to protect their users’ privacy. to maintain consumer confidence, we need to consider punitive fines for institutions-and government officials-who are cavalier about this responsibility. we have to recognise that all laws, anywhere in the world, inevitably lag the crimes and criminal activities which trigger the need for them. in other words, the law typically is reactive, not proactive. it would be unrealistic to imagine otherwise. in nigeria, we already have many of the institutions necessary to close the time-gap between criminal acts and new legislation. our challenge is to make sure they are adequately funded and that they function as intended. http://creativecommons.org/licenses/by-nc-sa/4.0/ 262 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia we have to recognise that, as grand and well-meaning as it is, the universal declaration of human rights (udhr) and similar declarations of citizens’ rights, may at the present time be too expensive a luxury when it comes to the rigorous protection of individual privacy. based on the ageold doctrine-andpractise-of “for the common good” citizens may have to accept some compromises to their individual liberties when it comes to individual privacy. however, this should be very selective. structural and political issues arise. for example, who decides what is for the common good? who administrates? who implements—and with what legislative powers? these are dilemmas we will be living with for perhaps many generations. there is no obvious answer. we can be sure of one thing-there will be many dissenting voices. on the other side of things, taking no action will not be excusable. the second proposition to consider is how to protect privacy, in general, both immediately and over the longer term. in terms of the knowledge gap, this is a question of available resources, the pace at which we educate our citizens and the value we place on the protection of individual and corporate privacy. the panama papers and the cambridge analytica/facebook data scandals have revealed significant structural weaknesses in global policing of institutional crimes, abuse of personal data and lax tax evasion laws. in much the same way as improvements in nigeria’s policing and counter-terrorism infrastructure are a very high priority, so too are vital improvements in our cybersecurity forces-and ensuring that we have cybersecurity laws with teeth. a third proposition is worthwhile discussing. it’s an opportunity. nigeria has one of the world’s youngest populations. our demographics are both a challenge and huge resource. despite low average income per capita, our youth is computer savvy. it is adaptable and flexible, and motivated. the technologies that today are a platform for many criminal activities can be re-orientated towards productive activities. we have to discover how, agree a strategy and implement it. it’s a huge task, but the potential rewards are immense. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 263 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research method our mythological thrust is rooted on qualitative approach. this provided a useful way of approaching a very complex and rapidly evolving subject. a substantial level of detailed sources is available in digital form, and we relied heavily online sources to search the literature. we found numerous sources of information on the global situation available from government reports and private sector publications. we also drew on our own experience of the subject, as this was a useful source of identifying some of the items which we enumerated earlier in the work with regard to information on nigeria’s laws and regulations relating to cybercrime and cybersecurity, we used publicly available online sources, including government websites and several legal platforms which helped explained their purpose and operation. the latter, along with the popular media, also provided useful critiques of the system in nigeria. examples of global best practices and solutions to the conflicts between cybersecurity laws and rights to privacy were found on various platforms, including ngo studies, private sector and government reports. an important source was the nigerian and global media, which provides a type of “watchdog” role in identifying examples of cybersecurity abuses and failings. these sources were also a valuable source of my discussion of possible solutions that nigeria could consider adapting and adopting. results & concluding remarks our study and analyses found that the benefits of full participation in digital technologies associated with the information age certainly outweigh the costs. they help make our lives easier, they allow economies to function and they provide jobs and numerous social benefits, including better healthcare and improved levels of education. at the same time, government and the private sector have (a) fiduciary duties and (b) legal responsibilities to protect their citizens and http://creativecommons.org/licenses/by-nc-sa/4.0/ 264 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia institutions from abuses of privacy and the protection of data and digital property. like all laws, the regulatory framework vital to curbing abuses, and penalizing the perpetrators of cybercrimes, typically “lag” behind the crimes themselves. in addition, people and institutions have a responsibility to protect themselves. cybercrimes such phishing and various other types of fraud have grown rapidly in number and sophistication. again, with a “lag”, citizens have become more digitally savvy-and this has to continue, as part of closing the knowledge gap. nigeria has many of the institutions already in place to provide cybersecurity regulations and to develop appropriate new laws, where required. not everything can be regulated, thus consumer and institutional education has to be a high priority for our country. our findings are that the literature shows, however, that not all of the laws that nigeria has put in place to achieve cybersecurity are managed well. often, they are policed inadequately-when it comes to enforcement and prosecutions. we can do better. closing, and ultimately filling, the knowledge gap between the rapid escalation of cybercrimes and nigeria’s cybersecurity measures and supporting laws, is a fundamental necessity. otherwise, our national economy will suffer; social structures will deteriorate and the forces of political instability will grow. looked at positively, filling the gap will allow our country to attain more of its full potential-as a modern, secure and prosperous digitally-based nation within the global economy. references bbc news: covid palliative looting https://www.bbc.com/pidgin/tori54677956 blogpost: naira land forum https://www.nairaland.com/6496590/sa-fxceo-mr-smart-alban http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.bbc.com/pidgin/tori-54677956 https://www.bbc.com/pidgin/tori-54677956 https://www.nairaland.com/6496590/sa-fx-ceo-mr-smart-alban https://www.nairaland.com/6496590/sa-fx-ceo-mr-smart-alban journal of law & legal reform volume 3(2) 2022 265 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia bloomberg [2021]: the fall of the billionaire gucci master (https://www.bloomberg.com/features/2021-hushpuppi-gucciinfluencer/) department of justice [2021]: united states attorney general’s office (https://www.justice.gov/usao-dc/pr/georgia-man-pleads-guiltycharges-related-ponzi-and-covid-19-fraud-schemes ) economic and financial crimes commission: the efcc act [2004] federal republic of nigeria. journal of law policy & globalization [2015] http://www.iiiste.org issn 2224-3240 maitami.o, ogunlere.s, ayinde.s, adekunle.y [2013]: the international journal of engineering and science-impact of cybercrime on nigeria economy issn 2319-1813 vol 2/issue 4 national law review [2020]: ponzi scheme discovery boom national library of medicine: national centre for biotechnology information [https://pubmed.ncbi.nlm.nih.gov/32685279/] nework security systems ltd: ncc, effects of cybercrime on foreign direct investment & national development .page 11, 12 pakistan social sciences review : issn (print)2664-0422 https://pssr.org.pk/ penal code act: section 320,362., federal republic of nigeria recorded future team [2020]: 2019 vulnerability reports terrorism act [2013]: sec 1(b), federal republic of nigeria. the nigerian criminal code act , federal republic of nigeria. ufuoma.v.a, ohwomeregwa.o [2020]: journal of law and criminal justice, appraising the laws governing the control of cybercrime wikipedia (2021): the right to privacy https://en.wikipedia.org/wiki/right_to_privacy acknowledgment none funding information none http://creativecommons.org/licenses/by-nc-sa/4.0/ https://www.bloomberg.com/features/2021-hushpuppi-gucci-influencer/ https://www.bloomberg.com/features/2021-hushpuppi-gucci-influencer/ https://www.justice.gov/usao-dc/pr/georgia-man-pleads-guilty-charges-related-ponzi-and-covid-19-fraud-schemes https://www.justice.gov/usao-dc/pr/georgia-man-pleads-guilty-charges-related-ponzi-and-covid-19-fraud-schemes http://www.iiiste.org/ file:///c:/users/acer/appdata/local/temp/%5bhttps:/pubmed.ncbi.nlm.nih.gov/32685279/%5d https://pssr.org.pk/ https://en.wikipedia.org/wiki/right_to_privacy 266 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conflicting interest statement the authors states that there is no conflict of interest in the publication of this article. publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. about author(s) ngboawaji daniel nte is a professor at the department of intelligence and security studies, novena university ogume, delta state, nigeria. brebina kelvin enoke is a faculty member at the faculty of law, niger delta university, wilberforce island, amasoma, bayelsa state, nigeria. joda adekunbi omolara is a researcher at the school of postgraduate studies, department of intelligence and security studies, novena university, delta state, nigeria. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 521 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 4, october 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: march 11, 2022 revised: july 28, 2022 accepted: august 28, 2022 available online since: october 31, 2022 how to cite: saputra, danang aji. “the problem of the constitutional court’s decision in the formal test of the job creation law”. journal of law and legal reform 3, no. 4 (2022): 521542. https://doi.org/10.15294/jllr.v3i4.57699. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: review article the problem of the constitutional court's decision in the formal test of the job creation law danang aji saputra postgraduate program, master of laws, universitas negeri semarang, indonesia the budget board of the regional house of representatives of batang regency (badan anggaran dprd kab batang)  danangajisaputra@mail.unnes.ac.id abstract one year already after the enactment of law number 11 of 2020 concerning job creation which was declared conditionally unconstitutional by the constituency court through decision number 91 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i4.57699 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 522 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia / puu-xviii / 2020. in the decision, it is stated that the job creation law contains formal defects in the process of its formation, so that the dpr and the government must make improvements in accordance with the procedures for the formation of applicable laws and regulations, with a maximum period of 2 years from the time the decision is read by the constitutional court. from this writing, the author focuses on discussing the formal test of the job creation law after the constitutional court decision and the direction of improvements made by the government after the constitutional court decision on the job creation law. in writing this article, the author uses normative juridical research methods sourced from books and also articles that are in accordance with the theme written. as a result of this study, the author can describe the results of the formal testing of the job creation law which is connected with the constitutional court decision with the science of legislation, using a statutory approach and using theories from the views of legal experts through a conceptual approach that is carried out systematically and holistically. keywords: job creation, formal defects, constitutional court decision introduction the provisions of article 1 paragraph (3) of the 1945 constitution of the republic of indonesia affirm that, "the state of indonesia is a state of law", meaning that the consequence of understanding the state of law is the existence of an obligation to fulfill the principle of legality. this principle of legality means that all government actions must be based on valid and written laws and regulations, so that the applicability of this principle of legality is needed in laws and regulations. according to bagir manan, explaining that the laws and regulations have internal and external functions. this internal function becomes a subsystem in law that functions in the creation of laws, carries out legal renewal, the integrity of legal pluralism and guarantees legal certainty. in its external function, it is used http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 523 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as a link between laws and regulations and the place of enactment, namely in the social function of law, the function of change, stability, and convenience.1 in the laws and regulations that are the main instruments, namely the law which normatively regulates further arrangements regarding the provisions of the 1945 constitution of the republic of indonesia, the existence of an order for an act to be regulated in the law, ratification of international agreements, follow-up of a constitutional court decision, or the fulfillment of legal needs in society. an example of a case is the history of the2 marbury vs. madison case in the united states, where in the ruling there is a judicial review doctrine. since the 1803 case until now, many countries have had their own constitutional courts, including in indonesia. in article 24 paragraph (2) of the constitution of the republic of indonesia of 1945 it is stated that: "judicial power is exercised by a supreme court and the judicial bodies subordinate to it in the general judicial environment, the religious judicial environment, the military judicial environment, the state administrative court environment, and by a constitutional court". based on the provisions of the article of the constitution, there are two most important things, firstly, namely the judicial institution, namely the constitutional court, and the second is about testing the law against the basic law.3 the constitutional court has the authority to test the law against the 1945 constitution of the republic of indonesia, either in substance or material content in the law, in accordance with the procedure for the formation of laws. in the perspective of legal formation in indonesia, the authority of the constitutional court is a negative legislation because it can cancel provisions that are contrary to the 1945 constitution of the republic 1 bayu dwi anggono. 2020. pokok-pokok pemikiran penataan peraturan perundangundangan di indonesia. jakarta: konpress, p. 14; jazim hamidi & kemilau mutik. 2011. legislatif drafting. yogyakarta: total media, hlm. 15. 2 pasal 10 ayat (1) undang-undang nomor 12 tahun 2011 tentang pembentukan peraturan perundang-undangan. 3 jimly asshiddiqie. 2006. hukum acara pengujian undang-undang, jakarta: hukum acara pengujian undang-undang, p. 50 http://creativecommons.org/licenses/by-nc-sa/4.0/ 524 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of indonesia. the constitutional court's decision to overturn this norm contrary to the constitution is final and binding. thus, this nature does not determine any other legal remedies that can be pursued to correct the decision of the constitutional court. as a follow-up to the decision, namely positive legislation which is a power possessed by the dpr together with the president.4 as a follow-up to the ruling is positive legislation which is the power that the dpr has together with the president. the problem that arises is that it turns out that the constitutional court's decision did not directly receive a follow-up response by the dpr to make amendments or adjustments to the results of the constitutional court's decision. in practice or implementation, the dpr did not immediately follow up on the constitutional court's decision, so the execution of the constitutional court's decision was not easy. there are two important factors that will influence the attitude of the dpr to conduct legislative review, namely the first is related to the substance of the controversial constitutional court ruling. the second is related to the mechanism and system of submitting bills in the dpr which are planned and integrated in the instruments of the national legislation program. indonesia has now reached the point where the law is an instrument in national development, which has a very large role in determining the direction of the development of the indonesian nation in all aspects. this point is concerned with the start of a new decade filled with all sorts of new threats, challenges, obstacles and many distractions. this can arise from anywhere and from anyone, it can be externally or internally. from this symptom, humans can easily judge and observe, as currently the public is busy with new challenges initiated by the agenda of the advanced indonesian cabinet government by placing a draft law on job creation which is included in the national legislation program (proglegnas). the government in this case issued law number 11 of 2020 concerning job creation. the objectives of the establishment of the job creation law are as follows: (1) creating and increasing employment by providing 4 jurnal legislasi nasional, vol 6 no 3, september 2009, p. 3 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 525 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia convenience, protection and empowerment of cooperatives and umk-m as well as national industry and trade so that they can homogenize the indonesian workforce as widely as possible, while still paying attention to the balance and progress between regions in the national economy: (2) guaranteeing to every citizen who gets a job, in order to receive fair and proper remuneration and treatment in the employment relationship: (3) make adjustments to several regulatory aspects related to partiality, strengthening, and protection for members of cooperatives and umk-m and national industries; and (4) make adjustments from various regulatory aspects related to increasing the value of investment, facilitating and accelerating national strategic projects with an orientation to national interests based on the pancasila ideology.5 this job creation law was formed by the omnimbus law method by simplifying 81 laws with a total of 1,244 articles into one law. this omnimbus law method is commonly used in countries that use the common law legal system, such as america. according to maria farida indrati who stated that the omnimbus law is one of the laws that contains and regulates various kinds of substances and subjects as a step of simplification of various applicable laws. in the implementation of the issuance of the job creation law, it received a lot of opposition from the public, because the process was assessed very quickly and in its preparation, there was no participation from the public, so there were many errors in the content of the article which were considered very detrimental to the community. normatively, if a law is considered contrary to higher laws and regulations, it can be tested to the constitutional court based on the provisions of article 24c paragraph (1) of the 1945 constitution of the republic of indonesia which states that: "the constitutional court has the authority to adjudicate at the first and last level whose decision is final, to test the law against the basic law". therefore, the constitutional court granted the application for a formal 5 pasal 3 undang-undang nomor 11 tahun 2020 tentang cipta kerja. 7 maria farida indrati, “omnibus law, uu sapu jagat?”, dalam harian kompas, 4 januari 2020, p. 6. http://creativecommons.org/licenses/by-nc-sa/4.0/ 526 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia test of the job creation law. the constitutional assembly affirmed that law number 11 of 2020 concerning job creation was considered formally flawed, so the court declared that the job creation law was conditionally unconstitutional. 6 the decision of the constituent court on the formal testing of law number 11 of 2020 concerning job creation continues to be a polemic and public discussion. of the 12 applications that will be tested both formally and materially, only 1 application has been granted, namely in the constitutional court decision no. 91/puu-xviii/2020 which states that the job creation law is unconstitutional conditional. the constitutional court explained that the reason why the job creation law was declared unconstitutional, this is because the constitutional court wants to avoid legal uncertainty and the great impact that will be caused, therefore the court must consider and balance the formal requirements in creating the law. in its 448-page ruling, the constitutional court also ordered the framers of the act to make improvements for a period of not more than 2 years, from the time the judgment was pronounced. if no improvement is made during the grace period, then this job creation law is declared permanently unconstitutional. on the contrary, the consequences of articles or materials containing a number of laws that have been repealed and amended, the job creation law can be re-enacted. the constitutional court also ordered the government to affirm all actions or policies that are strategic and have a broad impact, and not to issue new implementing regulations related to the job creation law. based on the background that has been described, the author in this study will examine: (1) how to test the formal implementation of the job creation law after the constitutional court decision; and (2) what is the direction of improvement that will be carried out by the government in the management system of the establishment of laws and regulations after the decision. the purpose of this study is as follows: (1) in order to analyze the formal testing of the job creation law after the decision of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 527 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the constitutional court; and (2) in order to analyze the direction of improvements made by the government to the system in the management of the establishment of laws and regulations after the decision of the constitutional court that has been issued. method this research uses research methods with the type of normative juridical research, where the research is used to find conherence between legal rules and norms, legal norms with legal principles, and actions with legal norms or principles. mukti fajar and yulianto ahmad in their book explained that this normative legal research is a study that places the law as a building in a system of norms consisting of principles, norms, rule of laws and regulations, agreements, and doctrines (teachings) applied. as a result of this study, the author can describe the results of the formal testing of the job creation law which is connected with the constitutional court decision with the science of legislation, using a statutory approach and using theories from the views of legal experts through a conceptual approach that is carried out systematically and holistically. the data used in this study also used secondary data, which was obtained through literature studies and secondary data through the collection of materials both primary, secondary, and tertiary. then all these data are processed and arranged into one systematically and logically, by providing a prescription or solution that should be able to solve the problem at hand.7 7 peter mahmud marzuki. 2019. penelitian hukum, edisi revisi, cetakan ke-14. jakarta: prenada media group, hlm. 47. http://creativecommons.org/licenses/by-nc-sa/4.0/ 528 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia result & discussion i. formal testing of the job creation law after the constitutional court's decision on november 25, 2021, the constitutional court (mk) read decision number 91/puu-xviii/2020 concerning formal testing of law number 11 of 2020 on job creation (job creation law). in its ruling, the constitutional court granted some of the applications submitted by migrant care, the nagari customary density coordinating board of west sumatra, the minangkabau customary court, and muchtar said. more fully, the citation in a quo judgment states that the establishment of the job creation law is contrary to the 1945 constitution and does not have conditionally binding legal force as long as it is not interpreted as "no improvement has been made within 2 (two) years since this decision was pronounced". stating that the job creation law remains in force until improvements are made to the formation in accordance with the grace period as specified in this decision." the decision read by the chief judge of the constitutional court, anwar usman, not only succeeded in resolving the conflict between the people and the framers of the law (read: dpr and the president) due to the implementation of the job creation law. however, more than that, the sound of the verdict also triggered the birth of confusion in the community. in a writing that dates back hundreds of years, james b. thayer (1893) introduced the theory of judicial restraint. this theory, he introduced in a paper entitled "the origin and scope of the american doctrine of constitutional law" by saying that courts should limit and refrain from making policies that are the domain of the authority of the executive and legislative branches of power. the theory of judicial restrictions was later developed by many experts in the following years. one of the experts who developed this http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 529 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia theory and is widely referenced is richard a. posner. in his article entitled "the rise and fall of judicial self-restraint" published in california law review (2012), he classified the approach to judicial restriction theory into three categories. all three categories are: first, the approach of legalism or formalism which states that judges only carry out the law and do not make laws. second, modesty, institutional competence, or process jurisprudence which requires judges to respect and not enter the territory of legislative or executive authority. ketiga, a constitutional restraint that places judges to be very reluctant to declare unconstitutional a decision or an executive or legislative action. according to bisariyadi (2015), the theory of judicial restrictions is also used by the courts to maintain harmonious relations with other branches of power, especially the executive and legislative branches of power. the relationship must be maintained by the courts so that they avoid political attacks that can endanger the existence of their institutions. various kinds of political attacks can be in the form of dissolution of the judiciary, limiting the authority of the judiciary, increasing the authority of the judiciary without providing additional resources, politicizing the recruitment of judges, delaying the disbursement of the budget needed by the judiciary and other forms of political attacks that have the potential to threaten the existence of the judiciary. for example, in 2012, the hungarian constitutional court came under tremendous political attack through constitutional changes. under the new constitutional rules, the authority of the hungarian constitutional court was restricted and the procedure for selecting constitutional judges was changed to benefit the regime in power. ukraine's constitutional court came under intense political pressure when it was asked to assess the constituency of the ukrainian president's request to dissolve parliament in 2007. such intense political pressure even led the chairman of the constitutional court of ukraine to resign. one form of political pressure came from the police, when they decided to examine constitutional judges on corruption charges. finally, the political pressure exerted on the ukrainian constitutional court succeeded in shutting down the existence http://creativecommons.org/licenses/by-nc-sa/4.0/ 530 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of this constitutional judicial institution. this is because, after the incident, 3 judges were removed from office and another 4 judges applied for leave to the president. the need for regulatory reform in indonesia has been swelling due to the number of regulations that are perceived to be not easy to carry out in increasing business activities and the absence of support for investment activities. as in the present, the situation is getting worse due to the existence of data on laws and regulations that are often not the same as data managers from one another. other problems such as the absence of an institution that is the place to be the sole manager of official laws and regulations data, thus making the data not become structured. therefore, in indonesia, it still does not show that its regulations have problems that must be addressed quickly.8 a year after the enactment of law number 11 of 2020 concerning job creation, the constitutional court finally decided the job creation law was unconstitutional. through decision number 91/puu-xvii/2020 or the formil test decision of the job creation law read on november 25, 2021, the decision states that the job creation law contains formal defects in the process of its formation, so that the dpr together with the government must improve the law in accordance with the procedures for the formation of the applicable law and within a maximum period of two years in the future. this job creation law is a manifestation of neoliberal authoritarian cositualinalism that has been opposed by society since its inception. the constitutional court declared the job creation law to be formally flawed, and the job creation law is still valid even though it has been suspended. in substance, the job creation law is considered very detrimental to the community, especially in the field of labor. normatively, in article 51a paragraph (3) of the constitutional court law, if it is connected with the constitutional court decision number 79/puu-xvii/2019, it has 8 wicipto setiadi, simplifikasi regulasi melalui pendekatan omnibus law: suatu keniscayaan, orasi ilmiah dalam rangka dies natalis universitas pembangunan nasional “veteran” jakarta ke-57, 7 januari 2020, p. 2. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 531 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia determined the requirements in submitting an application for formal testing, as follows: 1. testing of the implementation of procedures in the formation of laws, both in the discussion and in making decisions on the draft law into law; 2. assessment of the form, format, or systematics of the statute; 3. testing with respect to the authority of the institution, which makes decisions in the process of forming laws; 4. testing of other things that are not included in material testing. in the main application submitted, the applicant in the constitutional court decision number 91 stated that, the job creation law did not meet the provisions in the formation of laws based on the 1945 nri constitution and law no. 12 of 2011, so that in this formation it was considered a formal defect or procedure, because: 9 1. this job creation law is not appropriate and violates the compositional format in the regulations in law number 12 of 2011; 2. this job creation law is contrary to the principles in the formation of laws and regulations, in the form of the principle of clarity in objectives, the principle of usefulness and usefulness, the principle of clarity of formulation and the principle of openness; 3. changes to the content material after the joint approval with the dpr and the government, which is contrary to article 20 paragraph (4) of the 1945 nri constitution and article 72 paragraph (2) of law number 12 of 2011 concerning the establishment of laws and regulations. the establishment of a law must guarantee meaningful participation, it needs more than just the constitutional court to control the formation of laws, the constitutional court's decision can cause legal uncertainty, and the best way for the government to improve the job creation law is to repeal it first. in testing the job creation law, it is indeed colored by various differences of opinion by constitutional judges, so it is important 9 putusan mahkamah konstitusi nomor 91/puu-xviii/2021. http://creativecommons.org/licenses/by-nc-sa/4.0/ 532 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia to straighten out some of the constitutional court's considerations in the formal testing of the job creation law as follows: 1. in relation to the grace period for applying for formal examination, based on the constitutional court decision number 27/puu-vii/2009 mentioned in the constitutional court decision number 91, which is for 45 days from the time the law is contained in the state gazette. the constitutional court has a deadline to conduct an examination of no more than 60 days from the time the case is heard. the formal testing case of the job creation law, which was registered on november 24, 2020 and was only read on november 25, 2021, was due to the consideration of the constitutional court that the test of the job creation law was in the trial period, so it had to wait for the case to be examined by the constitutional court. 2. the use of the omnimbus law method in the formation of the job creation law was considered by the constitutional court that: 1) in addition to using the 1945 nri constitution as the basis of the state, law number 12 of 2011 concerning the establishment of laws and regulations is used as a benchmark in conducting formal tests, as stated in the opinion of the constitutional court in its decision number 27/pu-vii/2009. therefore, in the preparation of laws, it must be in accordance with rules or procedures and methods that are certain, standard, and in accordance with standards that can bind all authorized institutions. 2) there is a vagueness in the form of the job creation law which is reviewed in terms of giving titles, where the procedure for giving this title has also been regulated by default in appendix i to law number 12 of 2011 concerning the establishment of laws and regulations, both in terms of new laws, changes and those that have been repealed. 3) the formulation of the job creation law raises confusion because as a changing law, there is a separate formulation of principles, objectives and scopes so as to cause overlaps that http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 533 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia cause uncertainty or confusion by readers in understanding the job creation law, and the constitutional court considers the principle of clarity and problem formulation to be appropriate and qualified in accordance with the provisions of the laws and regulations. 4) in the job creation law, it is not justified in the name of the length of time in forming the law, this is to reduce deviations in standard and standard procedures for this purpose. basically, in a constitutional democratic state, efforts to achieve goals cannot be made by violating definite principles and ordinances and must meet the standards in the formation of laws. 5) the omnimbus law method, which is not contained in the law forming law, the constitutional court affirmed that it is related to the technique or method used by the framers of the act as an effort to simplify the act and to eliminate the overlapping of the act. in accelerating the process of forming an act, it is not a question of constitutionality as long as the methods used are appropriate and appropriate in accordance with definite guidelines and meet the standards. this omnimbus law method cannot be used before it is adopted in the law on the formation of laws and regulations. when compared to law number 32 of 2004 concerning local government and law number 7 of 2017 concerning general elections, according to the constitutional court, the character of the omnimbus law method in the job creation law is different from the formation of the two laws. it can be seen from the number of laws that were simplified to 78 laws with different content materials and all these laws were combined into one, except for the articles amended in law number 11 of 2020.10 10 indrayana, denny. “polemik dibalik putusan mk terkait uu cipta kerja”. makalah. disampaikan dalam diskusi publik perhimpunan mahasiswa katolik republik indonesia, melbourne, australia. tanggal 6 desember 2021. http://creativecommons.org/licenses/by-nc-sa/4.0/ 534 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. there was a change in the content material after the approval of the draft law, which was not just a technical nature of writing, including any errors in its citation, the constitutional court gave the opinion that there were at least 8 articles that were linked on pages 151-152, 388, 390, 391, 374, 424, 492-494, and which underwent sbstansial changes between the manuscripts before and after ratification. the constitutional court also found some errors in the reference to the article in the job creation law, which is contained in paal 6 of the job creation law which refers to article 5 and should be used as a reference in article 4 letter a. the constitutional court also held that this proves that there has been a citation error in referring to the article so that it is not in accordance with the principle of "clarity of formulation" which states that every law must meet the technical requirements preparation of laws and regulations, systematics, choice of words or terms, as well as clear and easy-to-understand legal language so as not to cause various kinds of interpretations in its implementation. 4. related to the job creation law which is contrary to the principle of clarity of purpose, the principle of usefulness and usefulness, the principle of clarity of formulation, and the principle of openness. the constitutional court gave an opinion that there had been a legal fact that the procedures for the establishment of the job creation law did not meet the principle of clarity of purpose and the principle of clarity of formulation. because the norms of article 5 require the fulfillment of all principles cumulatively, with the non-fulfillment of only 10s, the provisions of article 5 of the law on laws and regulations are neglected by the process of forming laws and regulations. accordingly, according to the court it is irrelevant to further consider the petitioners' pleadings, except with regard to the principle of openness. with the consideration given by the constitutional court which stated that the process of forming the job creation law did not meet the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 535 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia provisions under the 1945 nri constitution, so it was declared a formal defect. however, taking into account that there are also big goals to be achieved, with the enactment of law number 11 of 2020 concerning job creation and many implementing regulations have been issued and many have even been implemented and practiced. thus, in order to avoid any legal uncertainty and the great impact that will be caused, the constitutional court must declare it conditionally unconstitutional. this is because the constitutional court must adjust between the conditions for the formation of a law and must be met to ensure the elements of legal certainty, expediency and justice, with the strategic objectives of the establishment of a quo law11. against the constitutional court decision number 91/puuxviii/2020, there were 4 constitutional judges who expressed dissenting opinions with the decision (dissenting opinion). the four constitutional judges, namely: (a) constitutional judge arief hidayat; (b) constitutional judge anwar usman; (c) constitutional judge manahan m.p. sitompul; and (d) constitutional judge daniel yusmic p. foekh. the existence of differences of opinion that arise between constitutional judges (5 people to 4 people), shows that the decision is not unanimous among constitutional judges and tends to be ambiguous or multi-interpretation. responding to the constitutional court decision number 91/puuxviii/2020, the government through the coordinating minister for economic affairs, provided an explanation and response through a press release as follows:12 11 asas-asas hukum formal yang meliputi: (1). asas tujuan yang jelas; (2). asas organ/lembaga yang tepat; (3). asas perlunya pengaturan; (4). asas dapatnya dilaksanakan; (5). asas konsensus. asas-asas hukum material yang melingkupi: (1). asas tentang terminologi dan sistematika yang benar; (2). asas tentang aturan yang dapat dikenali; (3). asas perlakuan yang sama dalam hukum; (4). asas kepastian hukum; (5). asas pelaksanaan hukum sesuai keadaan individual. i.c van der vlies, buku pegangan perancang peraturan perundang-undangan, direktorat jenderal peraturang perundang-undangan, jakarta, 2005, pp. 238-307 12 asshiddiqie, jimly. 2020. pengujian formil undang-undang di negara hukum. jakarta: konpress. http://creativecommons.org/licenses/by-nc-sa/4.0/ 536 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. the government respects and complies with the decision of the constitutional court and will implement law number 11 of 2020 concerning job creation (job creation law) as well as possible in accordance with the decision of the constitutional court. 2. the decision of the constitutional court has stated that law number 11 of 2020 concerning job creation remains constitutionally valid until improvements are made to its formation in accordance with the grace period set by the constitutional court, which must be repaired no later than 2 (two) years after the decision is read. 3. the decision of the constitutional court also stated that the government should not issue new regulations of a strategic nature until improvements are made to the establishment of law number 11 of 2020 concerning job creation. thus, the laws and regulations that have been enacted to implement the job creation law still remain in force 4. furthermore, the government will immediately follow up on the decision of the constitutional court in question through the preparation of improvements to the law and implement as well as possible the directives of other constitutional courts as referred to in the decision of the constitutional court. ii. the government's efforts in improving the management system for the establishment of laws and regulations after the constitutional court decision in the job creation law after the emergence of debate among the public and academics from the implications of the constitutional court's decision on 12 applications from the copyright law in november last year, there was only 1 case granted http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 537 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia by the constitutional court concerned in the formal test. one such case is inadmissible because the petitioner cannot show his legal standing, while the other 10 cases related to material testing cannot be accepted because the application for loss of object, because the constitutional court has declared the job creation law to be unconstitutional. denny indrayana in his article explained that the constitutional court decision there are 5 ambiguities that occur, as follows13: 1. the job creation law which is expressly stated to be contrary to the 1945 constitution but is still given room to be valid for 2 years, for example as published by the implementing rules and has implemented. however, theoretically the constitutional court should firmly overturn the job creation law and the reason for improvement cannot be used as an excuse for a law that is declared to violate the constitution to remain in effect. 2. of the 12 decisions related to the job creation law, the constitutional court stated that 10 of them lost their objects because the job creation law had been declared conditionally unconstitutional. 3. the constitutional court decision number 91/puu-xviii/2020 stated that the law was still in force while 10 other constitutional court decisions related to the same law stated that the application was not accepted. even though the constitutional court has declared that the job creation law is still valid with a 2-year delay for improvement, but it cannot be tested for substance. by deciding not to accept all material tests, it means that the constitutional court's decision has become the basis for the occurrence of 'constitutional impunity' for norms in the job creation law that have the potential to violate the 1945 constitution. 4. the constitutional court's ruling raises multiple interpretations on whether it can still be implemented or not. there are two camps that 13 denny indrayana, “lima ambiguitas putusan mk terkait pembatalan uu cipta kerja”, 26 november 2021, https://www.integritylawfirm.id/2021/11/26/limaambiguitas-putusan-mkterkait-pembatalan-uu-cipta-kerja/, diakses pada 22 desember 2021 http://creativecommons.org/licenses/by-nc-sa/4.0/ 538 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia differ in opinion. one party views that the job creation law can still be implemented in two years while the other party believes that the job creation law should no longer be implemented at all. 5. in the constitutional court decision number 91/puu-xviii/2020, the constitutional court still looks very firm in implementing the formalities of lawmaking, including criticizing the lack of space for public participation in the formation of the job creation law. however, the constitutional court did not apply the same standards when formally testing changes to the kpk law and changes to the mineral and coal law, which were also super lightning and actually eliminated public participation.14 in a constitutional democratic state, it is inseparable between the goals to be achieved in the right way in achieving those goals. this method of omnimbus law cannot be used as long as it has not been adopted in the law on the formation of legislation. with the opening of space to make changes to the job creation law, it means technical or methods designed to always follow or be adaptive to the development of needs, including if there will be simplification of laws and regulations in any way or method, including the omnimbus law method as a draft law that has been approved with the dpr and the president. the formation of laws with processes and mechanisms that actually close or distance the involvement of community participation to participate in discussing and debating their contents, it can be said that the formation of these laws violates the principle of people sovereignty.15 to avoid a greater impact on the enactment of law number 11 of 2020 concerning job creation, the 2-year constitutional court stated: 14 dodek, adam m., “omnibus bills: constitutional constraints and legislative liberations”, ottawa law review, vol. 48, no. 1, 2017. 15 andryan. “implikasi putusan hak uji materiil di mahkamah agung terhadap legalitas pimpinan dewan perwakilan daerah republik indonesia”. jurnal penelitian hukum de jure. vol. 18. no. 3. tahun 2018 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 539 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. implementation of law number 11 of 2020 concerning job creation relating to matters of a strategic nature and has a broad impact to be suspended first; 2. it is not justified to form new implementing regulations; 3. it is also not allowed for state organizers to make strategic policies that can have a broad impact based on the norms of law 11/2020 which has been formally declared conditionally unconstitutional. the decision of the constitutional court number 91/puu-xviii/2020 is a new model variant which therefore contains conditional unconstitutional amar in the case of formal testing of a 1945 law of the republic of indonesia. the constitutional court also gives mandates and a quo ruling is that are actually aimed at the framers of the law, not just the president. therefore, this is the responsibility of the president, the dpr and certain things as well as the dpd. an in-depth study of the consequences of changing or replacing the job creation law as a result of the constitutional court decision number 91/puu-xviii/2020 on various implementing regulations of the job creation law is needed that has been created. then, a more in-depth study of the concept and pattern of restructuring and reformulation of the job creation law is needed in accordance with the mandate and decision of the job creation law, furthermore, it is also necessary to conduct an in-depth study of the potential regulation of the omnimbus law method in the formation of laws and regulations through changes or replacements from law number 12 of 2011 or with a presidential regulation system16. therefore, the government may be able to make efforts to improve the system of forming laws and regulations after the constitutional court decision which states that the job creation law is conditionally unconstitutional, such as: 1. immediately draft a new bill through the open cumulative list route; 16 yunan hilmy, 2021, kajian awal mengenai implikasi putusan mk no. 91/puu-xviii/2020 terhadap upaya reformasi regulasi, bphn: pusat analisis dan evaluasi hukum nasional badan pembinaan hukum nasional kementerian hukum dan ham ri http://creativecommons.org/licenses/by-nc-sa/4.0/ 540 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. restructure the job creation law in accordance with the rules or procedures in the formation of laws and regulations, namely law number 12 of 2011; 3. include the concept of regulating the omnimbus law method in changing the replacement of law number 12 of 2011 or regarding the presidential regulation. conclusion the constitutional court is one of the institutions that has the authority to test the law against the 1945 constitution of the republic of indonesia, both in substance and in the content, material contained in the law in accordance with the provisions of the laws and regulations. in the science of legislation, testing of the constitutionality of laws can be carried out materially or formally. formal testing of the job creation law that is currently carried out on conformity in the stages of forming laws and regulations, because theoretically the law is declared defective then it can be undone in its entirety. but in its implementation, there are several constitutional court rulings that declare the application inadmissible, rejected, granted, constitutional or conditionally unconstitutional. as in the constitutional court decision number 91 / puu-xviii / 2020 which was declared conditionally unconstitutional because it did not meet the procedure in the formation of laws and regulations. although the judgment was declared unconstitutional, the judgment was given a grace period of 2 years for remedial in accordance with the ordinance or methods in the formation of legislation. references andryan. “implikasi putusan hak uji materiil di mahkamah agung terhadap legalitas pimpinan dewan perwakilan daerah republik indonesia”. jurnal penelitian hukum de jure. vol. 18. no. 3. tahun 2018 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 541 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia anggono, bayu dwi. 2020. pokok-pokok pemikiran penataan peraturan perundang-undangan di indonesia. jakarta: konpress. asshiddiqie, jimly. 2020. pengujian formil undang-undang di negara hukum. jakarta: konpress. asshidiqie, jimly. 2006. perihal undang-undang. jakarta: konstitusi press. dodek, adam m., “omnibus bills: constitutional constraints and legislative liberations”, ottawa law review, vol. 48, no. 1, 2017. hamidi, jazim, dan kemilau mutik. 2011. legislatif drafting. yogyakarta: total media. indrati, maria farida. “omnibus law, uu sapu jagat?”. dalam harian kompas, 4 januari 2020. indrati, maria farida. 2007. ilmu perundang-undangan: proses dan teknik penyusunan. yogyakarta: kanisius. indrayana, denny, “lima ambiguitas putusan mk terkait pembatalan uu cipta kerja”, 26 november 2021, https://www.integritylawfirm.id/ 2021/11/26/lima-ambiguitasputusan-mk-terkait-pembatalan-uu-ciptakerja/, diakses pada 22 desember 2021 indrayana, denny. “polemik dibalik putusan mk terkait uu cipta kerja”. makalah. disampaikan dalam diskusi publik perhimpunan mahasiswa katolik republik indonesia, melbourne, australia. tanggal 6 desember 2021. marzuki, peter mahmud. penelitian hukum. edisi revisi. cetakan ke-14. jakarta: prenada media group, 2019. putusan mahkamah konstitusi nomor 27/puu-vii/2009. putusan mahkamah konstitusi nomor 79/puu-xvii/2019. putusan mahkamah konstitusi nomor 91/puu-xviii/2020. topane gayus lumbuun, “tindak lanjut putusan mahkamah konstitusi oleh dpr ri”, jurnal legislasi nasional, vol 6 no 3, september 2009 undang-undang nomor 11 tahun 2020 tentang cipta kerja undang-undang nomor 12 tahun 2011 tentang pembentukan peraturan perundang-undangan. undang-undang nomor 8 tahun 2011 tentang perubahan atas undangundang nomor 24 tahun 2003 tentang mahkamah konstitusi. indonesia. undang-undang nomor 24 tahun 2003 tentang mahkamah konstitusi. yunan hilmy, 2021, kajian awal mengenai implikasi putusan mk no. 91/puu-xviii/2020 terhadap upaya reformasi regulasi, bphn: pusat http://creativecommons.org/licenses/by-nc-sa/4.0/ 542 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia analisis dan evaluasi hukum nasional badan pembinaan hukum nasional kementerian hukum dan ham ri acknowledgment none funding information none conflicting interest statement the author stated that there is no conflict of interest in the publication of this article. publishing ethical and originality statement the author stated and declared that all sources cited in this work adhere to the fundamental norms of scientific quotation, and that this work is entirely original and has never been published in any format or media or been accepted for publication in any journal. about author(s) danang aji saputra is master of laws student at the faculty of law universitas negeri semarang. he is also working as budget board of the regional house of representatives of batang regency period 2019-2024 from golkar party (partai golkar). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 481 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 4, october 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: february 17, 2022 revised: july 18, 2022 accepted: september 17, 2022 available online since: october 31, 2022 how to cite: alhashemi, azab alaziz. “an analytical look at the importance of a legal organization for the international electronic commerce arbitration body: comparative study between a draft law on arbitration in the uae and the french and english laws”. journal of law and legal reform 3, no. 4 (2022): 481-520. https://doi.org/10.15294/jllr.v3i4.60848. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article an analytical look at the importance of a legal organization for the international electronic commerce arbitration body: comparative study between a draft law on arbitration in the uae and the french and english laws azab alaziz alhashemi assistant of secretary general for the arab federation of engineering arbitration, egypt  azabalazizalhashemi@yandex.com abstract this study provides theoretical and practical viewpoints regarding the law required to be applied to proceedings in the field of international commercial arbitration. the emirati arbitration has been compared under http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i4.60848 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 482 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia uae, french, and english laws. the regulations, rules and procedures of international arbitration bodies, institutions and chambers have also been undertaken in this study. this study presents the subject that was not covered from theoretical and practical viewpoint. by discussing the international electronic commerce arbitration body, this study provides insights for researchers, arbitrators, lawyers, judges with the emphasis given to all the english and french arbitration act along with the rules and regulations of national and international arbitration institutions and chambers. similarly, the importance of this issue lies in the importance of arbitration as an alternative means to litigation to settle disputes. when the role of the arbitration board arises from the agreement of the parties to the arbitration dispute and from what is stated in the arbitration contract or arbitration document in the rules that obliges the parties to the arbitration to sign an arbitration document at the beginning of the proceedings. therefore, proceedings begin because a party to the arbitration dispute expressed its desire to settle the dispute by arbitration, i.e., from the time of the request for arbitration until the award is issued in its final form. keywords: comparison, electronic arbitration, french law, international disputes, uae law introduction electronic commerce is defined as commercial activities of products and services that are carried out using information technology (it). it serves as an international network, and an electronic data interchange to make commercial transactions, whether between individuals or between individuals and organizations, whether locally or internationally. it should be noted that in the previous definition, the conduct of commercial activities is not limited to those that are held through the internet only, as http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 483 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia there are other similar networks such as, international labor organization (ilo) and unix to unix network (uunet), which provide new markets for commerce and consumers who wish to contract electronically. whereas other individuals may also rely on the definition of an electronic contract which states the criterion for the status of parties held in a legal relationship that constitutes it. according to the definition, electronic commerce is defined as ‘to carry out all or part of the commercial transactions of goods and services that take place between a business or between a trader and a consumer, using information and communication technologies.’ 1 the standards to clarify the concept of e-commerce contracts of the case law varied, leading to the difficulty of establishing a comprehensive standard for the definition of electronic contract, the diversity in the electronic contracts, the complexity of this field, and the rapid development in the field of information along with the increase in internet connectivity. international commercial arbitration has progressively become a renowned approach for the resolution of electronic commerce disputes because of its global, inexpensive, and speedy nature. on the contrary, this type of arbitration might experience several doctrinal and consumer issues that threaten the legal authenticity of its processes in the digital world. therefore, this study intends to examine whether or not there are any legal barriers for using online arbitration or to the identification and enforcement of commercial arbitral awards throughout the existing legal framework in the uae. this study sheds light on the issues associated to the international commercial arbitration which includes (1) lack of specialized literature dealing with material related international commercial arbitration; (2) lack of sufficient legislative regulation for international commercial arbitration in the uae law, and lack of absence of arbitral awards rendered in legal regulation of e-commerce. a comparative analytical method has been adopted to cover the following topics. 1 unictral model law on electronic commerce adopted by the united nations commission on international trade for the year (1996), (2010). http://creativecommons.org/licenses/by-nc-sa/4.0/ 484 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia first requirement: legal regulation of e-commerce, second requirement: the arbitration board applies the applicable law according to the law of the will. third requirement: the position of international treaties and standing bodies on the discretion of the arbitral tribunal to determine the applicable law. fourth requirement: the position of legal systems on the discretion of the arbitral tribunal to determine the applicable law, and fifth requirement: discretion of the arbitral tribunal to determine the law to be applied in accordance with the provisions of arbitral tribunals. discussion i. first requirement: legal regulation of e-commerce the first requirement is based on the legal regulation of e-commerce, which is discussed by shedding light on the issues associated to the legal regulation of e-commerce, the international regulation of e-commerce, legal regulation electronic transaction issues, justifications for electronic transactions, and control on the use of electronic transactions. a. issues relating to the legal regulation of e-commerce there are several issues related to the legal regulation of e-commerce. some of them includes, 2 1. legal regulation of electronic contracts 2. legal regulation of the digital signature 3. legal regulations for the registration of websites 4. legal organization for domain name and address registration 5. legal regulations for the filing, registration and certification of electronic documents 2 uncitral electronic commerce act of (1986) http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 485 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 6. legal regulations to pay for goods and services via the internet online payments 7. legal regulation of the delivery of goods and services in electronic transactions (delivery of goods and services) 8. legal regulation of securities transactions via the internet (stock market transactions) 9. fiscal and customs legal regulation of electronic transactions (taxation and customs) b. the international regulation of electronic commerce the international agreements have legalized between themselves and other countries to regulate electronic commerce as a means of selling and purchasing goods. this regulation is based on marketing terms, promotion, conclusion of contracts, method of payments, formal and material provisions governing procurement and dispute resolution in a specific way. in addition to model projects by international organizations governing electronic commerce between countries and in the presence of the world trade organization (wto) and its specialized agencies, international legal regulation of electronic commerce is centralized. c. the internal regulation of e-commerce to develop an increasing flow of e-commerce, whether among citizens of one country or between citizens of two different states, many countries have organized or began to organize e-commerce in a number of legal ways. developing specialized techniques some countries or states within those countries have enacted specialized legislation, for example, to regulate electronic commerce, to regulate communications over the internet and to follow electronic signature systems. however, to strengthen the developments in ehttp://creativecommons.org/licenses/by-nc-sa/4.0/ 486 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia commerce, certain amendments are required in the current legislations. this further pinpoint the need to identify necessary changes made by countries to their existing laws which includes civil law, the law of evidence, and other commercial laws related to banking, credit, money market, real estate registration and documentation laws, criminal laws, tax and customs laws, etc., that are associated to the regulation of electronic commerce issues. the objective of the development of a law on electronic commerce the aim of the electronic commerce act is to confirm the validity of transactions carried out through electronic media, which is used to edit, transfer or store data and contracts related to such transactions. in order to achieve this objective, the electronic commerce law focuses mainly on establishing legal principles that allow the recognition of electronic publishers as a substitute for traditional paper-based media. it also helps in recognizing the electronic signature and equality between electronic publishers and the electronic signature in terms of argument in legal evidence and between paper publishers and the traditional signature that is on paper. e-commerce can be seen as a multidimensional concept and can be emerged in six forms. perhaps the most important of these forms is e-commerce between business of different establishments and between these establishments and consumers. b2b e-commerce it is one of the oldest types of e-commerce and is designed to deal with merchants and other b2b channels. this type of exchange takes place between different business entities, in which the internet is used to submit purchase orders to suppliers and receive invoices in exchange of purchase requisitions to other business units. this leads towards the exchange of data and information until an agreement is reached between them, at that time both parties can conclude an electronic contract for the supply of goods and services, receive invoices and make payments electronically. as http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 487 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia for the supply, it may be electronic or physical, depending on the agreement or the nature of the goods and services.3 b2c e-commerce it is designated by the symbol (b2c) and is used by the customer to purchase products and services via the web. there are internet shopping malls or virtual malls for providing all kinds of goods and services, and this form is used by the commercial facility to access new markets. consumer electronic commerce (c2c) this type of e-commerce takes place between two consumers via the internet, and this group of people buys or sells directly on the internet and then resell their products to other consumers to attain high profits via specific websites such as ouedkniss and al-waseet. these websites allow many users to display their goods, products, real estate and other property for online sale and trade purposes. business-to-administration (b2a) electronic commerce it covers all transactions that take place between business units and government departments, such as the united states and canada post procedures, regulations and transaction forms on the internet so that businesses can view them online and complete the transaction process electronically without having to deal with a government office. electronic commerce between consumers and government this type of form has recently begun to spread in many countries. for example, in malaysia an individual can pay taxes electronically as in malaysia and obtain a driver’s license in dubai. it is intended to allow the citizen to conduct transactions with the management via the internet. in 3 united nations commission on international trade law. uncitral model law on electronic signatures with guide to enactment, 2001. united nations publications, 2002. http://creativecommons.org/licenses/by-nc-sa/4.0/ 488 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this way, it would increase the efficiency of the public sector and save citizens’ time and effort. it should be noted that this type includes tenders and call-ups issued by the government for services provided to citizens electronically. e-commerce this is green e-commerce within intra-organizational trade and includes international organizations that use technology to communicate between its branches, divisions or subsidiaries. for example, a computer in one of the companies is pre-programmed as if the existing goods in the company were diminished. for a certain amount, the program automatically activates and sends an e-mail to the main computer located in the warehouses of the company via an internal network that includes sending goods equal to the decreased amount and quantity. the main power is on receiving the message and giving an order appears on the screen to send the ordered goods, with instructions is another electronic calculation of work compensation between the company and a warehouse of the branch to reimburse the value of disbursed goods. e-commerce tools e-commerce has many forms and tools, including tools to display goods and services, to deliver goods and for preand post-sales services. however, the two most important elements include: 1. tools for electronic payment systems such as electronic funds transfer (eft), inter-bank transfers, and magnetic cards such as smart cards, mondex, e-purse, digital money, e-money and electronic payment tools. these tools are included in the scope of implementation of electronic contracting. 2. business exchange tools, i.e., edi, e-mail and electronic contracts. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 489 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia d. legal regulation of electronic transaction issues the most important objective for the legal organization of electronic commerce relations and transactions is to achieve justice and its right, which requires the need to provide legal protection to all dealers in the field of electronic commerce and to meet the challenges facing its organization and development. at the forefront of these challenges are the lack of recognition of these transactions, lack of authenticity of their documents, controls on the use, confidentiality and security of electronic information, and the legal value of an electronic signature. 4 these problems are addressed in the context of the united nations model law on electronic commerce of 1996 and model law on electronic signatures of 2002. several other models were also developed such as the tunisian law on trade and electronic commerce no. 83 of 2000 (1), the jordanian law on electronic transactions no. 85 of 2001, and the law of emirate of dubai on electronic transactions, trade no. 2 of the united arab emirates of 2002, and the egyptian law on electronic signature no. 15 of 2004. justifications for electronic transactions there is no doubt that one of the most important challenges facing electronic transactions is the issue of denying their authenticity or its strength to prove or to question the validity of data or provided signatures. the laws stipulate that there is no distinction between electronic writing and other forms of traditional writing, which is identical to what the law approves for electronic signatures in terms of authenticity. the electronic signature has the authenticity prescribed for signatures in the provisions of law on evidence in civil and commercial matters when it has been made in accordance with the conditions established and stipulated in the law. in order to obtain this legal effect i.e. electronic writing and electronic signature, it is necessary to fulfill the conditions and controls required by law. in the report of that decision, legislators referred to the model law on 4 uncitral (2001) http://creativecommons.org/licenses/by-nc-sa/4.0/ 490 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia electronic commerce and the model law on electronic signatures. article 5 of the model law on electronic commerce approved the legal effect of electronic data, including their authenticity and accessibility. article 9 of the form also prohibits the denial of the authenticity of an electronic data message in evidence simply because it was issued in that form or because the person failed to provide the original.5 the third article of the model law on electronic signatures also approved the authenticity of signature and its legal effect whenever the requirements of the first paragraph of article six of the form were met, as well as the requirements of applicable law. the tunisian law on electronic commerce approved the authenticity of electronic contracts in accordance with the first chapter of that law, which stipulates that electronic contracts must have a written contract system in terms of the expression of will, legal effect, validity and enforceability in a manner that is not contrary to the provisions of that law. based on this text, electronic contracts will apply to all electronic contracts in relation to all possible legal effects. it is the same as that determined by the jordanian electronic transactions act, the first paragraph of article seven of which stipulates that electronic records, electronic contracts, electronic messages and electronic signatures shall be regarded as products of the same legal effects resulting from written documents and written signatures in accordance with the provisions of the legislation in force in terms of binding them to their parties or their power to evidence. this is the same as required by the law of the emirates of dubai concerning emirate e-commerce transactions and the bahraini e-commerce law, which establishes electronic records with the authenticity prescribed in the proof of cognitive documents. according to the fifth article, it was not permissible to deny the legal effect of the electronic signature in terms of its validity and the possibility of working according to it, simply because it was received in whole or in part in electronic form. if the law requires the signature of a document or the organization of an effect, it was legally 5 uncitral law on international commercial conciliation with guide to enactment and use 2002 united nations publications, new york (2004) http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 491 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia exempt from signature. therefore, if an electronic record was used in this regard, the electronic signature contained therein satisfies the requirements of this act in accordance with article vi. this is the same as required by the english and french electronic signature act issued in 2002, or the u.s. electronic signature act issued on june 30, 2000. e. controlling the use of electronic transactions it is difficult to recognize the absolute authenticity of electronic transaction documents and signatures on them without adopting a system that guarantees the authenticity and integrity of these documents and signatures, and to verify the identity of resellers and the confidentiality and privacy of their information. among the controls and conditions necessary for the use of authentic electronic writing as evidence, three objectives were achieved: first: the electronic signature is linked to the person who signed the signature alone. second: the authority of the signatory alone is exclusive to the electronic medium. third: the possibility of detecting any modification or alteration of the electronic publisher's data or the electronic signature. both laws dealt with different forms of electronic commerce and electronic signatures in order to establish controls for the enjoyment of genuine electronic transactions. for the model law on electronic commerce, article 7 requires the use of a system or means to verify the signature of resellers through electronic means, its conformity with their actual signature and their acceptance of data or information received in terms of messages exchanged, and left model law for countries developing legislation on electronic commerce.6 the question of defining such a system or means and formulating its method of work is to ensure its impartiality and accuracy in the performance of the work which 6 uncitral law on international commercial conciliation with guide to enactment and use 2002 united nations publications, (new york 2004) http://creativecommons.org/licenses/by-nc-sa/4.0/ 492 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia requires the approval of a neutral party as a court or arbitrator. article seven clarified that the system or means used to verify dealers by electronic means and the conformity of their signatures must be appropriate for the purpose of the exchange of messages or their transmission by electronic means, taking into account all the circumstances, including the agreement or understanding reached by the parties. these rules leave each country free to choose the appropriate system to verify the validity of electronic transactions and to match signatures of its customers and its relationship to their population, as these rules were developed to guide the development of national legislation. article vi of the electronic signature model required that, for an electronic signature to have legal effect, its authentication should be performed in a reliable manner consistent with the purpose for which the electronic data message was issued or communicated. it also showed some instances where the signature was considered reliable7, such as: 1. signature creation data must be linked to the person who signed the signature and not to others in the context in which they are used. 2. the signature creation data are subject to the control of the signatory and not of others at the time of signing. 3. it is possible to discover any changes in the electronic signature after it has been made. 4. if the purpose of requiring the signature to be legal, is to confirm the integrity of data on which the signature was placed, however any change in that data after the signature is detectable. 5. since these rules do not preclude any party from verifying whether or not the electronic signature is otherwise valid. article 8 of that model law obliges those who sign the electronic signature that has legal authority to exercise due diligence to avoid using an unauthorized electronic signature. article ix also requires the authentication service provider to exercise due diligence to ensure the control and completeness of all devices and tools used in connection with 7 uncitral rules on electronic commerce, revised in (2010) http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 493 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia electronic certificates or its time period and to facilitate customers to verify the authenticity of those certificates and the corresponding signatures which were made at the time of issuance of the certificate. tunisian law has also established a system to verify the validity and integrity of electronic transactions, chapter v of which stipulates that anyone who wishes to sign an electronic document may create his electronic signature through a reliable system whose technical specifications are set by a decision of the minister in charge of communications. in addition, any person who uses an electronic signature system in accordance with chapter six of the act must take precautions to prevent any illegal use of encryption elements or personal equipment related to his signature. it informs the electronic authentication service provider for any illegal use of his signature and guarantees the reliability of all data declared by a service provider. electronic authentication and for all parties who have been asked to trust his signature. chapter eleven of the law obliges any natural or legal person wishing to carry out the activity of an electronic authentication service provider to obtain a prior license from the national agency for electronic certification, such that the legislator decided to create in accordance with chapter eight as an institution following legal personality and financial independence based in tunisia and not having administrative capacity and subject to commercial law. it was responsible for licensing the electronic authentication service provider’s business and monitoring its compliance with the provisions of the law, specifying the specifications of the signature, compliance and audit system, as well as certain other tasks, including the issuance, issue and maintenance of electronic certification certificates. jordanian law required that the electronic record or electronic signature be authenticated, otherwise it would have no authority (in accordance with article 22 of the law), and the electronic record was considered to be documented in accordance with article 30 if it was made in accordance with authenticated or commercially acceptable documentation procedures agreed between the parties to the relationship. an electronic signature was http://creativecommons.org/licenses/by-nc-sa/4.0/ 494 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia considered authenticated if it was distinguished solely by its affiliation with the person in question. it was sufficient to identify the person as its owner and was created by means of the person under its control, with a link to the record which is associated to it in a manner that does not allow the record to be altered after it is signed without effecting any alteration to the signature. according to section 32 of the act, an authenticated electronic signature was deemed to be issued by the person to whom it was attributed and to have been created by him or her to demonstrate his or her agreement with the contents of the bond and that the authenticated electronic record has not been changed or modified since the date of his or her authentication procedures. the law of the emirate of dubai also requires that the electronic signature report must be protected or enhanced, while article 20 of the law stipulated that: a signature shall be considered to be a protected electronic signature if it can be verified by the application of court documentation procedures, as provided in this law or if it is commercially reasonable and agreed upon by the parties, that the electronic signature was at the time when: 1. it is unique to the person who used it. 2. it is possible to prove the identity of that person. 3. it is under the full control of that person, either with respect to its creation or the means of its use at the time of signing. 4. it is linked to the electronic message associated to it or in a way that provides reliable confirmation of the security that is no longer protected. in the case of electronic information, bahraini law requires that the recipient must be able to access and retrieve it later, whether by dissemination, printing or otherwise, and that the recipient must be able to save the information.8 the following elements must be taken into account when assessing the authenticity of the electronic recording of evidence when a dispute arises over its security: 8 united nations commission on international trade law. uncitral arbitration rules (2010). (2011). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 495 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. degree of confidence in the manner, in which the electronic recording was created, stored or transmitted. 2. degree of confidence in the manner in which the electronic record was signed. 3. degree of confidence in the method used to maintain the integrity of the information contained in the electronic record. 4. any other issues related to the integrity of the electronic record. ii. the second requirement: the arbitration board applying the law of wills the emirati proposal was in favor of the arbitration law on the principle of consent to arbitration from its inception and during its proceedings. accordingly, in this case, the arbitration committee was bound to respect the will of the parties to the arbitration dispute and not to violate the provisions of arbitration in the course of its agreement. this is due to the fact that the source of arbitration served as the will, as for state legislators and drafters of international agreements, will is an important and plays a decisive role in determining the applicable law.9 most case laws were supported this direction, as held in the case of international commercial arbitration in the sense the arbitral tribunal may determine the rules of procedure for itself which deems appropriate to the circumstances of the arbitration dispute, while respecting the fundamental guarantees of the dispute. in view of the broad power granted to the parties with respect to the choice of procedural rules governing the arbitration process, it has been noted that the parties are entitled to exercise this freedom, in the manner they deem appropriate, or in the following ways: 9 egyptian civil law published on 9 ramadan 1367 accompanying (1948) http://creativecommons.org/licenses/by-nc-sa/4.0/ 496 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia first: in their agreement, the parties may begin the process of defining the arbitration procedures by disclosing among themselves and following the procedures through legal means in the event of a dispute between them. second: the parties may agree to entrust this task to the arbitration board on their behalf, i.e. to refer to the arbitration board all matters relating to the arbitration proceedings, irrespective of the details of those proceedings. the parties consider that the measures taken by the arbitration board are decided by their will at the outset. third: the parties may agree to follow procedures stipulated in a specific national law, and it is conceivable that the parties to the arbitral dispute choose a specific national law to govern the arbitration proceedings for many purposes, including the belief of the parties that such procedures are more appropriate for arbitration than others considering the simplicity of procedures and their distance from complexity. the parties may choose the same law to rule on the subject matter of the dispute, and they may choose the same law to apply to the proceedings. rather, it is possible for the parties to the arbitration dispute to agree to submit the arbitration, to procedures that were stipulated in a repealed law, and it is therefore possible to agree to submit the arbitration proceedings to the procedures and time limits that were provided, despite the repeal of these texts and the enactment of the arbitration law. fourth: the parties choose the rules of procedure from a body of national laws and regulations of regional or international arbitration bodies, so that they are a mixture of all of them. the parties to the arbitration dispute sometimes use this method in order to arrive at procedures that are quick and far from complicated, for example the rule for forming a body arbitration. the parties to an arbitration dispute may see it taken from the english arbitration act because they consider it most appropriate. the rules for arguing before the arbitration panel may choose it from the french arbitration act and so on, until the rules of procedure were completed. these are represented as the forms of expression of will in the field of the law applicable to international commercial arbitration proceedings. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 497 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia it is called “absolute arbitration” or “arbitration without law” and this designation was derived from the fact that it does not adhere to a legal system or certain procedural rules but rather is a mixture of all the laws and rules chosen by the parties. the question here is whether implicit will has a role in determining the law to be applied to arbitration proceedings, or is it limited to the explicit will? in order to answer this question, part of the case-law directs that the will of the parties may fulfill its function of determining the rules of procedure, so this will have to be explicit and clear. it is possible in the field of law applicable to contracts to seek the implicit will of the contracting parties if they do not provide timely will. this is due to the fact that in the field of arbitration, it is impossible to say that the implicit will of the opponents can be invoked. whereas, another direction of french case law sees that the rule of application of the law of the will on procedural questions in the field of arbitration, as stipulated in article (1/5 / d) of the new york convention of 1958 ad does not mean the commitment of the judge only to the law explicitly defined by the will of the parties. it can also be recommended by the apparent text of the agreement, which also means giving the judge the opportunity to disclose the law that the parties' implied will has revealed in the event that they do not explicitly state their choice of law. the researcher believes that the second opinion that takes the implicit will is the closest to the right, because the expression is the direct expression of the will. the direct expression as accepted by people is in writing and by reference, otherwise the indirect expression is by accepting or rejecting the ideas provided by the will. the parties to the dispute may explicitly define the applicable law in the arbitration agreement, for example by stating that the applicable law is jordanian or egyptian law, and the parties may implicitly accept this law by the fact that the parties agree to choose jordanian or egyptian law.10 the egyptian will conduct the arbitration and may not agree at the same time that the proceedings are 10 egyptian civil law (1948) http://creativecommons.org/licenses/by-nc-sa/4.0/ 498 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia subjected to another law, so their agreement will be evidence of the application of law of the place of arbitration. it is well established that the mere fact of entrusting arbitration to an arbitration center implies an agreement to follow a set of rules and the rules it contains concerning procedures. moreover, certain examples of express images were given in the definition of the law applicable to the contract, where the contracting parties name a law by name, provided that the arbitration dispute was referred to it, and this can clearly be in the field of international trade and transport, where the use of standard contracts was common. each of them was subject to the law stipulated therein, and all disputes arising out of that contract were subject to the law stipulated therein, for example, contracts for trade in cotton, rubber, grain or shipping contracts, and may be a choice of law the applicable rule is a tacit choice, which the judge extracts from the circumstances. it is surrounded by the contract, for example, to ensure that the consideration of disputes relating thereto falls within the jurisdiction of the courts of a particular country or is submitted to arbitration by an arbitrator of a particular country, or of a particular country whose intention to leave the parties subject to the law of the country of the judge or the law of the state of the arbitrator, may be extracted and documented from the contract with a notary. a certain person or revising it in a specific language, or agreeing to perform a specific task, the judge may extract from it the existence of an implied intention to apply the law of the state to which that document is affiliated, or the law of the country in which that language or currency is used. given the difficulty encountered by the parties in choosing the rules governing arbitration proceedings, because they do not take notes of all the details expected of the dispute or may not have sufficient knowledge of the legal aspects, they choose rules that are not adapted to the dispute submitted to arbitration. its use in the arbitration of special cases is due to the arbitration rules issued by the united nations in 1976. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 499 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in addition, moderation in the law of the will prevails in free arbitration, and in this type of arbitration, the parties do not choose a permanent arbitration center, but the arbitration takes place according to the will of the litigants, in terms of how to proceed with the arbitration proceedings and determine the applicable law. if this type of arbitration comes back, someone has been confronted with the arbitration of permanent centers. however, it still has its place in certain areas of importance, such as arbitration in the field of competition between enterprises, in patents, technology transfer contracts and international concession contracts. the parties to such arbitration may organize the conduct of the dispute according to the rules of procedure or a combination of many arbitrations center rules, so that they are an element that is not related to those rules. consequently, the emirati legislature must endeavor to establish the principle of the freedom of parties in determining the procedures followed by the arbitration panel on the arbitration dispute. since article (24/a) of the jordanian arbitration act stipulates that “the parties to the arbitration shall agree on the procedures followed by the arbitration board, including their law by subjecting such procedures to the rules followed in any arbitration institution or center in the kingdom or abroad”.11 the researcher believes that each of the proposed uae legislators comes from a single source, which is the model arbitration law published by the united nations commission on international trade. it is apparent from the text of this article (24/a) that the proposed uae legislator has subjected to the arbitration proceedings to the rules agreed upon by the parties in the first place while recognizing them in complete freedom, defining these rules where they were allowed to be formulated in the arbitration agreement, the rules of procedure, which are mandatory to be followed before the arbitrators. the legislator agree that the procedures shall be applied in accordance with the rules in force in an institution or arbitration center in the united arab emirates, or outside such as the rules of the international chamber of commerce in paris, or the 11 jordanian electronic transactions act no. 58 of (2001) http://creativecommons.org/licenses/by-nc-sa/4.0/ 500 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia arbitration list of the united nations committee or the rules of the cairo regional centre for commercial arbitration states. thus, according to the provision of article (24) of the uae arbitration law, the parties shall depart from the procedural rules that this law has drawn up, to regulate the arbitration proceedings, as it is the law that should be applied to the arbitration proceedings because the arbitration takes place in the united arab emirates. in this way, the parties to the arbitration dispute can establish procedural rules of their own creativity to regulate the conduct of the dispute and its procedures in terms of the location of the parties to the arbitration, their dates, the language used in their proceedings. the rules used to hear witnesses, appoint experts, how to advertise, organize the exchange of the rights of defense and provide documents that explain the reasons on which each party relies to prove its requirements and legitimate right, and we note that the jordanian legislature has given this power. the freedom of the parties to the dispute choose the law applicable to the proceedings of the arbitration dispute, since they are able to know what is in their interests, and accused them. therefore, he allowed them to deviate from the ordered rules, provided that they organize cases in which it hears the interests of the parties. this freedom presents itself to them only as an obstacle to the violation of public policy, and this is an advantage of arbitration, characterized by speed, confidentiality and specialization, and avoiding conflicts of laws and jurisdiction. in addition, if article (24) above has decided on the principle of the freedom of the parties to choose the procedures and not indicated their right to submit, these procedures rule the force in a specific foreign law. this can be seen by extrapolating the text of article (27) of the uae arbitration bill, which states that “the parties to the arbitration shall agree on the place of arbitration in the uae or abroad, and if there is no agreement. the arbitration committee shall designate the place of arbitration, which means that the parties to the dispute are free to choose the place of arbitration in accordance with the above text, and they may also and indirectly choose the law under which the arbitration is subject to http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 501 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia its rules of procedure. in accordance with the principle, the arbitration is subjected to the procedures in force in a specific foreign law despite the arbitration procedure in the united arab emirates.12 as for the french law on arbitration, it provided for the freedom of the parties and their willingness to organize the arbitration proceedings, either directly or by referring to an arbitration law or to a law of law no. 48/2011. however, the basic principles of the case set out in articles (4 to 10) and the first paragraph of article as well as the second and third paragraphs of article (12) and articles 21 and 23 are still applicable. the parties and the arbitrators shall conduct the proceedings expeditiously and honestly, taking into account contractual obligations. arbitration proceedings shall be subject to the principle of confidentiality, unless otherwise agreed by the parties. as such, it can be said that french law was extremely liberal, and this liberal methodology was decided on two levels. first level: the parties are free to define procedural rules without reference to any national law. second level: where reference is made to french law, it has allowed the parties to be able to fragment its rules and choose the rules that suit them and exclude others even if they are mandatory and form part of the basic rules geared to litigation in the act on domestic procedural acts. it was noted that when the freedom of the parties to the arbitral dispute reaches the level of liberation from all national laws according to their willingness to draw up the rules of procedure, the case may be qualified as arbitration without law or free arbitration. according to the provisions of english law, the will of the parties to the dispute plays its part in determining the stages and procedures of arbitration, since the case before the arbitration board is the business of the parties and each of them is anxious to present its claims and defend it before the board in a convincing manner through appropriate procedures so that the arbitral award is not set aside. the arbitral award shall be binding on the parties to the dispute, or not to recognize it, or not to implement it in the country to which it is to 12 jordanian electronic transactions act no. 58 of (2001) http://creativecommons.org/licenses/by-nc-sa/4.0/ 502 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia be submitted for that purpose. on the contrary, the power of arbitrators in determining arbitration proceedings derives from the will of the parties to the extent permitted by the applicable law. the english arbitration act gave the disputed parties the power to agree on the procedures they wished, and those to be followed by the arbitral tribunal (articles 15, 16, 23 and 34). the text of article 68 (2) (c) set aside the arbitral award if the arbitration board was unaware of the rules of procedure that the will of the parties tended to apply to arbitration disputes. as stated in paragraph e of the same article, the arbitral award was null and void if the arbitral tribunal or any other person authorized by the parties exceeded certain powers in relation to the proceedings. furthermore, the english legislature has given the judge in case of a fundamental breach of the procedures that the arbitral award be referred in whole or in part to the arbitration board. the judge thus, has the right to set it aside in completely or in part, or to refuse to give it the executive form of the decision in completely or in part and this is stipulated in section (68/3 a, b and c) in the english arbitration act. iii. the third requirement: the position of international treaties and permanent bodies on the discretion of the arbitral tribunal in choosing the law to be applied to the arbitration dispute the rule of origin, as noted above, is the willingness of the parties to agree on the rules governing arbitration proceedings. however, there may be cases where there is no agreement between the parties to settle procedural issues or where the parties agree to allow the arbitration panel to choose the applicable law as the arbitral body has with the same freedom or possibility as the litigants had in this regard. in such cases, the arbitral http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 503 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia tribunal shall determine for itself the rules of procedure which it considers most appropriate to the circumstances of the dispute. it shall have the right to decide to follow the system of procedure approved in the roster of an organization or permanent arbitration center. it may decide to follow the procedural system of either country. the authority of the arbitral tribunal to regulate the procedures of arbitration thrives and becomes clear in arbitration of special cases, where the parties do not agree to regulate them, or refer to the law, or specific arbitration rules, or in the case of institutional arbitration.13 the positions of international treaties, agreements, and permanent bodies differed from the question of the discretionary power of the arbitrator (arbitration body) in determining the law to be applied to the proceedings. some of them enforced its own rules of procedure, with the will of the parties to the arbitration dispute not to violate these rules, which we will answer through the following examples: article 4 of the rules of the abu dhabi centre for commercial conciliation and arbitration of the dubai chamber of commerce and industry for the year 1994 ad provided that “in the absence of a special agreement between the parties, the conciliation or arbitration bodies shall be competent to determine the rules of procedure or substance necessary to settle the dispute before them”. this was also stipulated in the same vein. under this system a specific issue in the dispute is governed, in the event of disagreement, the conciliation or arbitration committee shall determine the procedures to be followed without prejudice to the mandatory provisions of the laws applicable in the emirate. article (44) of the 1965 washington agreement stipulated that arbitration proceedings shall be conducted in accordance with the provisions of this section and in accordance with the arbitration rules in force on the day of the arbitration agreement, unless the parties concerned agree otherwise and if a question is raised relating to proceedings not included in this section. alternatively, in the arbitration system or any 13 tunisian law on trade and electronic commerce no. 83 of 2000 http://creativecommons.org/licenses/by-nc-sa/4.0/ 504 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia other rules agreed upon by the parties, the court should decide the question. the law chosen by both parties means that the centre's list has given the arbitrator the power to rule on any dispute that may arise between the parties to the arbitration dispute, concerning the contract concluded between them, or in any contract, a subsequent agreement between them. the arbitrator has been authorized to rule, in the event of disagreement between the arbitrators, on the law applicable to litigation proceedings, and the power to choose any law that applies to the arbitration as he or she deems appropriate. the new york convention adopted the principle of the freedom of the parties to determine the law applicable to arbitration proceedings, but in case of disagreement between the parties, it decided to apply the law of the country in which the arbitration took place, i.e. the law of the place of arbitration. this was mentioned in article five(d), which states that “no refusal to recognize and enforce the ruling on the basis of the request of the opponent invoking the ruling shall be permitted if such surrender is submitted to the competent authority of the country to which it was obliged to recognize and enforce evidence that the formation of the arbitration panel or the arbitration proceedings were contrary to what the parties have agreed or to the law of the country where the arbitration took place in case of disagreement. according to the text of the above agreement, a decreasing arrangement was observed with respect to the procedures applicable to arbitration. the priority in application is what the parties have agreed, and in the event that the parties to the arbitration dispute do not agree on the specification of the applicable law, the law of the place of arbitration shall apply.14 it was clear that the agreement did not confer on the arbitrator (arbitral tribunal) the discretion to determine the law to be applied to the proceedings. the 1961 european convention, however, went further than the new york agreement, where it emphasized the freedom of the parties 14 tunisian law on trade and electronic commerce (2000) http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 505 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in determining the rules of procedure to be followed by arbitrators, and also emphasized the freedom of the parties to choose the type of arbitration. it stipulated in the first paragraph of the said article that where the parties choose the type of arbitration, and one of the arbitration institutions, the arbitration proceedings shall be conducted in accordance with the rules of that institution, and this is what is stipulated in article iv of the europe agreement by saying: the parties may stipulate in the arbitration agreement that: their disputes shall be submitted to a permanent arbitration center, in which the arbitration case shall be conducted in accordance with the rules of that center. if the parties agree to settle their disputes by free arbitration, without the arbitration agreement containing a statement on the procedures necessary for the organization of the arbitration, the arbitrators shall have the right to take such measures. the head of the competent chamber of commerce, or the competent commission, as the case may be, shall have the power to lay down the rules of procedure to be followed by the arbitrators, either directly or by recourse to a permanent arbitration list of the centre. the arbitrators do not specify such rules in the absence of an agreement between the parties in this respect. this means that in the event that the parties to the dispute do not agree on the application of the rules of certain procedures, the arbitrator will follow the procedures established by the rules of the international chamber of commerce. in the event that these procedures are not sufficient or if the rules mentioned are silent on the treatment of certain procedural issues, the arbitrator may act on one of the national laws or he may decide on appropriate procedures without drawing them from a specific law. some legal scholars argued that the europe agreement, by setting out various solutions to the question of the law applicable to the proceedings, has created a law in international commercial arbitration, as it avoids the many problems that may arise due to a conflict of laws in the country where the arbitration takes place. http://creativecommons.org/licenses/by-nc-sa/4.0/ 506 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia iv. fourth requirement: the position of legal systems regarding the discretion of the arbitral tribunal in the choice of law to be applied to the arbitration dispute it may not be possible for the parties to the arbitration dispute to establish the procedural organization to be followed by the arbitral tribunal. especially as this requires a certain degree of specialization and a qualification may not be available to them, so it is agreed to delegate the arbitrator in the definition of the procedural organization, but to delegate the choice of procedures to the arbitrator. this may lead to unfair results, either for the unfairness of the proceedings themselves or for the arbitrator to exploit the determination of the rules of procedure, as he or she deems appropriate in a manner that may prejudice the expectations of the parties to the dispute. hence, the arbitrator must always inform the parties of the rules, he or she intends to follow, before the proceedings begin to provide sufficient time to them to make submissions, suggest alternative measures and inform them of any subsequent changes required for the proper functioning of the proceedings. it was noted that some national laws have expressly referred to the freedom of the parties to choose the rules of procedure to be followed in arbitration proceedings, and in the event of disagreement on this matter, the arbitrator or arbitrators shall determine the rules of procedure they deem appropriate. practical applications confirm that arbitrators rarely determine the rules of procedure, in the event of a dispute, despite their legitimate right to do so, and the arbitration board selects those rules on their behalf. in such cases, the arbitral tribunal, whether one or more arbitrators, has the power to determine the rules of procedure which they consider appropriate for the settlement of the dispute, and the arbitrator has in this http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 507 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia respect powers which are not even recognized for the jurisdiction of the state, and may therefore specify the procedures to be followed. the sources from which such measures derive provided do not affect the rights and guarantees of defense, equality and justice between the opponents. it was clear from the text of the above article that the proposed emirati legislature will determine jurisdiction by determining the rules of procedure in the absence of an agreement between the parties to the arbitration on privacy. however, this freedom is limited by compliance with the rules and procedures contained in the provisions of the arbitration act in the sentence the arbitration board may choose the arbitration procedures it deems appropriate and taking into account the provisions of that act. in this statement, the legislator intends that each arbitration body shall, when using its power, in the selection of the rules of procedure, comply with the procedural rules.15 the mandatory conditions stipulated in the arbitration act includes that they are obliged in all cases to comply with the basic rules governing the conduct of arbitration proceedings. those relating to public order, to ensure equality and confrontation for each of the two rivals, and to implement the right of defense in the desired manner, must respect the rules without the need for a text, since it is a universal right in which all laws are agreed, and all arbitration institutions are international or national. the arbitral tribunal is free to choose the procedures it deems appropriate the standard here seems to be a purely personal one, but following elements should be taken into consideration: first: if the arbitral tribunal deliberately establishes procedural rules of procedure in accordance with the discovery of the nature of the dispute and its particulars, then it is free to establish such rules, and it has no restrictions other than the restriction of public policy. 15 newcomer, joshua j. “convention on the recognition and enforcement of foreign arbitral awards (new york convention)-supremacy clause-self-executing and nonself-executing treaties-treaty implementing statutes-effect as domestic law in united states jurisdictions.” the american journal of international law 105, no. 2 (2011): 326. http://creativecommons.org/licenses/by-nc-sa/4.0/ 508 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia second: if the arbitration board deliberately chooses a procedural system affiliated with either state, it must choose a procedural system related to the dispute before it, in a manner that does not violate the legitimate expectations of both parties, such as the system of the place of arbitration or the place where the arbitral award is enforced, or a system whose provisions are more appropriate to the nature of the dispute. it is not permitted to choose a procedural system that is not related to the dispute as compared to what we justify choosing, and where there are several laws related to the relationship, it must entail his choice of one of them without other laws. if he intends to choose the procedures in force organization or arbitration center, there are organizations or arbitration centers specializing in one type of dispute or another, then the procedures in force in the organization, or arbitration center specializing in the type of dispute before it. as for the french law, it distinguishes between domestic and international arbitration, each of them is different with respect to text because article (1464) of the new act on procedural acts stipulates that the arbitrators determine the procedures of the arbitration proceedings without the obligation to follow the rules followed by the courts unless the parties to the arbitration decide apart from the arbitration agreement. however, the basic principles of the dispute shall be applied by the arbitral tribunal as set out in articles 4 to 10 and 11/1, and 13 to 21 from the codification of the pleadings.16 as mentioned above, the law gives the arbitrator a broad role in determining the rules, procedures, and stages of the arbitration proceedings. in this respect, it excludes the rules of procedural law, except those related to the fundamental guarantees of the dispute, since the text mentioned in its last paragraph decides to entrust the arbitrator with the task of separation by organizing and managing the means of proving the facts of the case, as well as the obligations of both parties. if the last 16 secretariat, u. n. c. i. t. r. a. l., emmanuel gaillard, and george a. bermann, eds. guide on the convention on the recognition and enforcement of foreign arbitral awards: new york, 1958. brill, 2017. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 509 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia paragraph of article (1460) determines procedural acts according to which the arbitrator may compel one of the parties to the dispute to submit any evidence in the case. in international arbitration, article (1509) 1 of the french law on procedural acts stated that if the parties do not agree on the organization of the arbitration proceedings, the arbitration board was responsible for organizing the arbitration proceedings, either directly or by reference to a specific law or arbitration rules. the legislator has allowed the parties, as well as the arbitration board, to choose the way in which the rules of procedure are determined, and allowed them to settle themselves directly, or to choose one of the laws or arbitration rules, or by selecting a set of rules so that it is a mixture of all of them without the arbitrators having to observe what has come in the texts relating to domestic arbitration. comparing the position of the french legislator and each of the legislators proposed for the emirates, some legal scholars have supported the said approach of the french legislator to introduce a separation between national and international arbitration that has been successful as it eliminates any confusion, controversy and debate that might arise under the jordanian and egyptian laws which added the treatment of all forms of arbitration in a single law. in accordance with the text of article 1495 of the law of procedure and international arbitration, the arbitration texts do not apply, despite what is characterized by the texts. as for the english legislator, it was noted that the arbitration procedures were organized to domestic arbitration and international arbitration in articles (33-45). these articles have organized the arbitration authority and the parties, to adopt appropriate rules of procedure, for the conditions of arbitration proceeding, and to save time while providing costs by reasonable and fair means to resolve the dispute entrusted to the arbitral tribunal. article (18) of the syrian arbitration act stipulates that: the parties to the arbitration shall agree on the procedures to be followed by the arbitration panel, including their right to submit such procedures to the http://creativecommons.org/licenses/by-nc-sa/4.0/ 510 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia rules in force in any organization or permanent arbitration center in syria or abroad. in the absence of such an agreement, the arbitration panel shall select the arbitration procedures it deems appropriate and in the same sense, swiss law applies to private international arbitration. since article (182/2) stipulates that if the parties do not organize the procedures, the arbitral tribunal shall determine them as appropriate. this can be done either directly or by recourse to a specific law or arbitration rules. it is noted that the swiss legislator has explicitly declared the freedom of the parties to determine the law applicable to the proceedings in addition to this, stipulating alternatives and possibilities from which the parties may choose according to the above text and article (21 / 2) of the spanish law on it. arbitration proceedings shall be a subject to the will of the parties or to the rules established by the organization or association entrusted with the management of the arbitration, or to the arbitration agreement in the absence of rules specified by the parties or by the organization or association to which the task of managing the arbitration has been assigned. in addition, observing the second paragraph of the above article, it is noted that the spanish legislator has submitted the arbitration proceedings as follows: on the one hand, to the will of the parties to the dispute. on the other hand, to the rules contained in the arbitration rules in force in the arbitration centers, which the parties have agreed that the arbitration shall take place under its auspices, and in the third and last rank of the arbitration board in the absence of the rules specified by the parties or by the organization or association to which the assignment of the arbitration has been assigned. this text is identical to article (37) of the portuguese law, article (1693) of the belgian procedural code, article (1036) of the dutch procedural law, article (811) of the lebanese procedural code and article (25) of the omani arbitration law, article (25) of the english arbitration law and article (212/2) of the uae arbitration law stipulating that the arbitrator shall be dismissed without being obliged to follow the judicial procedures http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 511 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia except for the procedures stipulated in this study, and procedures for the parties to appear and present their defense aspects, as well as procedures allowing them to provide documents. however, the parties may agree on specific procedures to be followed by the arbitrator. where the legislator has given the board of arbitration the power to determine and select the rules of procedure that it considers appropriate without being obliged to follow the rules of procedure stipulated in the section on arbitration, this does not mean that the law applicable to the proceedings applies to the subject matter of the dispute. v. fifth requirement: discretion of the arbitral tribunal in the choice of law in accordance with the provisions of the arbitration tribunals the decisions of the arbitral tribunal differed in the definition of procedural law and typical judicial power of arbitration with respect to the authority of the arbitral tribunal in determining the proceedings. the arbitral award rendered in a case concerning the dispute between the government of saudi arabia and the arab american petroleum company (aramco) and the dispute concerns a contract for the exploitation of an oil field on saudi lands (aramco). when the saudi government signed a contract with another person called "onassis" to transport oil exported from saudi arabia, the first thing the arbitration board was faced with, was to define the law applicable to the proceedings and decided in this area, applying the procedural rules mentioned in the machinery. it exceeded and reserves the right to supplement it with a majority decision in a manner that does not violate the provisions of the arbitration agreement. the arbitral tribunal excluded the application of saudi law on the ground that this law does not include specific rules concerning oil http://creativecommons.org/licenses/by-nc-sa/4.0/ 512 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia exploitation contracts. it also excluded u.s. law not only because the arbitration took place outside the united states of america, but also works for the principle of full equality between the parties before the arbitral tribunal, after having released the arbitration from adherence to domestic procedural law. the tribunal resorted to the internationalization of the arbitration, as a prelude to subjecting it directly to the provisions of international law. the tribunal specified the subject matter of the arbitration to public international law by saying: there is a place to apply rules that include the draft agreement on arbitration procedures, which was approved by the united nations international law committee at its fifth session held in new york in 1955 ad, and was supplemented with the arbitration rule on several occasions with consultations between the parties and considered it better than referring to the law of the procedural acts of a country and criticized the idea of referring in this respect to the law of the state of the seat as it did not agree with the particularities of the case.17 the tribunal decided that the proceedings should be based on an existing legal system and ruled out the idea of leaving the determination of the proceedings to its own discretion and eventually submitted the arbitration proceedings to public international law, since one of the parties to the dispute was a state. mainly because of the arbitration contract and the agreement between the arbitrators, the principle is to follow the conduct of the arbitration proceedings and the choice of law to be applied in the case where the arbitration agreement is free to refer to the law of a country or to the list of a permanent center, arbitration body or institution, then the arbitrator has a discretionary power. in choosing the law to be applied to the arbitration proceedings and conducting the proceedings as he or she deems appropriate, the question is whether there are any restrictions on the arbitrator's freedom to determine the arbitration proceedings. 17 united arab emirates arbitration law no. 6 of 2018. retrieved from https://www.tamimi.com/crm-mediauploader/fileupload/server/php/files/uae%20arbitration%20law%20-%20federal %20law%20no%20%206%20of%202018.pdf http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 513 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in fact, there are practical limitations translated into legal considerations, which the arbitrator must observe in order to ensure the international effectiveness of the decision. the arbitrator cannot ignore the procedural rules in the law of the seat of arbitration, or in the law of the country’s most likely to implement the decision, and therefore these texts determine the limits the freedom enjoyed by an arbitrator in the determination of arbitration procedures and, therefore, it can be said that the restrictions are represented as follows: first: the arbitrator is obliged to comply with the procedural provisions in the law of the country where the arbitration is to take place, where a legal action may be filed that invalidates the arbitration in case of violation of the rules of the country. second: the arbitrator shall comply with the procedural rules prescribed by the law governing the enforcement of the decision, where recognition and enforcement of the decision may be refused. third: it is within the framework of the arbitration agreement itself that the arbitral tribunal must respect the limits of the authority conferred upon it in the organization of the arbitration proceedings, and it is established that exceeding this limit is unacceptable. the party against whom the decision is rendered is entitled to challenge the arbitration by nullity before the competent state authority. in cases where the judgment is intended to be enforced, even though the arbitration shall not violate the procedural rules applicable under the law of that country. with respect to the restrictions on the freedom of the arbitration, board chooses the procedures to be applied in the arbitration act of the united arab emirates, and with regard to the design of those restrictions that some of the jurisprudence sees.18 the abstract general formulation to which the proposed emirati legislature and the egyptian legislature in the arbitration act ,ay not hide the fact that the situation is different in forms of arbitration that takes place in the emirates. the arbitration board shall be bound to follow the procedural provisions stipulated in the arbitration act of the united arab emirates pursuant to the provision of its article (3), 18 united arab emirates arbitration (2018) http://creativecommons.org/licenses/by-nc-sa/4.0/ 514 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as it stipulates that the provisions of this law shall apply to any arbitration agreement taking place in the emirates, and attached to a civil or commercial dispute, between parties of persons of public or private law, regardless of the nature of the legal relationship around which the dispute arises, whether contractual or non-contractual. therefore, the mandate of the procedural provisions established by the arbitral tribunal is a reserved mandate whose scope is limited to cases in which it is permissible to agree otherwise than to the rules stipulated in the arbitration act, in accordance with the provisions of this act itself and to cases which are not governed by this act. in the case of arbitration that takes place abroad, the jurisdiction of the arbitration board originally did not comply with the provisions of the arbitration act of the united arab emirates owing to the lack of commitment on the part of the arbitration board to comply with that act. it should be noted that arbitration that takes place abroad is subject to the provisions of the 1978 new york convention on the enforcement of foreign judgments. if it is implemented in a member country for the treaty, the arbitral tribunal had to apply the place of arbitration to ensure the enforcement of a decision. since article 5/1 of the agreement requires that enforcement of the judgment be refused only if the procedures followed in respect of it were contrary to the will of the parties to the arbitration or a violation of the law of the country in which the arbitration takes place. it also noted that the legislator has left the arbitration board free to choose the procedures it deems appropriate, and the standard appears to be a purely personal one, but the issue necessarily varies depending on the method used by the arbitration panel in selecting the procedures to be applied. conclusion finally, it is concluded that arbitration should be introduced considering the following cases: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 515 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. absence of recourse to the judicial authorities of the state in respect of urgent or temporary decisions in disputes that have been agreed to refer to arbitration within eight days from the day after the date of publication of the urgent decision. the failure of one of the parties to the arbitration should be informed to initiate proceedings that open the arbitration dispute and for eight days. the decision of the urgent cases judge falls, and although this case is not expressly provided for in the arbitration act, it must be measured in the first case because it is not possible to seize indefinitely the funds of the party pursuing the action against him in addition to the urgent action to preserve the sphenoid ill right, a prelude to the implementation of what he has judged. some legal scholars have obliged the party that has an urgent decision to reserve custody to follow a supplementary procedure, which is required by the uae procedures law to file a complaint to establish a provisional seizure on the specified legal date. it is correct for a person to devise a legal solution that has no basis in the uae law requiring arbitration proceedings to be moved within that time period. 2. the expedited and provisional decision is also revoked by the decision of the person who rendered it, whether it is the judge of an urgent cases or the arbitration board in case of a change in the legal situation of the parties and the conditions under which they were rendered. 3. the dismissal of the lawsuit and the decision of no right or discharge or one of the reasons for the expiry of the right shall expire and expire accordingly in accordance with the urgent decision, as well as the waiver of the urgent decision by his request. furthermore, the urgent decision rendered by the arbitration board shall have no effect if no order has been made. its implementation and the party who brought the action against it have refused to implement it. http://creativecommons.org/licenses/by-nc-sa/4.0/ 516 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia recommendations finally, the publication of the uae arbitration bill will provide a new platform for the development of arbitration in the uae in line with global economic developments. despite its lack of sufficient attention to the role of the arbitration body in determining the law to be applied to arbitration proceedings under foreign law, however rigorously it is regulated to achieve the objective set by the legislator, and just as legislative work. however comprehensively, it is not without contradictions, emptiness and ambiguity, and when the objectives have been sought in each research, it is to extract the final results, and to make proposals or recommendations, where appropriate, to develop the research. by addressing the issues raised, following recommendations are made: 1. commercial arbitration is used as a means of settling disputes, because of the freedom enjoyed by the parties to the arbitration dispute in the choice of law to be applied to the arbitral proceedings in addition to the freedom to choose the arbitration panel and the law governing the dispute etc. 2. choosing the law to be applied to the proceedings, restricted by not violating the arbitration procedures of public order. 3. the basic rule in the proceedings is the freedom of both parties to choose the rules of the proceedings provided that the principles of due process are taken into consideration, including equality between the two parties and giving each party full and equal opportunity to present its case. 4. the law applicable to the arbitral proceedings shall not necessarily be the law applicable to the subject matter of the dispute. 5. it is clear from the uae arbitration bill, both french and english, international treaties and agreements, legal opinions and arbitration decisions, that it has given priority to the will of the parties to determine the procedures themselves, or to choose a national law, or arbitration rules to be applied to the procedures. however, in its http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 517 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia absence, this agreement shall have the power to arbitrate this law in the choice of law in accordance with the alternatives mentioned in the research. 6. organization of intensive courses for lawyers, judges and arbitrators related to issues of arbitration procedure. 7. it is examined that the proposed uae legislator introducing the separation between domestic and international arbitration, similar to the french legislator, in order to eliminate any confusion and controversy, and the dispute that may arise under uae law. 8. the study has recommended drawing the attention of researchers to research on the social impact of arbitration for its money by preserving friendly human relations, and maintaining and interconnecting them, instead of the nature that burdens them with litigation in addition to the complexity and multiplicity of proceedings before the courts. references tunisian law no. 83/2000 dated 9 august 2000 concerning electronic trade and commerce (chapters 1-4). arab law q. 414, (2000). unictral model law on electronic commerce adopted by the united nations commission on international trade for the year (1996), (2010). retrieved from https://www.uncitral.org/pdf/english/texts/electcom/0589450_ebook.pdf united nations commission on international trade law. uncitral arbitration rules (2010). (2011). retrieved from https://www.uncitral.org/pdf/english/texts/arbitration/arb-rulesrevised/arb-rules-revised-2010-e.pdf http://creativecommons.org/licenses/by-nc-sa/4.0/ 518 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia legislations egyptian civil law was published on 9 ramadan 1367 accompanying 16 july 1948. retrieved from: https://www.ilo.org/dyn/natlex/natlex4.detail?p_lang=en&p_isn=569 49&p_classification=01.03 jordanian electronic transactions law no. 58 of 2001. retrieved from: http://www.eajournals.org/wp-content/uploads/the-legalframework-of-electronic-contract-in-the-jordanian-legislation.pdf newcomer, joshua j. “convention on the recognition and enforcement of foreign arbitral awards (new york convention)-supremacy clauseself-executing and non-self-executing treaties-treaty implementing statutes-effect as domestic law in united states jurisdictions.” the american journal of international law 105, no. 2 (2011): 326. retrieved from: https://go.gale.com/ps/anonymous?id=gale%7ca257128487&sid=g ooglescholar&v=2.1&it=r&linkaccess=abs&issn=00029300&p=aone &sw=w secretariat, u. n. c. i. t. r. a. l., emmanuel gaillard, and george a. bermann, eds. guide on the convention on the recognition and enforcement of foreign arbitral awards: new york, 1958. brill, 2017. retrieved from: https://www.uncitral.org/pdf/english/texts/arbitration/nyconv/2016_guide_on_the_convention.pdf the model law on electronic commerce adopted by the united nations commission on international trade for the year 1996. retrieved from: https://www.uncitral.org/pdf/english/texts/electcom/0589450_ebook.pdf the uncitral law on international commercial conciliation with guide to enactment and use 2002, united nations publications, new york, 2004. retrieved from: https://www.uncitral.org/pdf/english/texts/arbitration/ml-conc/0390953_ebook.pdf tunisian law on trade and electronic commerce no. 83 of 2000. retrieved from: https://brill.com/view/journals/alq/16/4/article-p414_12.xml uncitral guide to the convention on the recognition and enforcement of foreign arbitral awards (new york 1958). retrieved from: https://uncitral.un.org/en/texts/arbitration/conventions/foreign_arbit ral_awards http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 519 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia uncitral rules on electronic commerce, as revised in 2010. retrieved from: https://unctad.org/meetings/en/sessionaldocuments/a67d17_en.pdf united nations commission on international trade law. uncitral arbitration rules (2010). (2011). retrieved from: https://www.uncitral.org/pdf/english/texts/arbitration/arb-rulesrevised/arb-rules-revised-2010-e.pdf united nations commission on international trade law. uncitral model law on electronic signatures with guide to enactment, 2001. united nations publications, 2002. retrieved from: https://www.uncitral.org/pdf/english/texts acknowledgment none funding information none conflicting interest statement the author stated that there is no conflict of interest in the publication of this article. publishing ethical and originality statement the author stated and declared that all sources cited in this work adhere to the fundamental norms of scientific quotation, and that this work is entirely original and has never been published in any format or media or been accepted for publication in any journal. about author(s) dr. azab alaziz alhashemi currently working as an assistant of secretary general for the arab federation of engineering arbitration, egypt. dr. alaziz is an expert in international arbitration, with more than thirteen years of experience at international commercial arbitration and investorstate arbitration specialty. he completed his b.a. degree as an engineer in “information security” and got his phd in the same field in 2010, also he http://creativecommons.org/licenses/by-nc-sa/4.0/ 520 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia earned the british double-board certificate in information security and managing international enterprises, then continued in the field of international arbitration, where he held the position of arbitrator in disputes in all continents” in multiple countries, in oblige to the rules of uncitral and the international criminal court and the permanent court of arbitration in hague. dr. alaziz also had preserved high ranked positions and distinguished place as an international arbitrator, and won exceptional prizes for his essential role in spreading the culture of arbitration in several countries, as well as training a group of intellectuals, lawyers, academics, ministers, and managers in georgia, azerbaijan, turkey, iraq, and gordon. because of his leading role in the field of international arbitration and investments, he has his print in establishing his own enterprises, which exceeds sixty companies in various disciplines, for a large number of investors in the uae and britain, as well as his understanding and practice of international law. his work is not only shortened to international arbitration, but establishing law networks such as “the international diplomatic network for human right’s law” in norway, as well as spreading the culture of law and human rights in several arab countries. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 151 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 2, april 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: february 27, 2021 revised: march 30, 2022 accepted: aoril 15, 2022 available online since: april 30, 2022 how to cite: kusuma, ega, and siti anisah. 2022. “the urgency of rcep in the development of indonesia investment law”. journal of law and legal reform 3, no. 2 (2022): 151-184. https://doi.org/10.15294/jllr.v3i2.55169 © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article the urgency of rcep in the development of indonesia investment law ega prabandari kusuma1 , siti anisah2 1,2 faculty of law, universitas islam indonesia, special region of yogyakarta, indonesia, 051001  18410647@students.uii.ac.id abstract the problem of investment regulation in indonesia has always been a major obstacle for domestic and foreign investors. this study was conducted to analyze the problem of investment regulation in indonesia, especially in law no. 11 of 2020 concerning job creation after the ratification of the rcep agreement, and the urgency of rcep particularly for the development of investment law in indonesia. this is normative http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i2.55169 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 mailto:18410647@students.uii.ac.id https://orcid.org/0000-0001-6847-2846 https://orcid.org/0000-0001-6847-2846 152 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research which used descriptive qualitative method to analyze the legal materials. the data was processed systematically based on legal principles. although law no. 11 of 2020 has impact on many amendments to the laws, but there are weaknesses in the regulation of investment, which are the lack of transparency, community participation, investment protection, fair and equal treatment implementation, and legal certainty. as long as the response to rcep is good, the ratification of rcep will open up opportunities for indonesia to open market access. therefore, indonesian government needs to remove some restrictions, support ease of doing business, change laws and regulations flexibly, and apply the principle of openness to the public. keywords: urgency; rcep, job creation act, investment introduction the one of the aims of the establishment of the association of southeast asian nations (asean) as stated in the asean declaration is to maintain close and beneficial cooperation with existing international and regional organizations with the same aims and objectives, and explore all avenues of closer cooperation among themselves.1 in its implementation, it is aimed at the existence of the asean free trade area, which aims to increase competitiveness and encourage foreign investment to asean as a favorite area for investing. asean also initiated the establishment of the regional comprehensive economic partnership (rcep) as a form of response to the economic dynamics of the asean economic community (aec). regional comprehensive economic partnership (rcep) was first discussed at the 21st asean summit in phnom penh, cambodia, 18 november 2012 by the leaders of asean member countries and 1 zakir hafez, “the asean declaration (bangkok declaration) 1967,” in the dimensions of regional trade integration in southeast asia (brill nijhoff, 2004), 351–53. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 153 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia cooperation partner countries. the objective of establishing rcep is to achieve a comprehensive and mutually beneficial relationship among participating countries, while still prioritizing the establishment of aec in 2015.2 rcep was also formed as a result of the noodle-bowl effect or overlapping regulations in the asean and asia pacific regions. in relation to investment, rcep facilitates and increases the openness of investment and trade relations between member countries, which ultimately aims to strengthen the global and regional supply chains. with the entry of indonesia into the rcep agreement, it resulted in the presence of foreign investors can absorb labor in the host country of capital; create demand for domestic products as raw materials; increase in foreign exchange, especially foreign investors who are export-oriented; increase state income from the tax sector; transfer of technology and knowledge (know how).3 one of the things that foreign investors pay attention to in investing their capital is the existence of legal certainty which must be the government's top priority by the host country. therefore, regulations related to the law on foreign direct investment (fdi) which are currently felt to be overlapping must be updated and arranged in accordance with developments in the international business world.4 in its development, investment law is not only regulated in law no. 25 of 2007 on investment, but also needs to be regulated in several investment treaties, in the form of bilateral, regional and multilateral.5 the treaties include bits, trips, trims, gats, rcep, afta, acia, apec, and miga. rcep is present in the context of reforming the economy in the fields of goods, investment, intellectual property, trade in service, dispute settlement, economic and technical cooperation and competition. some of 2 dedi parna and irwan iskandar, “kepentingan indonesia dalam menggagas perundingan regional comprehensive economy partnership” (riau university, 2017). 3 sentosa sembiring, hukum investasi, (bandung: nuansa aulia, 2007), 24. 4 this updating of course maintains the right of the host country to balance the rights of the host country and foreign investors. m. sornarajah, the international law on foreign investment. 2th ed. (cambridge: cambridge university press, 2004), 196. 5 siti anisah and lucky suryo wicaksono, hukum investasi, (yogyakarta: fh uii press, 2017), 100. http://creativecommons.org/licenses/by-nc-sa/4.0/ 154 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the objectives of rcep procurement in the investment sector are liberal, facilitative, competitive investment environment in the region. under rcep, investment includes 4 pillars namely promotion, protection, facilitation and liberalization.6 the establishment of rcep is expected to have a direct or indirect influence on improving the indonesian economy, so that indonesia needs to make improvements in the investment law system in order to compete in the international arena. at the same time, the challenge faced is how indonesia should negotiate economic strength policies and implement the agreements that have been ratified consistently.7 legal certainty is a problem that investors have long complained about. the resolution of this problem must be the government's top priority. legal certainty means definite laws and regulations and certainty in law enforcement. with so many regulations that hinder trade and investment performance, this has implications for the level of effectiveness and the lack of infrastructure as one of the determining factors for foreign investors. to attract investors, especially after the rcep agreement, the consistency of laws and regulations is a major factor in creating political and economic stability because it is a reflection of the legal certainty of a country. another effort that must be made to encourage investment growth is to create a conducive business climate.8 a conducive business climate for investment in the form of security and ease of doing business. in addition, the government's focus should be on improving the national economy. with the enactment of the job creation law on october 5, 2020, it is considered a structural reform in indonesia that is expected to reduce problems that hinder investment. structural policy adjustments through 6 donna gultom, “perjanjian regional comprehensive economic partnership (rcep): peluangnya bagi indonesia dan langkah pemanfaatannya sebuah perspektif internal,” 2020. 7 asean secretariat, “guiding principles and objectives for negotiating the regional comprehensive economic partnership,” retrieved on april 17 (2012): 2017. 8 luigi guiso and giuseppe parigi, “investment and demand uncertainty,” the quarterly journal of economics 114, no. 1 (1999): 185–227. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 155 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the job creation act are seen as a stepping stone to focus on long-term economic development. these structural and policy adjustments need to be prepared so that indonesia can take advantage of opportunities to increase competitiveness and become a momentum as an investment attraction. however, the problems facing indonesia today are how to simplify licensing, investment requirements, ease of doing business, and structuring derivative regulations from job creation act. after the signing of the rcep, it turned out that new legal problems arose, considering that there were several inconsistencies in the substance of the regulations in job creation act and rcep.9 on the other hand, the government of indonesia seems less serious in addressing the opportunities and challenges of regional economic integration due to the hampered investment sector. the challenges of regional economic integration face internal constraints such as political instability, corruption, deteriorating infrastructure and stricter labor regulations in their implementation, the implementation of free trade cooperation.10 with global supply chains being hampered, international companies have begun to move their production locations to other countries that are closer so that their supply chains are closer and even perform restorations. this is used to facilitate post-pandemic economic recovery because foreign direct investment (fdi) can be utilized by neighboring countries to increase domestic production capacity and create jobs.11 in addition, the pandemic has changed the flow of globalization in terms of structural changes that have an impact on international trade relations and governance. the international monetary fund (imf) projects that financial growth in developing asian countries will decline from 5.5 percent in 2019 to 1.0 percent in 2020 with a projected decline in global 9 muhammad insa ansari, “omnibus law untuk menata regulasi penanaman modal,” jurnal rechts vinding: media pembinaan hukum nasional 9, no. 1 (2020): 71. 10 nikita zakharov, “does corruption hinder investment? evidence from russian regions,” european journal of political economy 56 (2019): 39–61. 11 oecd, first lessons from government evaluations of covid-19 responses: a synthesis (paris: oecd, 2022). http://creativecommons.org/licenses/by-nc-sa/4.0/ 156 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia gdp to fall more than 2% in early 2020.12 rcep has potential benefits for indonesia such as opening of market access, enhancing foreign direct investment (fdi), and increasing indonesia's gross domestic product (gdp).13 so with the ratification of rcep, it has many potential benefits for indonesia, but it could be lost if indonesia does not focus on resolving legal uncertainties. the solution to indonesia's problems is to oversee the consistency of substance and law enforcement, among others by making structural and policy adjustments to increase the competitiveness of the national economy to attract new investment. indonesia must have a strategy in implementing rcep, because it is moving to become a country for imported products. indonesia must also make the right policy choices, because law no. 11 of 2020 which is expected to provide opportunities for ease of doing business for investors has actually received many rejections in its implementation. in-depth analysis of these problems is very important for researchers to be able to offer several solutions for improving investment in indonesia. based on the description above, the writer formulates two problem formulations in this research. the first, what are the weakness of investment provisions under law no. 11 of 2020 on job creation related to ratification of rcep agreement. second, how is the urgency of rcep especially for the development of investment law in indonesia. method this research is a normative research, namely legal research conducted by examining legal materials which focus of study in the form of regulations related to the formulation of the problem, so this research is documentary 12 a long and difficult ascent, “world economic outlook,” international monetary fund, 2020. 13 marcellino gonzales, “the role of law for small medium enterprises (sme’s) protections faces the challenges of regional comprehensive economic partnership (rcep) in indonesia,” indonesian law journal 14, no. 2 (2021): 173–95. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 157 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research. the focus of research is to analysis the weakness of investment regulations in indonesia and the urgency of rcep especially for the development of investment law in indonesia. this research uses a statutory approach which is carried out to review regulations related to investment, expecially in job creation act and rcep. this approach provides analysis for researchers to see if there is a match between one law and another. the legal materials used are primary legal materials in the form of laws and regulations and the rcep agreement, spesifically investment; secondary legal materials in the form of books, journals, other scientific works; and tertiary legal materials in the form of a dictionary, and encyclopedia. legal materials collect by conducting a literature study, namely by collecting, reviewing, and systematizing legislation, secondary and tertiary legal materials related to the subject of research. the data analysis method in this research is descriptive qualitative and comparative. result & discussion as it is known that the rcep agreement has many advantages for indonesia, such as opening of market access, enhancing foreign direct investment in the new industrial sector, and increasing indonesia's gross domestic product. however, the problem for indonesia at the same time is the increasing trade deficit between indonesia and other rcep member countries. this can be seen from how the structural and policy adjustments to enhance the competitiveness of the national economy that enable indonesia. http://creativecommons.org/licenses/by-nc-sa/4.0/ 158 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia i. the weakness of investment provisions under job creation act related to ratification of rcep agreement the indonesian government has ratified the rcep after the enactment of law no. 11 of 2020 on job creation. the ratification of the job creation act by the dpr on october 5, 2020 has brought developments to the legal system in indonesia. the overlapping and unsynchronized laws were eventually simplified by cutting regulations into a more open climate for investment. in the indonesian context, the existence of the job creation act is expected to resolve regulatory conflicts in both horizontal and vertical relationships.14 although the job creation act has amandmend many regulations that were previously in effect, the ratification of rcep has created new problems related to investment regulations. first, in article 3 of the rcep negotiation principle, it is stated that rcep will include provisions to facilitate trade and investment and to increase transparency in trade and investment relations between participating countries, as well as facilitate the involvement of participating countries in global and regional trade supply chain.15 in addition, as explained in article 10.17 investment facilitation, it is stated that each party shall endeavor to facilitate investment between the parties.16 these are including through creating the necessary environment for all forms of the investment; simplifying its procedures for investment applications and approvals; promoting the 14 eko noer kristiyanto, “urgensi omnibus law dalam percepatan reformasi regulasi dalam perspektif hukum progresif,” jurnal penelitian hukum de jure 20, no. 2 (2020): 233–44. 15 asean secretariat, “regional comprehensive economic partnership agreement” (n.d.), https://rcepsec.org/wp-content/uploads/2020/11/all-chapters.pdf. 16 asean secretariat, “regional comprehensive economic partnership agreement annex 10b,” n.d., https://rcepsec.org/wp-content/uploads/2020/11/chapter-10annex-10b.pdf. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 159 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia dissemination of investment information including investment rules, laws, regulations, policies, aand procedures. however, in practice, investment facilitation and transparency of investment policies still have many obstacles. for example, the rule of law principle implies that at every stage of the law-making process, including the drafting process, the legislation process must apply the principles of participation and openness. however, this job creation act actually has a weakness in terms of public transparency, according to the unconstitutional statement of the constitutional court regarding the job creation act which is considered to burden investors by delaying fdi inflows. the constitutional court's decision causes uncertainty, the government is prohibited from issuing derivative regulations and the government has a deadline of 2 years to resolve the structural problems.17 as stated of law no 15 of 2019 amendment to law 12 of 2011 in article 96 on the formulation of laws and regulations, it is stated that in the formation of legislation it is necessary to have public participation. however, the preparation process has not involved any participation from the community, causing various controversies regarding the nondisclosure of information. in addition, with the ombnibus law method, the formation of the law is indirectly carried out by combining several rules which makes it difficult for some stakeholders to observe the substance of article by article in a coherent manner. thus, the cluster of related laws will have an impact on the degradation of the principle of openness in the formation of good laws and regulations. if we look at the principle of the rcep agreement which shows transparency in trade and investment relations between the countries, it will show weaknesses when viewed from the regulations in indonesia, especially the job creation act, the article of which the constitutional court states that the job creation act is unconstitutional. in the consideration of constitutional judge suhartoyo, it was stated that the 17 dany saputra, “kemelut uu cipta kerja berpotensi bebani sentimen investor,” 2021, https://ekonomi.bisnis.com/read/20211126/9/1470701/kemelut-uu-cipta-kerjaberpotensi-bebani-sentimen-investor . http://creativecommons.org/licenses/by-nc-sa/4.0/ 160 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia procedure for its formation did not meet the requirements of the 1945 constitution which was definite and systematic, giving rise to legal uncertainty and had to be formally declared invalid. moreover, the academic text and material for the amendment to the job creation act, it was found in court that it did not provide a space for participation for the community to realize national goals in accordance with the mandate of the opening of the 1945 constitution, so it is very risky if we do not make good investment policy adjustments in competing with other rcep member countries.18 second, in article 10.1 the definition of investment states that investors have rights granted in accordance with the laws and regulations of the host party or contracts, such as concessions, licenses, powers, and permits, including for exploration and exploitation of natural resources. in this article it is stated that investors have rights in accordance with those granted by the host country in the form of permits and licenses, but the complexity of the bureaucratic system in indonesia does not seem to be separated from officials in government and state agencies owned company. for example quite a lot of investors wanted to invest in pertamina and pln, but complicated bureaucratic problems caused the resignation of potential investors.19 in this case, the job creation act has several weak points related to the lack of an explanation of the clause linking one article to other articles that are combined. in terms of licensing, it is stated that there will be an improvement in the investment climate, but in its implementation there are many derivative regulations of the job creation act that have not been optimally implemented, especially due to differences in the character of business activities so that certain regulatory policies are needed. this is what needs to be reviewed by the government, the article is in simplifying 18 mahkamah konstitusi, “mk: inkonstitusional bersyarat, uu cipta kerja harus diperbaiki dalam jangka waktu dua tahun,” 2021, https://www.mkri.id/index.php?page=web.berita&id=17816. 19 rayful mudassir, “jokowi kesal birokrasi investasi masih ruwet,” 2021, https://kabar24.bisnis.com/read/20211120/15/1468341/jokowi-kesal-birokrasiinvestasi-masih-ruwet . http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 161 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia licensing and eliminating overlapping, if not immediately accelerated achievement of targets will affect foreign investors to seek policy negotiations with indonesia especially indonesia has advantages and attractiveness related to the availability of attractive natural resources. attention of foreign investors to come.20 the government bureaucracy is considered to still tend to be left behind and adheres to conventional communication, this makes indonesia lose in terms of the competitiveness of digital communications. in addition, the regulation overlaps because it is also a restraining factor for investment so that indonesia is known for its complicated investments. in terms of licensing, investors complain that there are difficulties in getting access to land, land and buildings, especially workers in indonesia who are not skilled enough to be considered by investors in investing in indonesia.21 third, the investment regulation on rcep provides for better investment facilitation provisions that also address investor aftercare, such as assistance in resolving complaints and grievances that may arise.22 the facilities referred to in the rcep agreement are related to the quality of human resources in indonesia, where it was found that the high cost of labor in indonesia which is not in accordance with the skills possessed resulted in the low ease of doing business in indonesia, only being held at level 73 in 2021. however, complaints that arise from investors against the host country have not been responded to properly considering that the job creation act only focuses on job creation, not increasing worker productivity. it only touches on structural economic issues of the country with the main focus on facilitating investment and loosening labor regulations, not on fundamental economics. contrary to the principle that 20 melya sarah yoseva, i ketut westra, and a a sri indrawati, “hak istimewa bagi investor asing dalam berinvestasi di indonesia berdasarkan undang-undang nomor 25 tahun 2007 tentang penanaman modal,” kertha semaya: journal ilmu hukum 4 (2015). 21 venti eka satya, “upaya penciptaan iklim investasi yang kondusif,” info singkat 11 (2019). 22 asean secretariat, “summary of the regional comprehensive economic partnership agreement chapter 7,” 2020, https://rcepsec.org/wpcontent/uploads/2020/11/summary-of-the-rcep-agreement.pdf . http://creativecommons.org/licenses/by-nc-sa/4.0/ 162 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia rcep can ultimately focus on investment protection rather than investment liberalization in favor of transparency in investment relationships.23 fourth, in article 10.5 the treatment of investments states that each party must provide fair and equal treatment to protected investments and full protection and security, in accordance with the minimum standards of customary international law for treating foreigners. fair and equitable treatment requires each party not to deny justice in any legal or administrative proceeedings. full protection and security requires each party to take such measures as may be reasonably necessary to ensure the protection and security. the world economic forum stated that the main problems of investment are corruption and legal uncertainty. the quality of investment in indonesia is minimal due to corruption and convoluted state bureaucracy. even though the simplification of permits has been made for investment, and the on-line single submission (oss) system has been implemented, regulations still face obstacles from the other side in the form of corruption such as kpk data. for example corruption committed by public officials who ask for extra payments in the licensing process. as a result of corruption, the investment climate becomes unhealthy. investors will think again to invest in a country if the costs incurred in the bureaucracy higher because of the high costs of unofficial activities when doing business.24 furthermore, according to the world economic forum, corruption is the main obstacle to investment due to the practice of bribery, gratification, favoritism, and facilitation by a number of individuals, especially in 23 asean and asean’s fta partners, “guiding principles and objectives for negotiating the regional comprehensive economic partnership,” 2012, https://rcepsec.org/wp-content/uploads/2019/10/rcep-guiding-principles-publiccopy.pdf . 24 kementrian keuangan, “media keuangan: transparansi informasi kebijakan fiskal pangkas regulasi, permudah investasi,” jurnal keuangan 13, no. 128 (2018): 24. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 163 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia licensing arrangements.25 indonesia's corruption perception index fell again to 37 points in 2020. the decrease in the index was issued by transparency international shows that indonesia is one of the most corrupt countries among the g20 countries, which is at the 3rd highest level. corruption or the high cost excess of unofficial activities are obstacles for foreign investors so that strict and indiscriminate enforcement efforts are a weapon to bring in good investments.26 the licensing cluster is considered to tend to ignore the impact on the environment. the job creation law has also drawn criticism regarding financing for new business actors who are considered not to make it easier for micro, small and medium enterprises (msmes) to participate in investment activities, especially for msmes that do not have a taxpayer identification number (tin) and business licenses. so that msme actors cannot participate in investment activities within the asean regional scope.27 in terms of investment, the job creation law strongly supports ease of doing business by cutting existing permits. however, on the other hand, the process of making the job creation law received a negative response, due to the minimal participation of the community in public policy making. public policy is considered only useful for the interests of a few parties without the will of the people. for example, labor regulations and wages are considered to have not provided legal protection and certainty for workers.28 25 dwi hadya jayani, “korupsi penghambat utama investasi di indonesia,” 2019, https://katadata.co.id/ariayudhistira/infografik/5e9a4e6183df7/korupsi-penghambatutama-investasi-di-indonesia . 26 lutfiana fiqry ichvani and hadi sasana, “pengaruh korupsi, konsumsi, pengeluaran pemerintah dan keterbukaan perdagangan terhadap pertumbuhan ekonomi di asean 5,” jurnal rep (riset ekonomi pembangunan) 4, no. 1 (2019): 61–72. 27 jaffry prabu prakoso, “indonesia terlalu liberal, efeknya umkm kalah bersaing,” 2021, https://ekonomi.bisnis.com/read/20210317/9/1368910/indonesia-terlalu-liberalefeknya-umkm-kalah-bersaing . 28 may linda iswaningsih, i nyoman putu budiartha, and ni made puspasutari ujianti, “perlindungan hukum terhadap tenaga kerja lokal dalam undang-undang nomor 11 tahun 2020 tentang omnibus law cipta kerja,” jurnal preferensi hukum 2, no. 3 (2021): 478–84. http://creativecommons.org/licenses/by-nc-sa/4.0/ 164 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia some of these problems show that between das sollen and das sein as outlined in the job creation law, they are different from those that apply in society. the reason is, several conflicts occurred when the law was formulated as stated by crabbe, that "in drafting the law there are other provisions that are limited such as human rights, public rights, the right to obtain information, the right to express opinions, which means the legitimate right of a law, the law will be disturbed if the community's right to participate is ignored."29 the foreign investment law has the principle of openness, legal certainty, and equal treatment. this principle is the application of the principle of fair and equitable treatment which requires the host country to provide investment guarantees, transparency, and stability to investors.30 in terms of investment guarantees, investors will look for a host country that can provide good equity. in addition, transparency is a form of protection for foreign investors. the non-achievement of the target of foreign capital inflows in indonesia is the main problem related to the lack of investor confidence to invest in indonesia. in addition to that, legal certainty, consistency of laws and infrastructure policies in indonesia are the most highlighted because foreign investors think that indonesia cannot provide investment guarantees given that the law is unstable.31 in addition, indonesia has not been able to apply the principle of fair and equitable treatment because indonesia has overlapping central and regional regulations, and complicated bureaucratic flows. 29 vincent cyril richard arthur charles crabbe, legislative drafting vol i (routledgecavendish, 2012). 30 resha roshana putri, an-an chandrawulan, and prita amalia, “peringkat arus investasi indonesia dalam kerangka asean-china free trade agreement (perbandingan dengan singapura, malaysia, thailand, dan vietnam) ditinjau dari prinsip fair and equitable treatment,” jurnal hukum & pembangunan 48, no. 2 (2018): 275–98. 31 kppip, “perkembangan pembangunan infrastruktur di indonesia,” n.d., https://kppip.go.id/tentang-kppip/perkembangan-pembangunan-infrastruktur-diindonesia/ . http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 165 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia figure 1. global competitive index 4.0 2019 rangkings sources: bkpm, 2020 the internal problem that is indonesia's weakness in dealing with rcep agreements in general is how legal certainty is for investors in investing in indonesia.32 the rcep agreement in this case emphasizes the existence of investment protection rather than investment liberalization. in this case, the investment regulation on rcep is sought to have a transparent nature in investment relations.33 so it is undeniable that investment policies must be carried out clearly so as not to hinder the process of forming investment law because the 32 i made rusdiko, i ketut widia, and i wayan rideng, “legal certainty of guarantor for the existence of foreign investors in indonesia,” jurnal hukum prasada 6, no. 2 (2019): 123–29. 33 direktorat perundingan asean ditjen perundingan perdagangan internasional kementrian perdagangan republik indonesia, “selayang pandang rcep,” 2019, https://ditjenppi.kemendag.go.id/assets/files/publikasi/doc_20191215_selayangpandang-rcep.pdf. http://creativecommons.org/licenses/by-nc-sa/4.0/ 166 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia formulation of investment policies is one of the conditions for forming investment regulations. therefore, every investment activity needs to consider the supporting and inhibiting factors of an investment. in investing in recipient countries, investment risk, bureaucracy, legal certainty, technology transfer, investment guarantee, employment, infrastructure, presence of natural resources, market access, tax incentives, dispute resolution and mechanisms are some things that need to be considered properly.34 according to article 4 paragraph (2) of law no. 25 of 2007 on investment, the government in establishing basic investment policies is obliged to give equal treatment to domestic investors and foreign investors by taking into account the national interest; guarantee legal certainty, business certainty, and business security for investors; as well as opening up opportunities for the development and protection of msmes and cooperatives.35 the main purpose of the establishment of the free trade area (fta) is to create easy access which can be both an opportunity and a threat for indonesia. that globalization in the form of regional integration is expected to provide equal benefits to all member countries, but becomes a threat when trade liberalization results in an increase in product demand which when the domestic industry is not ready, the increase in imports will have a negative effect on the trade balance.36 moreover, if we look at the existence of poor infrastructure, poor government and private institutions and institutions, inefficiency of goods, inadequate education and labor, and low labor market efficiency, and low ability to new technologies. this requires indonesia to improve production efficiency and effectiveness to be able to compete and create a good investment climate. 34 ana rokhmatussa’dyah and suratman, hukum investasi dan pasar modal (jakarta: sinar grafika, 2015). 35 law no. 25 of 2007 on investment, art. 4 sec (2). 36 r roosaleh laksono and mohd haizam mohd saudi, “analysis of the factors affecting trade balance in indonesia,” international journal of psychosocial rehabilitation 24, no. 2 (2020): 3113–20. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 167 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the covid-19 pandemic since 2020 has hampered various investments into a country, where the realization of investment in the first 3 months is predicted to be hampered considering that the eradication of the covid-19 outbreak has not been completed, thus disrupting the economic cycle.37 based on this data, there are factors that cause the slow pace of investment, namely investors are still waiting and see to invest their capital considering that the handling of the pandemic has not yet been completed. according to rizal calvary marimbo, a member of the investment committee for communication and information at bkpm, he stated that the decline in investment will be seen from trade relations involving the epicenter of covid-19, namely china.38 the institute for development of economics and finance (indef) also predicts that the investment value due to covid-19 will decrease by idr 127 trillion.39 in addition, the spread of the delta variant in quarter 32021 caused disruption of economic activity, which resulted in an economic slowdown with several of indonesia's main trading partners such as the united states. united states from 12.2% to 4.9%, china from 7.9% to 4.9%, singapore from 15.2% to 6.5%.40 article 33 of the 1945 constitution of the republic of indonesia states that the ideals and goals of the state are to realize social justice and welfare for all indonesian people.41 thus, the formulation of laws and regulations must not deviate from the existence of pancasila, the preamble of the constitution and article 33 of the nri constitution. whereas in article 6 paragraph (1) of law no. 25 of 2007 it is explained that the government 37 mandala harefa, “upaya dan tantangan dalam menarik investasi pada masa pandemi,” pusat penelitian badan keahlian sekretariat jenderal dpr ri, 2021, https://berkas.dpr.go.id/puslit/files/isu_sepekan/isu sepekan---iv-puslit-april2021-172.pdf . 38 kementrian investasi/bkpm, “pengaruh covid-19 terhadap investasi di indonesia,” 2021, https://www.investindonesia.go.id/id/artikel-investasi/detail/pengaruh-covid19-terhadap-investasi-di-indonesia . 39 ibid. 40 badan pusat statistik, “berita resmi statistik,” 2021, https://www.bps.go.id/website/materi_ind/materibrsind-20211105101025.pdf . 41 1945 constitution of the republic of indonesia, art 33. http://creativecommons.org/licenses/by-nc-sa/4.0/ 168 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia provides equal treatment to all investors from any country conducting investment activities in indonesia in accordance with statutory provisions.42 article 13 of law no. 25 of 2007 on investment was amended by law no. 11 of 2020 on job creation, explains that the central government or regional government in accordance with their authority provides convenience, empowerment, and protection for cooperatives and micro, small and medium enterprises in the implementation of investment based on norms, standards, procedures, and the criteria set by the central government. investment-related policies have a major influence from the globalization of international trade, namely by not discriminating against regulations for domestic investment and foreign investment. this has become a conflict because indonesia must make regulations that make it easier for foreign investors and on the one hand the provisions must not conflict with the goals of the state and the ideals of the state in pancasila and the 1945 constitution of the republic of indonesia.43 as we know that the reason asean partners are reluctant to invest in a country is because of the lack of investment protection that is fair and equitable treatment. indonesia is one of the countries with the highest number of fdi restrictions such as regulations, taxes, human resources, infrastructure, and others. in the field of regulation, especially the law on job creation, the regulatory burden is borne by investors, even though security is stable and the economy is rated well.44 in terms of fair and equitable treatment in the rcep agreement it is stated that article 8.4 of national treatment on rcep agreement states that different treatment shall be considered to be less favorable if it modifies the conditions of competition in favor of services. this is not 42 law no. 25 of 2007 on investment, art 6 sec (1). 43 nurhani fithriah, “penerapan prinsip non-diskriminatif dan national treatment oleh indonesia dalam rangka mea berdasarkan undang-undang nomor 25 tahun 2007 tentang penanaman modal,” university of bengkulu law journal 2, no. 1 (2017): 80–90. 44 cindy winni violita et al., “peranan investasi asing dalam percepatan pertumbuhan ekonomi di indonesia,” jatiswara 35, no. 3 (2020). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 169 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia supported by the central government arrangement as stated in law no. 25 of 2007 article 6 letter b states that the same treatment does not apply to investors who obtain special rights based on an agreement with indonesia. this is because there are 2 regulations in indonesia which are considered a violation of the first national treatment, related to the local content requirement, namely the requirements and obligations to buy local products, the second, namely the trade balancing policy, namely the use of imported products that are linked to the value of local products exported. this is still a problem for the central government to date, especially since the government has not been able to provide balanced benefits to investors both from abroad and from within the country, so that fair and equitable treatment is still unable to support the implementation of the rcep agreement in the context of investment in indonesia. therefore, investment problems in indonesia cannot be separated from the existence of legal certainty. as a result, investment in indonesia is often doubted by several asean partner countries because they are considered unable to create predictability, fairness, and efficiency. there is no balance of interests between the community and the authorities, which does not materialize the contents of the second and fourth paragraphs of the opening of the 1945 constitution. this can be seen by the unequal treatment of investors. article 8 in the principle of rcep negotiations stated that the negotiations on trade in goods, trade in services, investment and other areas will be conducted in parallel to ensure a comprehensive and balanced outcome. this will be done if the host country and the investor can provide their respective rights and responsibilities in accordance with the applicable provisions both in the rcep agreement and in investment regulations in indonesia, especially the job creation act. competition between foreign investors and domestic investors shows an unfair gap also the rule of law exists as a benchmark for how das sein should be implemented properly. in this case, law in action on investment issues in http://creativecommons.org/licenses/by-nc-sa/4.0/ 170 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia indonesia is not appropriate because the existing law enforcement has not provided legal certainty and protection for investors.45 ii. the urgency of rcep especially for the development of investment law in indonesia the formation of rcep is the result of the dependence of large countries such as china to provide motivation for asian and asean member countries to form mutually beneficial economic areas. china is a new mecca for indonesia's economic dependence, this is because the new economic power has changed from the european union and the united states in the west to the east by creating trading blocks to support the supply chain.46 several previous studies have stated that there is concern for indonesia in exporting manufactured products that will be smaller than other imported products from china. as previously known, the establishment of rcep was originally an idea to integrate asean trade with other trading partner countries. the formation of rcep initiated by indonesia is the result of asean's response to maintain asean centrality in the proposal of china which initiated the east asia free trade agreement (asean+3) and also the closer economic partnership in east asia (asean+6) initiated by japan. and also with the level of liberalization of goods in the asean free trade cooperation (atiga) and asean+1 (aanzfta, acfta, aifta, ajcep, akfta).47 45 arifin halim, “kepastian hukum dan kesederhanaan administrasi perpajakan meningkatkan investor berinvestasi di indonesia,” ikatan konsultasi pajak indonesia, 2020, https://ikpi.or.id/en/kepastian-hukum-dan-kesederhanaan-administrasiperpajakan-meningkatkan-investor-berinvestasi-di-indonesia/ . 46 ragimun and imran rosjadi, “penguatan produk loser sector menjadi produk unggulan kerja sama rcep,” badan kebijakan fiskal kementrian keuangan republik indonesia, 2021, https://fiskal.kemenkeu.go.id/files/beritakajian/file/1630299480_kajian_rcep.pdf . 47 ibid. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 171 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as explained in article 1.3 objective of the regional comprehensive economic partnership that the purpose of the rcep is to create a liberal, facilitative, and competitive investment environment in the region, that will enhance investment opportunities and the promotion, protection, facilitation, and liberalization of investment among the parties.48 with the existence of rcep represent almost half of the world’s population and contribute around 30 percent of global gdp and more than quarter of world exports so rcep has greater value than other regional trading bloc.49 several previous studies state that it is recommended that indonesia strengthen its ability to utilize the regional value chain (rvc) considering that as many as 6,050 indonesian tariff posts have strong links in terms of exports and imports in the rcep area. in accordance with the important role of investment, the regulation of investment law must be in accordance with the interests of the community. the role of investment in the development of a country is as a source of funds for production activities which are expected to provide benefits not only in the macro context but also in the micro context.50 so that investment is declared as the engine of economic growth and development (engine of growth).51 guiding principles have influenced the rcep's legal structure, rcep will improve 5 asean+1ftas and won't detract from commitments under existing ftas. approach poses the challenges to eliminate the noodle bowl syndrome of asian ftas. whereas rcep to guarantee targets on the gats and asean+1 ftas, rcep will substantially eliminate barriers to services trade.52 in addition, to implement rcep countries commitments to the un 48 asean secretariat, “regional comprehensive economic partnership agreement article 1.3” (2020), https://rcepsec.org/wp-content/uploads/2020/11/chapter-1.pdf . 49 dwi f moenardy et al., “indonesia’s strategy in facing the regional comprehensive economic partnership (rcep),” turkish journal of computer and mathematics education (turcomat) 12, no. 13 (2021): 6235–43. 50 jonker sihombing, hukum penanaman modal di indonesia (alumni, 2009). 51 johnny w situmorang, menguak iklim investasi indonesia pascakrisis (esensi, 2011). 52 guiding principles and objectives for negotiating the regional comprehensive economic partnership, op. cit, art. 44 sec (2). http://creativecommons.org/licenses/by-nc-sa/4.0/ 172 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia sustainable development goals, services trade is essential to development policy that eradicates poverty and increases employment. under the aec blueprint 2025, asean aims to strengthen the aciabased investment regime through the establishment of an open, transparent and predictable investment regime in the region.53 in the asean investment report 2020-2021 it is stated that rcep provides an opportunity for investors to promote intra-rcep trade, investment, service as well as developing e-commerce which is very relevant to the existence of efficiency-seeking investment.54 in the rcep investment chapter includes the several elements such as most-favoured-nation, national treatment, schedule of reservations, and investment promotion and facilitation which will help rcep members attract intraregional investment, fdi, and gvc activities.55 the effect of rcep on the investment climate in indonesia can be seen from the research conducted by aprilianti which shows that the reduction in tariffs in the rcep agreement will increase trade intensity which will lead to welfare and production specialization.56 with the reduction of trade barriers in the rcep agreement, foreign investors will be freer to find more effective factory and production locations.57 in addition, evidence shows that when the exchange rate depreciates, it will increase exports because domestic prices are lower than foreign prices, so it has a huge impact on indonesia's trade.58 since asean countries are still in the developing phase, on the other hand, the development of china in dominating its role in rcep will result 53 the asean secretariat, “aec blueprint 2025,” 2015, https://asean.org/wpcontent/uploads/2021/08/aecbp_2025r_final.pdf . 54 the asean secretariat and united nations conference on trade and development, “asean investment report 2021-2022: investing in industry 4.0,” n.d., http://investasean.asean.org/files/upload/asean investment report 2020-2021.pdf . 55 ibid. xxiii. 56 ira aprilianti, “will rcep be beneficial for indonesia” (diperoleh, 2020). 57 mochamad rifki maulana, “perjanjian kemitraan ekonomi komprehensif regional (regional comprehensive economic partnership-rcep) dan pengaruhnya untuk indonesia,” jisip (jurnal ilmu sosial dan pendidikan) 5, no. 1 (2021). 58 ira aprilianti, “will rcep be beneficial for indonesia,” loc. cit http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 173 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in dependence on it. this is not only detrimental to rcep member countries, but also has an impact on government policies in making rules which will be influenced by the largest entity in the agreement. this is not because in 2021 indonesia has experienced a trade deficit between exports and imports of goods as much as us $ 844.5, this is because the value of chinese imports to indonesia is us $ 4.4 billion and the value of indonesia's exports to china is only 3, 5 billion us$. rachmi hertanti, executive director of igj, assessed that the government gave full hope to indonesia to be able to participate in the regional value chains (rvc) game in the rcep agreement. this is because the benefits that indonesia gets are not only participating in the ratification of the rcep but can also have a good impact on lead firms in advanced industrial countries related to investment factors.59 in this case, the host country can offer foreign investors related to efficient production costs such as tax convenience, cheap labor and permits and ease of doing business. with a population of 48% of the world's population and a total gdp of 32%, rcep is a world trade market where foreign direct investment (fdi) into the region accounts for 22% of world fdi.60 impact on indonesia, rcep is not only an opportunity for foreign investors to enter but also a challenge as well as an opportunity for export market access in various industrial sectors. in terms of the challenges faced by indonesia, related to the legal perspective, the problem faced is the regulatory burden because indonesia must choose the policy of rcep provisions into its national law.61 59 indonesia for global justice, “rcep agreement has broad potential towards people’s lives, the house of representatives of indonesia must conduct impact assessment,” 2021, https://igj.or.id/rcep-agreement-has-broad-potential-towards-peoples-livesthe-house-of-representatives-of-indonesia-must-conduct-impactassessment/?lang=en . 60 donna gultom, “rcep: the opportunity for indonesia and steps of its implementation, an insider’s perspective,” 2020. 61 an an chandrawulan and mursal maulana, “rcep: peluang dan tantangan bagi indonesia,” 2020, https://www.hukumonline.com/berita/a/rcep-peluang-dantantangan-bagi-indonesia-lt5fb5ec85cf47e?page=4 . http://creativecommons.org/licenses/by-nc-sa/4.0/ 174 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia there have been many studies showing and estimating the impact of rcep on a country's economy. however, for indonesia, in 2018 indonesia's exports to the rcep market were in the eighth position out of 16 countries. in the 2020 unctad report, james zhan as unctad's investment and enterprise director, stated that with the existence of rcep it could help revive post-pandemic economic growth, encourage foreign investment, and encourage world trade cooperation, he also stated that 40% of investment in asean come from rcep members.62 with the covid-19 pandemic, investment in several countries has decreased, but after this pandemic some foreign investors will look to countries that are able to handle various infrastructure problems, clean energy and a good level of investment. if we look at indonesia, which is still struggling with the handling of the recent decline in covid-19 pandemic cases, coupled with the emergence of covid-19 variants such as delta and omicron, investors will be hesitant in choosing indonesia as an investment destination. therefore, the benefits of indonesia as a member of the rcep are predicted to be an investment stimulant with progress in terms of exports because if the level of investment value is the same as that of trading partners, there may be similarities in variations in bilateral exports from several partner countries.63 research conducted by yunarwanto, in the study of the ministry of economy and finance shows that the gdp of rcep member countries statistically affects indonesia's trade volume by 0.47 percent this is due to geographical proximity.64 but on the other hand, indonesia's trade volume will be increasingly integrated in the rcep agreement, namely with institutional effectiveness, improvement of corruption and clarity of the 62 unctad, “new asian trade bloc could help boost post pandemic investment,” united nations conference on trade and development, 2020, https://unctad.org/news/new-asian-trade-bloc-could-help-boost-post-pandemicinvestment . 63 ibid. 64 yunarwanto yunar, “dampak keikutsertaan indonesia di dalam rcep terhadap volume perdagangan “bukti dari gravity model,” kajian ekonomi dan keuangan 3, no. 2 (2019): 151–60. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 175 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia licensing system and legal certainty. although gdp is very influential on investment and the indonesian economy, the tariff setting policy is also a determining factor in regional trade competition such as rcep. in terms of the investment regime, to take advantage of competitiveness in the opportunities in the digital industry sector, the rcep agreement will also encourage the growth of fdi in the new industrial sector which has the potential to become a domestic and global supply chain. so, as i explained earlier, relying solely on business and the industrial climate will not be able to, because investors will look to countries that are most ready to develop the 4th industrial revolution which also supports the investment regime in terms of ease of doing business in the host country. therefore, the urgency of rcep for indonesia is how to deal with various opportunities that exist both from investment factors and infrastructure development and support opportunities for msmes in supporting rcep market needs. this is in line with the initial idea of changing various regulations as stated in the job creation act. foreign investors cannot simply expect laws, regulations, against asean members to remain unchanged during the life of the investment, but foreign investors will pay more attention to investment risks by looking for updated news regarding the policies contained in the asean regional investment treaties such as rcep.65 so it is undeniable that asean member states such as indonesia may find itself to take interest measures to ensure the investment treaties communities. in this case, the rcep agreements will provide transparent and predictable investment rules for members to be able to commit to the rcep draft investment chapter which will provide a positive signal to investors. donna gultom as a board of directors center for indonesian policy studies (cips) stated that indonesia must ratify the regional comprehensive economic partnership (rcep) because indonesia will get real economic benefits by making structural adjustments and policy 65 diane a desierto, “asean investment treaties, rcep, and cptpp: regional strategies, norms, institutions, and politics,” wash. int’l lj 27 (2017): 349. http://creativecommons.org/licenses/by-nc-sa/4.0/ 176 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia adjustments with the implementation of the job creation act.66 donna also added that the implementation of rcep will increase investment in creating a new conducive industry by removing tariff barriers. realistically, the development of investment in indonesia is strongly influenced by the existence of the rcep agreement with its advantages in terms of tariff elimination and harmonization of the rule of origin. with the reduction of tariffs by rcep member countries, it will affect the supply chain which reduces dependence on outside parties and gives investors the opportunity to invest in member countries. thus, rcep provides an opportunity for indonesia to open market access and provide answers to problems related to harmonization of standards, regulations, mutual recognition, and increasing investment transparency. rcep has entered into force on january 1, 2022, so it must be addressed appropriately because indonesia lacks competitiveness, infrastructure, connectivity, and education. conclusion the conclusion of this research is: first, weaknesses of indonesian investment law in the context of rcep especially in law no. 11 of 2020 there is no transparency, public participation, investment protection, fair and equal treatment, and the absence of legal certainty for foreign investors to invest in indonesia which is not in accordance with the investment objectives in the rcep agreement. besides that, corruption and the covid19 pandemic are also one of the obstacles to the quality of investment in indonesia. secondly, the urgency of the rcep agreement establishes mutually beneficial economic zones especially to support the development of investment in indonesia. thus rcep will encourage the growth of foreign investment to enter indonesia and at the same time become an 66 m. razi rahman, “perekonomian indonesia bisa mendapatkan manfaat nyata dari rcep,” antaranews.com, 2021, https://www.antaranews.com/berita/2610489/perekonomian-indonesia-bisamendapatkan-manfaat-nyata-dari-rcep. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 177 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia opportunity for indonesia to give birth to a new industry that is conducive to the existing investment climate, as long as indonesia is able to respond well. the government should be able to take advantage of this opportunity by eliminating several restrictions, supporting ease of doing business, amanding laws and regulations flexibly, and applying the principle of openness to the general public. while, the business actors in indonesia should also take advantage of this opportunity to innovate superior products that have regional competitiveness such 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“dampak keikutsertaan indonesia di dalam rcep terhadap volume perdagangan “bukti dari gravity model.” kajian ekonomi dan keuangan 3, no. 2 (2019): 151–60. http://creativecommons.org/licenses/by-nc-sa/4.0/ 182 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia zakharov, nikita. “does corruption hinder investment? evidence from russian regions.” european journal of political economy 56 (2019): 39– 61. acknowledgment none funding information none conflicting interest statement the authors states that there is no conflict of interest in the publication of this article. publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. about author(s) ega prabandari kusuma is a student at faculty of law universitas islam indonesia. siti anisah, dr., s.h., m.hum., is a permanent lecturer of faculty of law universitas islam indonesia since 2001. some of his recent publications such as perbandingan pengaturan penyelenggaraan pendidikan profesi advokat (ppa) di indonesia dan amerika serikat (jurnal arena hukum, 2017), klausula pembatasan dan pengalihan tanggung jawab pialang berjangka dalam kontrak baku pemberian amanat secara elektronik on-line (jurnal hukum ius quia iustum, 2017), batasan melawan hukum dalam perdata dan pidana dalam kasus persekongkolan tender (jurnal hukum ius quia iustum, 2018), the use of per se illegal approach in proving the price-fixing agreements in indonesia (jurnal media hukum, 2020), analisis penguasaan pasar pada pelayanan jasa bongkar muat petikemas oleh pt pelindo iii di pelabuhan http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 183 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia l. say maumere (jurnal hukum ad adl, 2021), penerapan private enforcement dalam penegakan hukum persaingan usaha di indonesia, amerika serikat dan uni eropa (jurnal penegakan hukum indonesia, 2021), analisis pasar bersangkutan dalam putusan kppu (studi putusan perkara no. 13/kppu-i/2019 dan 10/kppu/-1/2016), (jurnal hukum ad adl, 2022), the sui generis nature of indonesia investment authority, proceedings of the second international conference on public policy, social computing and development (icoposdev 2021), series: advances in social science, education and humanities research (atlantis press, 2022). http://creativecommons.org/licenses/by-nc-sa/4.0/ 184 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia it's not whether you're right or wrong that's important, but how much money you make when you're right and how much you lose when you're wrong. george soros http://creativecommons.org/licenses/by-nc-sa/4.0/ 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 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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: 7fbf23ce1e8320b5 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 3(4) 2022 567 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 4, october 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: july 11, 2022 revised: august 21, 2022 accepted: october 25, 2022 available online since: october 31, 2022 how to cite: asa, simplexius. “study of the verdict of constitutional court on regional leaders election dispute in the province of east nusa tenggara in 2018”. journal of law and legal reform 3, no. 4 (2022): 567-588. https://doi.org/10.15294/jllr.v3i4.59712. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: review article study of the verdict of constitutional court on regional leaders election dispute in the province of east nusa tenggara in 2018 simplexius asa facullty of law, university of nusa cendana kupang, ntt, indonesia  asasimplexius@yahoo.com abstract direct election of the regional or local leaders began in several provinces in 2005 while the regional elections in the province of nusa tenggara timur (ntt) materialized in 2008; it became an attractive affair captivating the attention of the people both at the provincial and at the district level. the election has been a momentum of the people to flourish democratization and open pathways to advance the development of the http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i4.59712 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/59712 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/59712 https://journal.unnes.ac.id/sju/index.php/jllr/article/view/59712 568 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia area. since then, eleven (11) local elections took place in ntt in 2018 consisting of 10 (ten) local elections to elect the local officeholders at the district or municipality level and 1 (one) regional election to elect governor were held simultaneously on 27 june 2018 in which 50% of the elections filled a lawsuit against the dispute of the local election result to the constitutional court in which all submissions were rejected due absence of legal standing and inadequate reason. the study is made to scrutinize and to understand the local elections that took place in 2008 and 2018 and the disputes for the reference of the prospective regional leaders participating the 2020 election contest. the qualitative documentary research uses descriptive analytical approach to examine the implementation of the constitutional court rules and regulation were based on three (3) conditions namely (1) the authority of the constitutional court; (2) the legal standing of the supplicants, and (3) the tolerance to the time allotment. the outcome shows that 3 (three) things attributed to thcourt of the lawsuit by the constitutional court namely (1) the delicacy of the juridical status and insufficient legitimate reasons of the claim; (2) the inability to persuasively present substantiation in the court; and (3) the invalid legality of the lawsuit. keywords: verdict of the constitutional court, dispute of local election introduction a robust indication about the implementation of direct local elections has existed since the second amendment to the 1945 constitution of the republic of indonesia (uud 1945). in the provisions of article 18 paragraph (4) of the 1945 constitution that stated: "governor, regent and mayor respectively as head of provincial, regency and city government are elected democratically". stronger solid indication appears when article 62 of law number 22 of 2003 on the composition and position of the people’s consultative assembly (mpr), the house representatives (dpr), the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 569 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regional representative council (dpd), and the regional legislative council (dprd) negates the duty and authority to elect regional heads and deputy regional heads. the above is also supported by changes in the system of government and state administration in the reform agenda which are important and absolute. the spirit of the system of government and state administration began by replacing the centralized law (uu) of regional government number 5 of 1974 with law number 22 of 1999 which carried the spirit of decentralization and regional autonomy. as law no. 22/1999 has not regulated the direct election of regional heads yet, law no. 22/1999 was replaced with law no. 32/2004 on regional government. the local leaders’ elections in several provinces in indonesia began in 2005 while the local elections in ntt province commenced in 2008 and become a very interesting activity that attracted public attention both at the provincial level and in regencies and municipalities spread across the province. it was uniquely becoming interesting activities in the era of regional autonomy that actively involved the voters from the preparation stage to implementation stage when the people determine and chose the regional or local leader for themselves. significantly crucial as the people regarded the momentum as strategic steppingstone to bring about changes and advancement of holistic development in the area, in addition to that of nurturing the democratization in indonesia; it withdrew people’s attention and absorbed people’s faculties to seize the momentum and compete to win their candidate. the event became the headlines of most of the electronic and printing media at national and local levels. an interesting phenomenon occurred in 2014, where through law number 23 of 2014 concerning government, the duties and authority to elect a governor were taken back from the people and handed over to the regional legislative council, while the duties and authority to elect a regent/mayor were taken back from the people and handed over to the regency/municipal legislative council. this provision sparked protests and even anger from many parties, both academics, activists, and politicians. the people considered the direct election as democratic spring http://creativecommons.org/licenses/by-nc-sa/4.0/ 570 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that was born from the womb of democracy and was proud of it but was killed. the government under president soesilo bambang yudhowereo (sby) and the house representatives for that period was criticized and urged to cancel this provision. government regulation in lieu of law (perppu) number 2 of 2014 abolished the authority to elect a governor from the regional legislative council and the authority to elect a regent/mayor from the regency/municipal legislative council to subsequently re-transfer the authority to the people. the change was followed by the issuance of several regulations in lieu of law and/or laws, including law number 8 of 2015 concerning amendments to law number 1 of 2015 concerning stipulation of government regulations in lieu of law number 1 of 2014 concerning election of governors, regents, and mayors to become law number 9 of 2015 concerning the second amendment to law number 23 of 2014 concerning regional government. eleven (11) regional or local elections took place in ntt province in 2008, consisting of 10 (ten) regent and deputy regent elections and 1 (one) the governor and deputy governor election that were conducted simultaneously across the province on 27 june 2018. five of the ten regent/city elections (50%) held in the regent of (1) southwest sumba, (2) rote ndao, (3) east manggarai, (4) alor, and (5) timor tengah selatan, filed a lawsuit over the dispute over the results of the election to the constitutional court. method this article was written as a normative study based on documentary research, while the analysis of the collected data is carried out and presented in a qualitative-descriptive manner. the main source of data needed in the study is court’ verdict of constitutional court on regional leaders election disputes in the province of est nusa tenggara combined with library materials obtained from existing literature searches such as http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 571 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia journals, published research reports and literature. furthermore, to enrich the findings in the study, primary data was collected through interviews and/or in-depth interviews with resource persons/informants. theoretically, document study is also referred to as literature review, which is a study based on existing documents in the form of written library materials, as well as non-library materials in the form of recordings, virtual forms, and films. creswell added that the documents referred to include public documents such as minutes of meetings and newspapers and discussions via email. result & discussion i. local election dispute in ntt and their current development the press release issued by the constitutional court on friday, january 30, 2009, explained that during 2008 from january to december 2008, the court had received, examined, and tried 27 electoral dispute cases of the regional head elections. the results generally stated that the majority or 85.2% of the cases were either rejected or not accepted. in detail, 20 disputes or 74.1% of the cases were declared rejected, 3 disputes or 11.1% of the disputes were declared unacceptable (dutch: niet ontvanklijke verklaard / no) and only (14.8%) were partially granted. the data of regional head election disputes during the period january to december 2008 is presented in table 1 below. table 1. election dispute list at the constitutional court year 2008 no applicants/attorney of power/ respondent case number court decision 1 applicant: drs. h. asrin naim and drs. h. legimun s, m.pd, applicants’ legal attorney: benyamin, s.h., et al respondent: general election commission (kpu) district (kabupaten) langkat 66/phpu.dvi/2008 rejected http://creativecommons.org/licenses/by-nc-sa/4.0/ 572 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia no applicants/attorney of power/ respondent case number court decision 2 applicant: yansen akun effendy and abdullah, applicants legal attorney: raymundus loin, s.h. and cristof h. purba, s.h. respondent: kpu kabupaten sanggau 64/phpu.dvi/2008 rejected 3 applicants: h. asmauddin and salmaza; applicant legal attorney: drs. jurnal, s.h., m.h., et al; respondent: kip kota subulussalam 65/phpu.dvi/2008 rejected 4 applicant: sujiwo and raja sapta oktohari, applicants legal attorney: rezki, sh 63/phpu.dvi/2008 rejected 5 drg. gregorius mau bili f., ddph and drs. berchmans mau bria, m.sc. 62/phpu.dvi/2008 rejected 6 applicant: ir. h. ami taher and dianda putra, s.stp, msi; applicants legal attorney: zainudin paru, s.h., et al; respondent: kpu kabupaten kerinci 61/phpu.dvi/2008 rejected 7 applicant: drs. parlemen sinaga, mm and dr. budiman simanjuntak, m.kes; applicant legal attorney: roder nababan, horas siagian; respondent: kpu kabupaten dairi 61/phpu.dvi/2008 rejected 8 applicant: h. reskan effendi and dr. drh. rohidin mersyah, mma, 57/phpu.dvi/2008 partially accepted 9 applicant: h. rahmad pardamean haasibuan and aminusin m. harahap 55/phpu.dvi/2008 rejected 10 applicant: ir. roy mangontang sinaga and ir. djudjung pangondian hutauruk 49/phpu.dvi/2008 partially accepted 11 applicant: drs. daniel banunaek, ma and drs. alexander nakamnanu 44/phpu.dvi/2008 partially accepted 12 applicant: herson tanuab, sh and ir. vivo enu ballo 45/phpu.dvi/2008 rejected 13 applicant: hj. khofifah indar parawansa and mudjiono 41/phpu.dvi/2008 partially accepted 14 applicant: hi. samsudin madja, sh. and a. renreng palloloi 43/phpu.dvi/2008 not accepted 15 applicant: dr. ramon amiman and drs. martin l. maabuat 39/phpu.dvi/2008 16 applicant: h. a. idris manggabarani and h. a. muh. adil patu, applicant’s legal attorney: dr. kamri ahmad, s.h., m.h., et al, resondent: kpu kota makassar 36/phpu.dvi/2008 rejected 17 applicant: aladin s. mengga and h. andi muhammad ain manggabarani, applicant’s legal attorney muhammad hatta, s.h., dkk termohon kpu kabupaten polewali mandar 35/phpu.dvi/2008 rejected 18 h. basmin mattayang h. buhari kahar muzakkar 35/phpu.dvi/2008 rejected http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 573 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia no applicants/attorney of power/ respondent case number court decision 19 applicant: reyneilda m. kaisiepo, s.si., mth and max richard funmawi krey, amd., ts 37/phpu.dvi/2008 rejected 20 applicant: h. a. asmidin and drs. h. mohammad ridwan, m.pd 34/phpu.dvi/2008 rejected 21 applicant: thariq modanggu, s.ag. m.pd and djafar ismail 31/phpu.dvi/2008 rejected 22 applicant: h. sjamsuddin zainal, s.e.,and m.p djahini, s.h 38/phpu.dvi/2008 rejected 23 applicant: iskandar, se kukuh pudiyarto 29/phpu.dvi/2008 rejected 24 applicant: drs. kasman lassa, s.h 28/phpu.dvi/2008 rejected 25 applicant: dr. h. djakaria machmud, s.e., s.h., m.si. and pra. arief natadiningrat, s.e. 30/phpu.dvi/2008 rejected 26 applicant: drs. h.m. ali usman, m.si and a. fahrun paturusi, se 40/phpu.dvi/2008 not accepted 27 applicant: h. bachtiar basri, s.h., m.m. and slamet haryadi, s.h., m.hum. applicants’ legal attorney: abi hasan mua’an, s.h., et al joined by the lawyer team of bactiar-slamet” 25/phpu.dvi/2008 not accepted source: http://www.mahkamahkonstitusi.go.id the local election to elect the governor and the regent was conducted 13 times in the province of ntt during 2008; one was to elect the governor and 9 times was to elect the head of the district. the details are shown in the following table: table 2. local election of governor & regent in the province of ntt (2008) no district / province f round i round ii dispute 1. district of sikka 1 16-042008 2. district of nagakeo 1 16-07-2008 3. district of manggarai timur 2 30-09-2008 30-12-2008 4. district of sumba tengah 1 08-09-2008 5. district of sumba barat daya 1 14-10-2008 6. district of rote ndao 2 13-10-2008 13-12-2008 7. district of timor tengah selatan 2 23-10-2008 16-12-2009 *)  8. district of kupang 2 29-10-2008 30-12-2009  9. district of belu 2 11-10-2008 09-12-2008  10. province of ntt 1 14-06-2008 source: kpu prov. ntt *) re-election of regional head in some sub districts http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.mahkamahkonstitusi.go.id/ 574 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the table above shows that the regional head election that took place in ntt province contributed 3 (three) of the 27 cases/disputes that were received, examined, and tried by the constitutional court, namely: (1) the dispute over the regional head election of the district of timor tengah selatan, (2) election of regional head of kupang district and (3) election of regional head of belu district. the data in table 1 also shows that the constitutional court has decided to partially accept the applicant’s demands in the dispute over the regional head election in timor tengah selatan district however the other two disputes, on behalf of the applicants herson tanuab, sh and ir. vivo enu ballo for the dispute over the election of the regional head of kupang regency; and the applicant drg. gregory mau bili fernandez, ddph and drs. berchmans mau bria, msc for the dispute over the election of the regional head of belu regency; rejected by the constitutional court. basic assumptions drawn from the data includes: 1. the knowledge and understanding of the formal and juridical material of the election dispute is still very scarce 2. the evidentiary process carried out is not persuasive so that it is unable to convince the constitutional court that the issues argued are factual and true. 3. the constitutional court has thus granted some of the petitions from the tts district, but rejected the petitions submitted by the applicants from belu and kupang district. it should be noted at this point that going forward, the general election will be to elect the president and vice president, governor and deputy governor, regent/mayor and deputy regent/deputy mayor as well as to elect members of the regional representatives council (dpd), the people's representative council of the republic of indonesia, the provincial people's representative council and the regency/city regional people's representative council will be held simultaneously. in 2018 in ntt province, 11 (eleven) local elections took place simultaneously, consisting of 10 (ten) local elections to elect the regent and deputy regent and 1 (one) local to elect the governor. the local http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 575 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia elections were held simultaneously on 27 june 2018. five of the ten local elections held to elect the regent in 5 (five) regencies or 50% (fifty percent) to elect the regent and deputy regent among others, filed a dispute over the results to constitutional court. the details are shown in the following chart. table 3. disputes of local election of governor and regent in ntt (2018) no district / province file dispute to constitutional court yes no 1. district of sikka  2. district of nagakeo  3. district of sumba tengah  4. district of timor tengah selatan  5. district of kupang  6. district of ende 7. district of alor  8. district of rote ndao  9. district of sumba barat daya  10. district of manggarai timur  11. province of ntt source: provincial kpu and http://www.mahkamahkonstitusi.go.id facts and data show that not less than 50% (fifty percent) of the results of the local elections are sued (requested for judicial review) to/in/by the constitutional court, so that when the general elections are held simultaneously, the constitutional court will experience a pile of election disputes, generally number is very large. on the other hand, about 75% (seventy five percent) of the lawsuits submitted to the constitutional court were declared inadmissible (dutch: niet ontvanklijke verklaard). therefore, it is necessary to examine the formal juridical requirements that must be considered in the context of filing a dispute over the results of the general election to the constitutional court and on the other hand to see the suitability of the application of these requirements in the dispute over the results of the local election submitted by the applicants against the results of the local elections which took place in five districts in the province of ntt. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.mahkamahkonstitusi.go.id/ 576 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia based on the data and facts above, several critical questions were raised, including: 1. what are the formal and juridical material requirements that must be met in an application for dispute over the regional head election? 2. what reasons were put forward by the applicants in their application to the constitutional court to examine, to hear and to decide on disputes over the results of the regional head elections? 3. what are the considerations of the constitutional court in granting or rejecting the application for examination of the regional head election dispute submitted by the applicant? taking into account the urgency aspect and especially its relevance, the study below focuses more on the latest legal materials submitted to the constitutional court in the 2018 dispute. in 2018 there were five (5) regions with 6 (six) cases/applications for examination of local elections disputes submitted by applicants from ntt, respectively: 1. tarsisius sjukur, ss and yoseph byron aur, s.sos as recorded in the constitutional case registration book with case number 16/ php. bupxvi/2018 on july 23, 2018; 2. drs. obed naitboho, m.sc., and alexander kase, s.pd.k based on the deed of submission of the petitioners' application number 53/1/ pan. mk/2018, the petitioner's petition was filed at the registrar's office of the court on tuesday, july 10, 2018; 3. drs. mesakh nitanel nunuhitu, m.sc., and drs. samuel conny penna as recorded in the constitutional case registration book with case number 23/ php. bup-xvi/2018 on july 23, 2018; 4. bima theodorianus fanggidae and drs. erenst salmun zadrak pella, m.si as recorded in the constitutional case registration book with case number 14/ php.bup-xvi/2018 on 23 july 2018; 5. dr. immanuel ekadianus blegur, m.sc. and h. taufik nampira, sp, m.m. as recorded in the constitutional case registration book with case number 60/ php. bup-xvi/2018 on july 23, 2018; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 577 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 6. markus dairo talu, s.h. and gerson tanggu dendo, s.h. as recorded in the constitutional case registration book with case number 49/ php. bup-xvi/2018 on july 23, 2018. in the decision of the constitutional court against the dispute submitted, it turned out that most of them were declared unacceptable / niet ontvanklijke verklaard. there are 3 (three) things considered by the constitutional court in relation to formal and material juridical requirements, namely (1) aspects of the court's authority, (2) the legal standing of the applicants, and (3) the grace period for submitting the application. based on the data and facts, the reasons used to apply for the examination of the dispute over the regional head election are: (a) there is an inflated vote made by the respondent to win one pair; (b) there is a reduction in the number of valid votes in one of the pairs; (c) general election commission (kpud) and election supervisory committee (panwaslu) carry out elections in an undemocratic manner and do not heed the principles of holding constitutional elections; (d) money politics; (e) involvement of state civil apparatus (asn); (f) the existence of a criminal act in the general election/elections in the form of the use of violence and fraud that is carried out systematically by and for the benefit and victory of certain pairs of candidates for regional head and deputy regional head; and (g) elections are not held in a direct, open, free, confidential, and honest and fair manner (violation of the luber & jurdil principle). several parties (applicant, respondent, and related parties) quoted the writings and studies of the honorable judge of the constitutional court prof. saldi isra, who stated: “… from the start, i was one of those who pushed for a certain percentage limit to be able to submit a dispute request to the constitutional court. however, these restrictions are not intended to eliminate the opportunity for pairs of candidates who feel totally cheated to choose the path to the constitutional court. this means that the threshold can still be breached http://creativecommons.org/licenses/by-nc-sa/4.0/ 578 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia through a preliminary examination mechanism (dismissal process) if the applicant is able to show very strong evidence that a tsm violation has occurred. as has been accepted in several decisions, because of its position and nature as a constitutional court, the constitutional court must not allow the rules of procedural justice to stifle and override substantive justice because the legal facts as described above constitute a violation of the constitution, especially article 18 paragraph (4) of the 1945 constitution which requires that local elections be conducted democratically, and does not violate the principles of direct, general, free, secret, honest and fair elections as stipulated in article 22e paragraph (1) of the 1945 constitution. the constitutional court once decided that in guarding the constitution, the constitutional court could not allow itself to be shackled by procedural justice alone, but also had to realize substantial justice. moreover, previously through decision no. 41/phdu.d-iv/2008 regarding the dispute over the results of the east java post-conflict local election, the constitutional court has also considered that in order to maintain a balance in the application of the principles of justice, legal certainty and the principle of benefit in the implementation of justice, the constitutional court cannot be confined only by the sound of the law but must explore sense of justice by remaining guided by the substantive meaning of the law itself. if it is consistent with these considerations, the space for hitting the threshold is certainly wide open.” based on the quote, the petitioners then stated that the democratic general elections in case the local election cannot be created if the spaces to achieve them are limited and closed to be resolved through a judicial mechanism if a dispute arises in the process, especially if the applicant finds a difference in votes between the applicant and the candidate. the candidate pair that has the most votes is based on a method that is against the law or fraud which is carried out in a structured, systematic and massive way. as mentioned earlier, although it is carried out in the context of building a democratic indonesian state, the implementation of the election leaves http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 579 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia many serious problems, both for candidates and/or for political parties that carry a candidate for regional leader as well as for the community supporting certain candidates and political parties. in fact, this problem has given rise to many election disputes since 2005 until now. according to his excellency, the former justice of the constitutional court, prof. maruarar siahaan, all disputes that can occur in the regional head election process as regulated in law no. 32 of 2004 and government regulation number 6 of 2005, can be divided into 4 (four) categories, namely: 1. election disputes that do not contain a criminal element. 2. election disputes that contain criminal elements. 3. disputes of an administrative nature. 4. disputes over the results of the vote count were determined by the kpud. furthermore, his excellency, the former judge of the constitutional court, prof. maruarar siahaan that all dispute resolutions must be synchronized in the time frame. this means that the dispute resolution must have been achieved at each stage of the local election implementation so that the results can be used as material for the next stage of dispute resolution. the results of the settlement, especially regarding disputes containing criminal aspects, can be used as evidence in determining disputes over the results of the regional head election, if necessary. it should also be noted that not all disputes must be resolved by the judiciary. there are disputes that do not have a criminal aspect, and therefore must be resolved by the supervisory committee. likewise, disputes of an administrative nature, such as the administrative requirements of a candidate for regional head and/or deputy regional head, requirements to be registered as voters and requirements to vote and be elected. the data and facts above provide a temporary picture that the public (in this case the petitioner) has not yet understood the juridical requirements needed to dispute the election results with the regions in the constitutional court. while confirming the statement from his excellency, the former justice of the constitutional court, prof. maruarar siahaan, we need to pay attention to the conditions in the form of structured, systematic and massive http://creativecommons.org/licenses/by-nc-sa/4.0/ 580 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia errors/errors/frauds in the implementation of the general elections which were introduced from the nature and requirements of the 1945 rome statute for the international court of justice to try international crimes, including genocide, crimes against humanity and war crimes. ii. consideration of the constitutional court the consideration of the constitutional court is always formally related to 3 (three) things, namely: (1) aspects of the authority of the constitutional court; (2) the legal standing of the applicants, the respondent and related parties; and (3) the grace period for submitting the application. in considering its authority, the constitutional court always checks the provisions of article 157 paragraph (3) of law number 10 of 2016 concerning the second amendment to law number 1 of 2015 concerning stipulation of government regulations in lieu of law number 1 of 2014 concerning the election of governors, regents, and the mayor becomes a law, the case of disputes over the determination of the results of the election is examined and tried by the constitutional court until a special judicial body is formed. regarding this matter, in a formal juridical manner, the legal standing of the petitioners according to article 2 letter a and article 3 paragraph (1) of the regulation of the constitutional court number 5 of 2017 concerning guidelines for proceeding in cases of disputes over the election results of governors, regents, and mayors states that the parties in a dispute over election results are (1) the petitioner; (2) respondent; and (3) related parties. specifically for the petitioners are (1) pairs of candidates for governor and deputy governor; (2) pairs of candidates for regent and deputy regent; and (3) pairs of candidates for mayor and deputy mayor. the respondent is the organizer of the election while the related party is the election supervisory body (bawaslu) and/or the party that is announced/determined as the winner in the election contest. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 581 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia furthermore, for the material for the application to be considered by the judge (mk), it must be followed by supporting evidence provided by the petitioner, respondent and related parties. proof is a process of providing certainty to the judge by using valid evidence, so that the judge is thus confident, as certain as possible that what is argued by one of the parties contains factual and juridical truth. according to the provisions of article 9, constitutional court regulation number 15 of 2008, evidence in disputes over the results of the election can be in the form of: (a) statements of the parties, (b) letters or writings, (c) statements of witnesses (d) statements of experts, (e) instructions, and (f) other evidence in the form of information and or electronic communications. in careful observation of the petition submitted by the petitioners, the argument was found that the violations committed by the respondent were structured, systematic and massive (tsm), so that the verification process became much more difficult than proving the existence of partial fraud. sporadic and casuistry may occur. it is understandable on the one hand – as something that can happen and is commonplace – because the regional election is the largest people's party organized by the state in an autonomous region with all its advantages and disadvantages, with all its advantages and disadvantages and, with all its freedoms and limitations. it is understood on the other hand that even if there are those who partially, sporadically, and casuistically make mistakes, errors or fraud (?) in the implementation, it is very difficult if not impossible to state and/or can be proven as something structured, systematic and massive. according to m. mahrus ali, et al in the abstract of the article entitled, constitutional interpretation of systematic, structured and massive regional election violations, namely the results of research published in the journal of the constitution volume 9, number 1, march 2012, stated: “the results of the study show that during 2008-2011 the constitutional court has granted 32 (thirty-two) cases of regional head election disputes. http://creativecommons.org/licenses/by-nc-sa/4.0/ 582 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of these, 21 (twenty-one) cases were tsm. meanwhile, the nature of tsm in these decisions is divided into 2 (two) namely cumulative and alternative, both of which can invalidate the results of the regional head general election. there are 3 (three) types of violations in the regional head election, first, violations in the process that do not affect the results of the regional head election. second, violations in the regional head election process that affect the results of the regional head general election; third, violations related to the requirements to become a candidate that are principled and can be measured. election violations that are tsm in nature are violations committed by structural officials, both government officials and local election organizers, not collectively, not individual actions, carefully planned (by design) and the impact of these violations is very broad, not sporadic.” observing the views of mahrus ali, et al above and paying attention to the reasons stated in the application submitted to the constitutional court as previously mentioned, there are three reasons that can be correlated with the possibility of a tsm, namely: (1) kpud and panwaslu carry out elections in an undemocratic manner and do not heed the principle of holding a constitutional election; and (2) involvement of the state civil apparatus (asn), which of course is supported by the existence of (3) money politics. the three are very closely related, one influencing the other so that they can be distinguished but cannot be easily separated. it turns out that a violation can and can only be said to have fulfilled the tsm requirements if it is carried out by structural apparatus, both government officials and local election organizers, not collectively, not individually, carefully planned (by design) and the impact of this violation is very broad, not sporadic. to ensure that there is an effort to move asn and/or election organizers to work in a massive and structured manner, it is necessary to first determine the greatest interest that can be used as a motive and reason for involvement. in such a case, it is necessary to first emphasize that asn and/or election organizers are passive, not neutral parties. it is said to be http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 583 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia passive because in the general election, all of them (read; asn and election organizers) still have the right to vote, and therefore there must be a constitutional guarantee that each of them is one man, one right, one value and one vote. their involvement can only be said to be in violation if each of them abuses the authority, opportunity or facilities available to them because of their position or position as asn and/or election organizers to mobilize prospective voters to win certain candidate pairs (paslon). furthermore, it is also necessary to investigate further, their position in the winning structure of the paslon, whether as the giver of orders and/or controllers of the operation or only as the executor of the operation. in the event that they are in the position of giving orders and/or controlling operations, the executor of the operation as far as possible must be people who are in the 'handle' of their power and control, taking into account several supporting criteria, namely: (1) the existence of a superiorsubordinate relationship ( superior-subordinate relationship) namely that the giver of orders/controllers oversees the operations, both de jure and de facto where they have the authority to give orders; (2) knowing or should have known (had reason to know) the actions of subordinates or people under their control (latin: mens rea); and (3) not taking proper preventive measures (latin: actus reus). if you look at the conditions above and pay attention to whether there is accessibility to asn and/or election organizers, the party who has a high chance of being the giver of orders/controllers may only be in the paslon with the incumbent status who actually has control over the asn and/or the election organizer. for the incumbent candidate pair, the opportunity to be the giver of structured operations orders/controllers is very small if not said to be non-existent, except by carrying out money politics to mobilize and influence the choices of constituents/voters. proving the existence of tsm does not only require much greater effort, effort and/or mobilization of resources but also takes a very significant amount of time and cost. and behind all that, even if it can be proven that there was an error and/or fraud (quad-non), it is much more difficult to draw a connection between the error/cheat as an advantage for http://creativecommons.org/licenses/by-nc-sa/4.0/ 584 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the winning pair / co-respondent, considering the election (read: presidential election, legislative election), pilkada/election) adheres to the direct, open and free of secrecy – honest/truthful and fair (luber-jurdil) principle. the sub-optimal proving process carried out by the applicants, for example in presenting witnesses who can significantly meet the quality and quantity requirements, providing written evidence that meets formal juridical requirements, as well as competent experts, is the cause for the rejection of all of the applicant's applications by the court. it is also interesting to pay attention to the regulation of the constitutional court number 15 of 2008, which has made it possible to use remote examination facilities in the form of video conferencing, especially for the examination of witnesses. especially for the ntt province, this facility is available in the video conference room of the faculty of law, nusa cendana university, kupang. the following conclusions and suggestions are drawn for the discussion. conclusion 1. understanding of formal and juridical material requirements in election disputes is still very limited, so that in: a. decision on dispute over the election results of the regent and deputy regent of east manggarai regency, east nusa tenggara province, number 16/php.bup-xvi/2018; b. decision on dispute over the election results of regent and deputy regent of rote ndao regency, east nusa tenggara province number 23/php.bup-xvi/2018; c. decision on dispute over the election results of regent and deputy regent of rote ndao regency, east nusa tenggara province, number 14/php.bup-xvi/2018; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 585 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia d. decision on the dispute over the election results of the regent and deputy regent of alor regency, east nusa tenggara province number 60/php.bup-xvi/2018; e. decision on the dispute of election results for the regent and deputy regent of southwest sumba regency; and f. decision on dispute on the results of the election of the governor of east nusa tenggara province number 49/php.bup-xvi/2018; the constitutional court stated that the petitioner had no legal standing. meanwhile, in the decision on the dispute over the election results of the regent and deputy regent of south-central timor regency, east nusa tenggara province, number 61/php.bup-xvi/2018 regarding the re-election of votes, the constitutional court stated that the main application was unreasonable, so that in its decision all applications were rejected by the constitutional court. 2. the evidentiary process carried out is not persuasive – especially in relation to the requirements of proof which are unable to convince the constitutional court that what is argued is factual. 3. the constitutional court cannot accept the petition of the petitioner because the principle of the petition has no legal basis. suggestions 1. efforts are needed to understand more broadly and deeply about the formal and material juridical requirements of the election and election disputes. 2. in compiling the application for examination of the dispute over the results of the election and the election dispute discussion, the applicants need to pay attention to and prioritize the arguments or reasons that are easy and simple to prove but have an impact and leverage on the change in the vote count results. http://creativecommons.org/licenses/by-nc-sa/4.0/ 586 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. it is necessary to optimize the evidentiary process so that it can provide certainty and convince the constitutional court that the things postulated are factual and not just an outlet for disappointment. references ahmad syarif, peradilan konstitusi, studi tenang adjudikasi konstitusional sebagai mekanisme penyelesaian sengketa normatif, pt. pradnya paramita, jakarta 2005. anonymous, laporan tahunan mahkamah konstitusi tahun 2005, jakarta, http://www.mahkamahkonstitusi.go.id anonymous, laporan tahunan mahkamah konstitusi tahun 2006, jakarta, http://www.mahkamahkonstitusi.go.id anonymous, laporan tahunan mahkamah konstitusi tahun 2017, jakarta, http://www.mahkamahkonstitusi.go.id anonymous, laporan tahunan mahkamah konstitusi tahun 2018, jakarta, http://www.mahkamahkonstitusi.go.id anonymous, menegakkan negara hukum yang demokratis, catatan perjalanan mahkamah konstitusi tiga tahun : 2003–2006, http://www.mahkamahkonstitusi.go.id mahkamah konstitusi, jakarta, 2006. ariwobowo, et al, mendemokratisasikan pemilu, elsam, jakarrta, 1996. constitutional decisions and the verdict of all the related case. h. abdul latif, et al, buku ajar hukum aara mahkamah konstitusi, total media, jogyakarta, 2009. indonesian constitutional law of year 1945 and all the amandemen dokument of i, ii, iii and iv. indonesian law number 10 year 2016 of second revision of indonesian law number 1 year 2015 of stipulation of government regulation in lieu of law number year 2014 about governor, head of district and major elections to the indonesian law number 10 year 2016. indonesian law number 3 year 1999 of general elections. indonesian law number 3 year 2003 of constituional court. indonesian law number 4 year 2000 of the revision perubahan on indonesian law number 3 year 2003 tentang for general elections. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://www.mahkamahkonstitusi.go.id/ http://www.mahkamahkonstitusi.go.id/ http://www.mahkamahkonstitusi.go.id/ http://www.mahkamahkonstitusi.go.id/ http://www.mahkamahkonstitusi.go.id/ journal of law & legal reform volume 3(4) 2022 587 © author(s). this work is licensed under a creative commons attribution – non-commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia jurnal konstitusi yang diterbitkan oleh mahkamah konstitusi republik indonesia, volume ii-nomor 1, juli 2005. m. mahrus ali, et al; tafsir konstitusional pelanggaran pemilukada yang bersifat sistematis, terstruktur dan masif, pusat penelitian dan pengkajian mahkamah konstitusi republik indonesia acknowledgment none funding information none conflicting interest statement the author stated that there is no conflict of interest in the publication of this article. publishing ethical and originality statement the author stated and declared that all sources cited in this work adhere to the fundamental norms of scientific quotation, and that this work is entirely original and has never been published in any format or media or been accepted for publication in any journal. about author(s) dr. simplexius asa, s.h., m.h., is a lecturer at the university's faculty of law, specializing in procedural law. responsible for teaching the following courses: (1) criminal procedure law; (2) civil procedure law; (3) philosophy of law; and (4) legal research methods. apart from being active as a lecturer, he also works as head of the center for human rights studies, intellectual property rights, population, gender and children (h2kga) institute for research and community service (lp2m) undana. obtained a law degree from the university of nusa cendana kupang, as well as a master's and doctoral degree from the university of indonesia. http://creativecommons.org/licenses/by-nc-sa/4.0/ 588 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia all the great things are simple, and many can be expressed in a single word: freedom, justice, honor, duty, mercy, hope. winston churchill http://creativecommons.org/licenses/by-nc-sa/4.0/ 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 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cloudflare ray id: 7fbf23cf28591fef • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 2(3) 2021 329 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article letter c document as a preliminary evidence of ownership of land rights (study in kebumen district, indonesia) paryanto paryanto1 1 postgraduate program master of laws universitas negeri semarang, indonesia  paryanto@gmail.com cited as paryanto, p. (2021). letter c document as a preliminary evidence of ownership of land rights (study in kebumen district, indonesia). journal of law and legal reform, 2(3), 329-352. https://doi.org/10.15294/jllr.v2i2.46535 submitted: january 15, 2021 revised: february 21, 2021 accepted: may 11, 2021 abstract land is the main need for humans because human life cannot be separated from the soil. the indonesian state is increasingly experiencing developments in the arrangement of land ownership rights, which is followed by the issuance of regulations governing land. understanding of the initial evidence of ownership of land rights between the community and government institutions in conflict areas such as what happened in central java, the southern part of kebumen regency, there is an area called urutsewu. this creates a gap both vertically and horizontally, based on the legality of proof of ownership of legal property rights, namely a certificate, but to issue a certificate it must be preceded by initial evidence of ownership such as letter c books, sppt and other evidence available at the village level, in accordance with the law. basic agrarian law number 5 of 1960. from this description, what is the strength of the evidence for quoting the village letter c book in obtaining rights and what is the procedure for obtaining land rights, what is the status of ownership of land rights with evidence of village letter c quotations in the urutsewu area, regency of kebumen. keywords: land conflict, dispute, land rights, evidence, letter c document journal of law and legal reform (2021), 2(3), pp. 329-352. doi: https://doi.org/10.15294/jllr.v2i2.46535 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46535 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 330 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction the indonesian state has experienced developments in all fields, including the land sector, which is marked by the issuance of regulations governing land. in the midst of the development of land law, the community has not been able to fully understand the regulations in the agrarian sector (kartasapoetra, 1985). land is the main need for human life, because human life cannot be separated from soil. humans live on land and obtain food by utilizing the land, on the other hand land can cause disputes and wars because humans or a nation want to control the land of another person or nation because of the natural resources contained therein. the people who are most vulnerable to understanding or not getting information related to land regulations are rural communities even though most of their needs are met by growing crops with soil media. the legal understanding of the community regarding proof of ownership of land parcels is limited to a few that are considered proof of ownership, for example: letter c, girik, ketitir and petuk. however, based on the basic agrarian law number 5 of 1960 concerning basic agrarian provisions (hereinafter uupa), the strongest base of rights over a plot of land is a certificate (art. 19(2) c uupa). the problem is the reluctance of the community or the ignorance of the community to increase their rights to their property due to the fact that the land owned by rural communities has been passed down from generation to generation from their ancestors, the land ownership certificates they have are very minimal and some even do not have them at all. they have occupied and worked on the land for decades so that the people know that the land is theirs based on recognition without the need to know the land ownership documents. the village government as an extension of the central government, especially in the java region, the administration of community land ownership in the village originating from the yasan land is recorded or recorded in the village book which is commonly called the village c book or letter c. information on the existing land in the letter c book, the village is considered incomplete and less accurate when compared to the certificate, both in terms of land size, land boundaries, because of the transfer of rights, because in book c the village only explains: land parcels, class or type of land, both rice fields and land. land area, land area with less valid size, the origin of the land and the transfer of ownership is only carried out by crossing out moving to another c on the basis of transfer using the terms wr(waris), hb(hibah), ks(kasih), dj(djual), bl(beli),this will cause problems such as boundary disputes, land area disputes, ownership disputes and so on. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 331 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia with the existence of the basic agrarian law number 5 of 1960, it is hoped that it will guarantee more legal certainty regarding land, for example the provisions of article 19 of the uupa no. 5 of 1960. recognition of property rights on land is concreted with a certificate as proof of land rights based on article 19 paragraph (2) uupa no. 5 of 1960 and article 31 of government regulation no. 24 of 1997, in the context of implementing land registration. a land certificate proves that the right holder has a right to a certain plot of land. the letter c book is one of the requirements for obtaining land certificates in addition to other requirements such as sppt, family cards, id cards and land certificates that are not in dispute issued by the local village government. existing western land rights in kebumen regency, for example, the land of the former prembun sugar factory, vanderwijck gombong fort, former zending land (kebumen hospital) and others, on which the right to use the building and/or the right to use has been placed on the land. agricultural land in the urutsewu area of kebumen regency has never been placed on western rights. the land in the urutsewu area of kebumen regency is the same land asin general, in central java province, especially in kebumen regency, the lands belonging to the community which were originally known as yasan rights are identified or recorded in the administrative register of land ownership which is now known as the village c book and the land is known as letter c land, which has been in the management and control of the community so that it does not include the land referred to in the provisions of government regulation no. 8 of 1953 concerning control of state lands or more specifically that land in urutsewu is not qualified as state land. in some previous research found that the land and agrarian conflict between state and the citizens have been occurred in many regions in indonesia, and mostly the case concerning to the ownership rights disputes. further, for some cases, the agrarian conflict also violated some human rights principles (widayati, 2019; mujiburohman & kusmiarto, 2014; ubaidillah, 2016; akbar, 2017; illiyani, 2017). understanding of the initial evidence of ownership of land rights between the community and government institutions in conflict areas such as what happened in central java, the southern part of kebumen regency, there is an area called urutsewu. this creates a gap both vertically and horizontally, based on the legality of proof of ownership of legal property rights is a certificate, but to issue a certificate must be preceded by initial proof of ownership such as letter c, sppt and other evidence in the village. for land that has a minimal letter in the form of letter c, which is issued by the village government where the land is located, this letter c is the initial evidence in the form of notes that are in the village office. meanwhile, the parent of the letter c quote is found at the land and building tax service office. http://creativecommons.org/licenses/by-nc-sa/4.0/ 332 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia south coast farmers of kebumen regency, commonly called urutsewu, have local characters with symbols, idioms and local wisdom that have developed into horticultural agricultural areas. after the stipulation of the kebumen regional regulation on regional spatial planning (rtrw) number 23 of 2012 article 39 letter (a) national strategic area from the point of view of defense and security interests and article 40 paragraph (1) letter (g) tni training area, letter (h) tni training and testing areas, letter (i) weapon testing field, and paragraph (2) which mentions mirit subdistrict, ambal subdistrict and buluspesantren subdistrict as areas for hankam and military weapons testing (perda rtrw kebumen regency no. 23 of 2021). while the basic demands of the farmers of the urutsewu area, the area is an area that has been cultivated and controlled by farmers for generations long before the republic of indonesia was established, then in its development it will be transformed into an agricultural area and people's tourism. the javanese philosophy of sadumuk is that coughing is as gentle as the earth, the yen needs to be filled with starch. shows how close the relationship between humans and the land. every inch of land is self-esteem that will be defended with all the soul and body (cahyati, 2011). this means something that must be defended because it involves property rights and self-respect that is really manifested in the attitude of the farmers. this difference in interests then causes friction or what is called a land conflict or agrarian conflict in the urutsewu area. method this research used empirical legal research, that focused on the land rights in urutsewu kebumen, central java indonesia. some data obtained by analyzing some research documents and regulations. to complete the data and information, interview with some related persons also conducted by author. general overview concerning urutsewu case urutsewu is a term for a rural area on the southern coast of kebumen, central java. the name urutsewu is better known to the public, as a southern coastal area that stretches for 22.5 kilometers from the lukulo river, buluspesantren sub-district to the wawar river, mirit sub-district bordering purworejo. methodologically, chronological preparation is done by collecting documents containing the legal history of land tenure and ownership, visiting related locations, interviewing, and discussing field facts, citing secondary sources from related previous studies or research, as well http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 333 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia as information from the media. clarified or cross-checked. this is all done to provide descriptions, legal events, as well as a more complete legal analysis related to agrarian conflicts involving 15 villages with the tni-ad, in buluspesantren, ambal and mirit subdistricts, kebumen regency, central java. the history of the chronology of the urutsewu agrarian conflict can be traced from several periods; the period before indonesia's independence before 1945, the early period of independence between 1945-1970, the period of confiscation of people's land by the tni since 1970, the period of the tni in mining business and certificate of use rights on people's land. so that there are legal problems with mutual claims between the community and the tni-ad (personal interview, 2021). the early period of independence between 1945-1970, the period of confiscation of people's land by the tni since 1970, the period of the tni in mining business and certificate of use rights on people's land. so that there are legal problems with mutual claims between the community and the tni-ad (personal interview, 2021). the early period of independence between 1945-1970, the period of confiscation of people's land by the tni since 1970, the period of the tni in mining business and certificate of use rights on people's land. so that there are legal problems with mutual claims between the community and the tni-ad (personal interview, 2021). the definition of land status includes: (1) land rights; and (2) state land. land rights are land that has attached land rights as well as land rights based on the 1960 bal. state land is land that has not been attached to land rights based on the basic agrarian law. coastal land is flat sandy land on the edge of the beach, dry land area between the coastline at high tide and the highest coastline that can be reached by sea water when a typhoon hits (kbbi, 2019). based on the above, coastal land can be in the form of individual land rights, village communal land, or state power land, depending on physical and juridical evidence and legal arguments that accompany it. a. state land the latest terms and definitions of state land according to the government regulation of the republic of indonesia number 18 of 2021 concerning management rights, land rights, apartment units, and land registration. in accordance with article 1 paragraph (2), state land or land controlled directly by the state is land that is not attached to any land rights, is not waqf land, is not ulayat land and/or is not an asset of the state property, property of the region. as is known in government regulation no. 8 of 1953 concerning control of state lands established under the 1950 constitution, it can be concluded that state land is land that is fully controlled by the state which is used for two purposes, namely the interests of ministries, agencies and the interests of http://creativecommons.org/licenses/by-nc-sa/4.0/ 334 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia autonomous regions. if we conclude again, state lands are lands that are actually used for the benefit of government agencies, both at the central and regional levels. the 1945 constitution does not find the term state land, but according to article 33 paragraph (3). the earth, water and natural resources contained therein are controlled by the state and used for the greatest benefit of the people. similarly, in the basic agrarian law number 5 of 1960 which was established based on the 1945 constitution in 1960, also not found at all the term state land. only according to article 2, the basic agrarian law: a) on the basis of the provisions in article 33 paragraph (3) of the constitution and the matters referred to in article 1, the earth, water and space, including the natural resources contained therein, are at the highest level controlled by the state, as an organization of all power. people. b) the right to control from the state referred to in paragraph (1) of this article authorizes: 1) regulate and administer the designation, use, supply and maintenance of earth, water and space. 2) determine and regulate legal relations between people and the earth, water and space. 3) determine and regulate legal relations between people and legal actions concerning earth, water, and space. according to article 1 point 3 of government regulation no. 24 of 1997 concerning land registration, state land or land controlled directly by the state is land that is not owned with any land rights (government regulation no. 24 of 1997 on land registration). the question arises, is there really any land in the urutsewu area which does not have a certain right attached to it, at least on a piece of land the customary rights of the customary law community will be attached. b. the origin of state land in understanding the origin of the land of the state, our memories must return to the history of the formation of the indonesian nation. communities in this area have been living regularly in their respective customary law areas (adatechtkringen). because all land has been divided into customary law areas which are also divided into customary lands of customary law communities, so there is no dutch east indies state land. through colonialization by force of arms, finally the dutch were able to control the entire territory of the dutch east indies. after indonesia's independence, lands for public purposes, such as for railways, government offices, and so on, were obtained from community lands through compensation payments if there were customary rights on the land. the lands above are placed with beheer http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 335 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia rights, which are then translated into management rights. based on article ii of the transitional rules of the 1945 constitution, the dutch authority over the beheer land was continued by the indonesian government. meanwhile, according to the conversion provisions of the basic agrarian law article iii. a) the erfpacht rights for large plantation companies, which existed at the time this law came into force, from then on it became the right to cultivate as referred to in article 28 paragraph 1 which will last for the remaining term of the erfpacht right, for a maximum of 20 years. b) the erfpacht rights for small farms that existed at the time this law came into force were nullified and subsequently settled according to the provisions made by the minister of agrarian affairs. c. communal land ulayat land is land located in the territory of customary law community control which, in fact, still exists and is not attached to any land rights (art. 1 par. 13, government regulation of the republic of indonesia no. 18 of 2021 concerning management rights, land rights, apartment units, and land registration). to determine whether a piece of land is ulayat land or not, it must be considered whether there is an alliance of customary law ruling over the land, or people often refer to it as customary law communities, one of which is in minangkabau. a customary law alliance is a group of people who feel as a unified whole, either because of genealogical, territorial and interest factors, have a clear organizational structure, have leadership, have separate assets, both tangible and intangible (abna & solomon, 2007). the indonesian state, which was formed from the unification of customary law communities into customary law areas, as a legal community such as villages on the land of java, including the urutsewu area in fifteen villages from three sub-districts in kebumen regency. so that the entire territory of the state which is now referred to as the right to control the state can be interpreted as state customary rights and all land within the territory of indonesia is referred to as state customary land. the content of the customary rights of customary law communities is identical to the content of the state's right to control as contained in article 2 paragraph (2) of the uupa no. 5 of 1960. the same thing also exists in the urutsewu area of kebumen, where there are certain plots of land with individual rights, which are qualified from yasan rights which are handed over to the village for joint use, which is known in the idiom of the urutsewu community called the land of pangonan, berosengojo which can be brought only the results and has been going on for generations, while the land returns to ulayat land, http://creativecommons.org/licenses/by-nc-sa/4.0/ 336 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia but if the land is abandoned, ulayat rights will return so it does not necessarily become state land. d. abandoned land based on government regulation number 18 of 2021 concerning management rights, land rights, apartment units, and land registration, the meaning of abandoned land is land with rights, land with management rights, or land obtained on the basis of control over land that is intentionally not cultivated, not used. , not used, or not maintained (art. 1 par. 11, government regulation of the republic of indonesia no. 18 of 2021 concerning management rights, land rights, apartment units, and land registration). and if viewed from the description of the origin of state land, the land in the area along the south coast along the 22.5 kilometers in the east is bounded by the wawar river in the mirit subdistrict which borders directly with purworejo regency while in the west it is bounded by the lukulo river in the buluspesantren sub-district, kebumen regency, not included in the abandoned land category. land rights: problems and challenges in indonesia after understanding the various types of land rights opportunities in the coastal area and the subjects of their rights, it is necessary to examine the existing rights in the coastal area of urutsewu, kebumen regency based on the available evidence. land in coastal areas can be in the form of private land (individual), communal land (village), or state land (power), depending on the physical and juridical evidence and the accompanying legal arguments. a. coastal land as property and communal land ownership of coastal land by individuals and villages has been known for a long time in roman law whose principles or principles in it inspire questions of land rights in legal science, there are views of legal experts who are accepted as the principles and teachings of land law, one of which is about littoral rights, which are defined as rights related to property on the part of the coast that is directly adjacent to the ocean, sea, or lake, belongs to the owner whose land is directly adjacent (soesangngobeng, 2012). this sentence shows that not only land that is directly adjacent to the beach can become property rights, but property on a part of the coast can also become property of the owner of the land bordering it. that is, coastal land is not automatically confirmed as state land. government http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 337 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regulation no. 40 of 1996 which completes the determination of the implementation of the right to cultivate, the right to build, and the right to use which is regulated in the uupa no. 5 of 1960 mentions the question of land on or bordering the coast. the coast can be taken as property rights but must be open to the general public of the village community, especially the coast which is usually used for customary interests (harsono, 2007). coastal land can be either gogolan land or communal land. the people who got a share of the communal land were called gogols, or different names in different places. communal land does not mean that this land belongs to the people and the results are worked for the people together. this land is worked by one person, and the result is also for one person, because it is often called communaal individueel bezit (tauchid, 2009). in addition to being managed as agricultural land, the coastal land is usually reserved for livestock raising and salt making. gogolan rights in addition to permanent pekulen or sanggan rights upon the entry into force of uupa no. 5 of 1960 can become property rights in accordance with article vii of the conversion provisions, uupa no. 5 of 1960. people can apply for conversion into property rights. the land belonging to the people during the colonial period was taken for granted for the construction of salt fields and for the benefit of military and civilian buildings, as well as for the construction of fields (van vollenhoven, 2013). b. coastal land as state land coastal areas can also be categorized as state land. not in the sense of state-owned land, considering that philosophically the state does not have ownership rights to land. this is emphasized by uupa no. 5 of 1960 which is anti-domeinverklaring. this national land law replaces the state-domain statement with the principle of the right to control the state. here the state as an organization of power for all the people is given the mandate and authority to administer land in the regulation of agrarian resource relations with individuals or legal entities according to article 2 paragraph (2). rights to this state land may be granted to individuals or collectively and to legal entities, in the form of property rights, cultivation rights, building rights, use rights, lease rights, land clearing rights, rights to collect forest products, and other rights that are not included in the rights mentioned in article 16 paragraph (1). state land itself is defined as land that is fully controlled by the state (government regulation no. 8 of 1953, article 1 paragraph (a)). another definition states that state land is land that is not given with any rights to other parties, or is not attached with a right, namely property rights, cultivation rights, building use rights, use rights, management http://creativecommons.org/licenses/by-nc-sa/4.0/ 338 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia rights, ulayat land and waqf land (sumardjono, 2010). the term state land itself appears in the practice of land administration, where the control is carried out by the land authority, namely the national land agency (harsono, 2007). government agencies claim and control state land without the clarity of granting rights in advance from the state, which in this case is by bpn ri as the mandated authority. government agencies can use it, for example with usufructuary rights granted by the state through bpn ri. then, state land is divided into two types, namely free state land (vrij lands/staatsdomein) and nonfree state land (onvrij lands/staatsdomein). free state lands are lands that are not owned or cultivated by any person or legal entity, as well as lands that are not controlled, occupied and utilized by the people. this land is generally declared as land outside the village area. this land is commonly referred to as gg land. meanwhile, non-free state land is land that has been and is being controlled, occupied, used, and actually utilized by the people (djalins & rachman in van vollenhoven, 2013, p. xv). the people can apply for the land to the state, even though the application for property rights. this is in line with the principle that the authority that comes from the state's right to control is to be used to achieve the greatest prosperity of the people, article 2 paragraph (3) of the uupa no. 5 of 1960. c. coastal land as community property various written documents and historical information submitted orally indicate that the claim to land by the urutsewu community, kebumen regency is quite strong. several periods marked the control and ownership of land in the coastal area of urutsewu, kebumen regency. a) it is called the land reform policy as well as land consolidation. the policy in question is land management with the larak line system. this policy was implemented during the reign of the regent of ambal, r. poerbonegoro (1830-1871). although the year has not yet been determined, this policy was carried out gradually during his leadership era, meaning that it did not happen in one year at a time. in the map of land parcels that exist until now, it is very clear that this larak line system, namely a 2-4 meter wide area extending from the center of the village to the south to the coast. the plots of land are then divided among the community. b) in 1920 there was a policy of merging villages in urutsewu, kebumen regency. a total of 2–4 villages were merged into one. it is possible that this policy was part of the agrarian reorganization policy that ended the traditional apanase-bekel system in the kingdom's territory. urutsewu as part of bagelen is the territory of the kingdom of surakarta. this policy resulted in the abolition of the apanage system, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 339 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the expansion or merger of villages along with land rights called crooked lands, village treasuries, the granting of property rights to the people, setting up a land lease system for both indigenous and european and far eastern groups, as well as reducing mandatory work (setiawati, 2011). this blengketan village still exists today. c) the transformation of the land system that is more modern and organized is increasingly visible in the urutsewu area. after structuring land in the same fields as well as strengthening land rights for individuals and villages, a land measurement policy was born with a land valuation classification known as klangsiran siti in 1932. in addition to measuring, it was also accompanied by mapping and land administration in each village as a result of blengketan, including recording of land owned by individuals, crooked land and village treasury. the community remembered the information provided by the klangsir officer at that time, that the land between the community and the company's land was limited by pal. pal along the coast of urutsewu which is approximately 150-200 meters from the sea, the southern part is called the land of the company while the northern part is called the land of coolies or people. the claim to the south of pal as company land has been rejected by residents in the urutsewu area since a long time ago, one of which was in the village of setrojenar, so they dubbed the marker with the name pal budheg. the community has controlled the land on the shores of the coast to make salt in this region. moreover, there had been a sale and purchase transaction on coastal land at that time, and the proof of land ownership in the form of letter c was known, and klangsiran was carried out every ten years. in 1932, a remeasurement or cycle ii was carried out. the measurement this time was carried out by mantri klangsir, with the involvement of the urutsewu community. measurement is intended to classify land based on its use so that the amount of tax is known from it. klangsiran produces four classes of land values, namely yard land (ati category), paddy field land (meat category), coastal land (balung category), and village boundary land (skin category). thus the categorization of land which is interpreted by the community as a unitary body of the earth. the naming and meaning is a form of proximity to access and interaction on land by the community, both in the form of control and ownership. from here then the land tax is issued. tax collection continued to be carried out using petuk until 1960. in the village of setrojenar, the coastal land here is included in parcel number five. the reorganization of the national land system following the birth of the national land law in the form of uupa no. 5 of 1960 also contributed to changes in land administration in this region. there was a mass certification of people's land at the ministry of agrarian http://creativecommons.org/licenses/by-nc-sa/4.0/ 340 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia affairs/directorate general of agrarian affairs, ministry of home affairs. there is evidence of land certificates and records in the land book in the form of letter c, petuk and currently sppt which are used as proof of tax payments. the document as presented clearly shows that the area of ownership is up to the southern limit of the sea. beaches/coasts are included in the area of property rights. yasan land is privately owned land, which means that the land comes from making itself (yasan) which originated when clearing forests in the past for himself and for his later descendants. since the enactment of uupa no. 5 of 1960, real land has been converted into proprietary land. so it is appropriate if there are many certificates of land ownership in this period. residents of urrtsewu certify their land, the land owned by the farmers at that time in bagelen was commonly called a coolie. coolie in the sense in this area is the meaning in sanskrit, namely farmer. not a coolie in the sense of a laborer, a kolie who was absorbed from the terminology of the history of dutch plantation companies in indonesia. elsewhere, still in the bagelen area, the term coolies as land cultivators is also known. coolies are the same as gogol or sikep as parties who are given power over communal land (shohibuddin & luthfi, 2010). in the experience in urutsewu, communal land is in the form of land intentionally to grow grass/shrub plants for grazing livestock which are used jointly by the community. furthermore, with the existence of uupa no. 5 of 1960, coolies can become land owners. currently, part of the land is intentionally planted with food crops which are owned in the form of property rights. the recognition of yasan land and coolie land (pekulen) shows that in coastal areas the types of owned land and communal land (in village settings) really exist and are recognized by the land management authority, the ministry of agrarian affairs which later became the national land agency, as indicated in the certificate. and land book. d. legal strength of village letter c in indonesian land regulations residents of the urutsewu area began to occupy and work on land which is now a dispute for decades, even before the indonesian army began training in the area. the clearing and cultivation of this land is recognized by the loga. one of the rights recognized in the loga is the right to clear land as referred to in article 16 letter f of the loga. in agrarian law, there are two concepts of land acquisition, namely original land acquisition or original acquisition, for example by opening land, and derivative land acquisition, namely the transfer of juridical rights such as buying and selling and exchanging. land acquisition for residents in urutsewu is categorized as land clearing for the first time. land bordering the coast can become hak milik, meaning that it does not automatically http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 341 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia become state land. ownership of citizen land is proven by evidence of letter c or often called village c. letter c is proof of land ownership at the village or kelurahan office. a copy is given to the landowner. prior to the issuance of the loga, letter c had the same power as a hak milik certificate. after the issuance of the loga, lands bearing letter c can be applied for property rights. to carry out a conversion of land rights from customary land rights to property rights, an evidence is needed where this evidence is referred to as proof of rights, and letter c can be used as one of the evidences of such rights. the letter c can be used as evidence that is owned by a person, when the person wants to obtain rights to his land, and registers the land in his name. it cannot be forgotten that the letter c book is a necessary condition for the conversion of customary land, as evidence of customary property rights. a. the function of the letter c village book a) book letter c as one of the requirements for the conversion of customary land. article 11 uupa no. 5 of 1960 paragraph (1), the rights to land that give authority as referred to in article 20 paragraph (1), as existed at the entry into force of this law, namely agrarische eigendom rights, property , yasan andar beni, rights to druwe / druwe desa, pesini, grant sultan, larderijen bezitreecht, altijddurende erpacht, business rights to former particulate land and other rights under any name which will be further confirmed by the minister of agrarian, since it comes into force this law, becomes the property as referred to in article 20 paragraph (1), unless the owner does not meet the requirements, as stated in article 21. b) from the point of view of evidence, there are two types of former customary lands, namely: 1) ex-customary land which is considered to have written evidence, girik, ketitir, petuk taxes and so on. 2) ex-customary land that has not been or is not equipped with written evidence. from the explanation above, it is very clear that the conversion of customary land requires evidence, one of which is a tax receipt or letter c book. in the case of converting customary land, this letter c is referred to as proof of rights. what is considered as proof of rights according to the regulation of the minister of agriculture and agrarian no. 2/1962 article 3a, for areas where before september 24, 1960 there was already an indonesian agricultural tax or verponding, what is considered as proof of rights are: a) indonesian agricultural or verponding tax letter. girik, pipil, ketitir, petuk and so on are only issued before september 24, 1960. if between september 24, 1960 and the date on which land registration was held according to government regulation no. 10 of 1961 there was a sale and http://creativecommons.org/licenses/by-nc-sa/4.0/ 342 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia purchase, exchange, grant, then the original documents a valid deed of sale and purchase, exchange, grant, which is made before the village head/local custom, or made according to local customary law, must also be attached as proof of rights. b) as one of the conditions for obtaining ownership rights to land, obtaining ownership rights to a plot of land as a result of the distribution of inheritance, buying a plot of land or a grant does not require a long procedure, it can be carried out in advance of a notary/ppat in making a deed. pp no. 24 of 1997, concerning land registration, article 24 paragraph (1), for the purpose of registering rights, land rights originating from the conversion of old rights as evidenced by written evidence, including girik, ketitir, petuk land tax/landrente. conversion of customary rights to land according to uupa no. 5 year 1960 no location species name customary rights category politics of law legal basis 1 outside java hak ulayat (at other names) nagari/village public appreciated equal to the rights of the state (state land) article 3 uu 1960/5 2 minangkabau the customary rights of people/tribes/ marga over rice fields, fields, tree plantations and secondary forests communal private 3 outside java family rights to large fields and secondary forest (former large fields) communal private 4 java & islands2 small surrounding shared rights (authority nganggo run tumurun) over the coast communal private 5 outside java rights to fields cleared from primary forest and worked on a rotational basis private individual threatened with land abandonment charges psl 27 1960/5. act http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 343 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 6 outside java right to land cleared from primary forest and cultivated continuously (permanently) private individual appreciated as equal to property rights psl 22 jo article ii (1) conversion terms 1960/5. act 7 java yasan private individual appreciated as property rights psl 22 jo article ii (1) conversion terms 1960/5 . act 8 java andarbeni, belongs to private individual appreciated as equal to property rights article ii (1) conversion terms 1960/5 . act 9 bali pesini, druwe, village druwe private individual appreciated as equal to property rights article ii (1) conversion terms 1960/5 . act 10 north sumatra grant sultan private individual appreciated as equal to property rights article ii (1) conversion terms 1960/5 . act 11 java anggaduh, crooked, weak, pituwas private individual appreciated equal to the right to use psl vi conversion terms 1960/5 . act 12 minangkabau north sumatra helpfull controller grant private individual appreciated equal to the right to use psl vi conversion terms 1960/5 . act 13 java gogolan, pekulen / permanent support private individual appreciated as property rights article vii (1) conversion terms 1960/5 . act 14 java gogolan, pekulen/nopermanent support private individual appreciated equal to the right to use article vii (2) conversion terms 1960/5 . act conversion of customary rights to land in java according to the agrarian law 1960/5 no location name/type of customary rights category politics of law legal basis 1 java yasan private individual appreciated as property rights psl 22 jo article ii (1) conversion terms 1960/5 . act 2 java andarbeni, private appreciated article ii (1) http://creativecommons.org/licenses/by-nc-sa/4.0/ 344 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia belongs to individual as equal to property rights conversion terms 1960/5 . act 3 java anggaduh, crooked, weak, pituwas private individual appreciated equal to the right to use psl vi conversion terms 1960/5 . act 4 java gogolan, pekulen / permanent support private individual appreciated as property rights article vii (1) conversion terms 1960/5 . act 5 java gogolan, pekulen/nopermanent support private individual appreciated equal to the right to use article vii (2) conversion terms 1960/5 . act 2020 lph yaphi, solo (table of conversion of customary rights in java) the supreme court in its decision stated that the tax letter was not proof of ownership of land rights. the land tax letter is only a notification that the person who pays or pays the tax is the person whose name is listed in the tax letter. the view of the supreme court number ma 34/k.sip/80. not recognized as legal proof of land, land tax documents or letter c, these are only preliminary evidence to obtain legal evidence of land rights, namely certificates, but even so, letter c is still said to be evidence (suparyono, 2008). to obtain land rights, a person must have evidence stating that the land belongs to him. in government regulation no. 24 of 1997, article 24 paragraph (1) states that for the purpose of registering land rights, it is evidenced by evidence, one of which is written evidence. the letter c book is evidence of the acquisition of land rights, namely written evidence, because the letter c book contains matters relating to the land and everything is written clearly. the above opinion does not mean that it is wrong because letter c also has the functions mentioned by the above scholars, but still in its development letter c is still stated as evidence. it is not enough that the bank also has the courage and even the confidence to provide credit to debtors who own land whose proof of ownership is in the form of letter c. b. procedure for acquisition of land rights based on government regulation number 24 of 1997 land registration in indonesia and its problems are now increasingly complex, where the regulations on land in indonesia are not adequate to regulate the problems that arise. for this reason, more adequate legislation is needed. government regulation no. 24 of 1997 came into force on october 8, 1997, thus pp no. 24 of 1997 carried out the instructions from article 19 of the uupa no. 5 of 1960 which reads as follows: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 345 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia a) to ensure legal certainty by the government, land registration is held throughout the territory of the republic of indonesia according to the provisions stipulated in government regulations. b) the registration referred to in paragraph 1 of this article includes: 1) measuring, mapping and clearing land 2) registration of land rights and the transfer of these rights 3) the provision of letters of proof of rights, which serves as a strong means of proof. c) land registration is carried out taking into account the state and community conditions, socio-economic traffic needs and the possibility of its implementation, according to the consideration of the minister of agrarian affairs. d) in a government regulation, the fees related to registration as referred to in paragraph (1) above are regulated, provided that people who cannot afford are exempted from these fees. what has been ordered by paragraph (1) of article 19, the government has issued pp 10 of 1961. government regulation number 24 of 1997 is indeed expected to provide a clear direction on land registration compared to government regulation no. 10 of 1961, especially regarding land registration. in pp no. 24 of 1997 it is explained about things as objects of conversion or evidence that can be forwarded to be used as certificates. regarding the need for pp no. 24 of 1997 to be promulgated as a refinement of pp no. 10 of 1961 because it is considered not enough to provide satisfactory results (harsono, 2002). d. status of land rights in the urutsewu area, kebumen regency the conflict that occurs in the urutsewu area is a social conflict which is a vertical conflict that occurs between the community and the indonesian army (tni ad) in terms of fighting over land. in addition to the conflict with the tni ad, there was also a conflict triggered by the mining of iron sand in the mirit district area with a company granted a mining permit by the government. a. legal status of land in urutsewu on the land, community ownership rights have been placed in the form of village letter c long before the establishment of the unitary state of the republic of indonesia and in its development the local community has increased the basis for land rights in the form of certificates issued by the national land agency (bpn). the acknowledgment of the letter c of the village by the government of the republic of indonesia on the land claimed by the tni-ad has been proven by the issuance of several certificates. recognition of letter c of the village as an initial indication of ownership of land rights. for the purpose of registration of rights, land rights originating http://creativecommons.org/licenses/by-nc-sa/4.0/ 346 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia from the conversion of old rights as evidenced by written evidence, including girik, ketitir, petuk land tax/landrente. the acknowledgment of the letter c of the village by the government of the republic of indonesia on the land claimed by the tniad has been proven by the issuance of several certificates. recognition of letter c of the village as an initial indication of ownership of land rights. for the purpose of registration of rights, land rights originating from the conversion of old rights as evidenced by written evidence, including girik, ketitir, petuk land tax/landrente. the acknowledgment of the letter c of the village by the government of the republic of indonesia on the land claimed by the tni-ad has been proven by the issuance of several certificates. recognition of letter c of the village as an initial indication of ownership of land rights. for the purpose of registration of rights, land rights originating from the conversion of old rights as evidenced by written evidence, including girik, ketitir, petuk land tax/landrente. b. different understanding of the status of the land in the urutsewu area the provincial government of central java and the local government of kebumen regency in accordance with their functions are not institutions that are given the authority to judge and decide who owns the land in the urutsewu area, kebumen regency. because the state has provided a forum for a person or legal entity who fights for their ownership rights or argues that they have the right to something to file legal remedies, according to the constitution, the republic of indonesia is a state based on law and upholds human rights. it should be noted that the village government is only the administrative executor of the customary community unit in the village and is not the party that has the right to decide on a person's civil property rights. the tni-ad as an institution or institution, can only be granted usufructuary rights if the land is used for the benefit of the tni-ad, for example for offices, dormitories, schools, commanders' official houses, airfields, shooting ranges, and so on. it should also be noted that land that can be placed with usufructuary rights on it based on article 41 of the basic agrarian law is only limited to state land, land with management rights, and land with property rights. regarding the occurrence of use rights on state land and land with management rights, the conditions as stipulated in articles 42–43 of the basic agrarian law apply: 1. the right to use state land is granted by a decision on granting rights by the minister or appointed official. 2. use rights over management rights are granted with a decision on granting rights by the minister or appointed official based on the proposal of the management right holder. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 347 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. the right of use must be registered in the land book at the land office. 4. right to use state land and land management rights occur since they are registered by the land office in the land book in accordance with the provisions of the applicable laws and regulations. 5. as proof of rights to the holder of the usufructuary rights, a certificate of land rights is given. in fact, through the results of a joint study between the people of the village of setrojenar, buluspesantren sub-district, kebumen regency, lbh semarang, and the national land agency of central java province on april 29, 2011, the central java provincial bpn stated that: a) the tni-ad claims to have used the area as a military area with proof of land borrowing. so it can be said that the tni-ad does not yet have land rights. b) the basis for claiming the tni-ad military area above the urutsewu area, the southern coast of kebumen regency is only proof of land borrowing. based on the explanation above, it is clear and clear that the urutsewu community is the rightful owner of the land in the urutsewu area, the southern coast of kebumen regency. for this reason, the tni-ad's claim to property rights in the area must be said to be unfounded and has no legal force. thus the struggle of the urutsewu community in general to make the urutsewu area an agricultural and tourism area is legitimate both from the sociological, juridical and economic aspects in accordance with the ideals of the state for the welfare of the people. conclusion the state through its arm, namely the government must not ignore land rights that have been controlled and owned by the community for generations with various proofs of ownership. land control and management with various economic activities (agricultural investment) in its development on the other hand the state institution (tni-ad) under the pretext of the interest of the state trying to control and own lands that have been controlled/owned/managed for generations by the coastal community of urutsewu, kebumen regency . ownership claims in its development led to conflicts in the land sector known as the agararia conflict between the urutsewu community, kebumen regency and the tni-ad. this research concluded that based on article 24 paragraph (1) letter k, and elucidation, government regulation no. 24 of 1997; decision of the supreme court of the republic of indonesia. no. 34/k.sip/1960, dated february 19, 1960, although neither the land tax certificate nor the letter c document are absolute evidence, they become juridical data for submitting the conversion of property rights. the coastal land in the urutsewu area of kebumen http://creativecommons.org/licenses/by-nc-sa/4.0/ 348 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regency has been controlled, managed and owned for generations by the community along with the formation of indigenous peoples, long before the republic of indonesia was established which later served as the basis for controlling ownership of land parcels known as pethuk, girik, ketitir and others. which in its development is administered in the village c book/letter c. the mention of the lands in the urutsewu area is known as yasan land. based on the ownership of the land rights of the urutsewu community, based on real land claims, land clearing and then being worked on for generations by residents, especially farmers. for the control of arable land for residential and agricultural land, tax evidence is issued, and it is recognized in the land registration in the village, which is called letter c. the ownership and evidence is accompanied by statements from historical witnesses from the villagers, the village administration, as well as from the district government. residents have the right to convert their land rights into hak milik, because before the issuance of the basic agrarian law (uupa) number 5 of 1960, letter c as evidence has the same power as the certificate of ownership. the tni-ad claimed the land in the urutsewu area, kebumen regency based on a certificate, a map made by the tni-ad, which legally does not have the power of proof. repressive measures against landowners on the pretext that the land in the urutsewu area is state land and will be used for the interests of hankam without showing the basis of what rights are placed on the claimed plot of land is a form of arbitrariness of the state institution against its people. meanwhile, the ministry of land and national security cq tni ad, claims the status of land rights with the allotment for the use of shooting training grounds. the claim is based on letters issued by the tni ad itself. the claim incident began during the new order era, namely in 1982, the tni ad borrowed a place during training, in addition to training, the tni also conducted heavy weapons tests. also in 1982, the dislitbang tni ad was built in the village of setrojenar, buluspesantren district. meanwhile, the people who have controlled and managed it from generation to generation based on evidence that has been administered in the village government and some have been officially certified by the national land agency, continue to strive to maintain the urutsewu area as an agricultural and tourism area, it is necessary to get support from all parties. so far, the community has sought settlements through the district, provincial, and central governments, as well as through the land offices in the regions and the central bpn. however, over the years, the community's efforts have not obtained a clear settlement of the land rights seized by the tni ad. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 349 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia suggestion seeing that efforts to confiscate people's lands occurred in a violent process, which took place continuously, accompanied by destruction and intimidation, even the loss of so many human rights, and the violations that occurred in the urutsewu case took place in a systematic, widespread and planned manner with the involvement of state institutions. .agrarian conflicts that cause harm to the community, a breakthrough is needed from policy makers in the republic of indonesia, in this case the president and the indonesian house of representatives to form a team to restart the process of resolving agrarian conflicts with the following steps: 1. from the evidence held by the local community, the state is obliged to protect the property rights to the land of all its citizens, and government institutions must return and acknowledge that the lands in the urutsewu area, kebumen regency, are owned by the residents. 2. deciding on the claims of state institutions on land rights in the urutsewu area, as an effort to resolve the agrarian conflict so that it doesn't last long and the urutsewu area of kebumen regency is used by local farmers to create their welfare by utilizing these lands. 3. the ptsl policy as well as within the agrarian reform framework is sought immediately to ensure the legal status of control and ownership of land rights that have been managed for generations with juridical evidence that has been kept and is in local government registrations. 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(2016). the role of kyai in contentious politics concerning land dispute in urutsewu kebumen. qijis (qudus international journal of islamic studies), 2(1), 63-81. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://kbbi.co.id/arti-kata/pesisir journal of law & legal reform volume 2(3) 2021 351 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia van vollenhoven, c. (2013). orang indonesia dan tanahnya. yogyarakrta: stpn, sajogyo institute, huma, dan tanah air beta widayati, a. (2019). reaktualisasi perjuangan nahdlatul ulama dalam mewujudkan kedaulatan sumber daya agraria (studi gerakan demokrasi radikal pada fnksda). bhumi: jurnal agraria dan pertanahan, 5(1), 84-98. http://creativecommons.org/licenses/by-nc-sa/4.0/ 352 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia i will not resolve a land dispute if civil groups or politicians are involved in the land disputes. hun sen http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23ce68b2a637 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 1(3) 2020 457 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article the role of the nusantara task force in preventing political vulnerability in the pati police jurisdiction arindra wigrha pratama central java regional police department, indonesia  arindra.pratama@gmail.con cited as pratama, a.w. (2020). the role of the nusantara task force in preventing political vulnerability in the pati police jurisdiction. journal of law and legal reform, 1(3), 457478. doi: https://doi.org/10.15294/jllr.v1i3.36702 abstract political insecurity ahead of the 2019 presidential and vice-presidential election candidates often arises in the pati police jurisdiction. the establishment of this task force aims to minimize the occurrence of various political vulnerabilities ahead of the presidential and vice=presidential elections so as not to develop into social conflict. the purpose of this study is to analyze the problems of political vulnerability that existed during the 2019 presidential election in the pati police jurisdiction, describe and explain the role of the nusantara task force in preventing the occurrence of problems of political vulnerability that existed during the 2019 presidential election in the pati police area, and analyze the factors influencing the implementation of the task force of the archipelago in preventing the occurrence of problems of political insecurity that existed during the 2019 presidential election in the pati police jurisdiction. theories used in this research are the role theory and voter behavior theory. the concept used is the nusantara task force concept. the laws and regulations in this study are law no. 2 of 2002 concerning the national police and the law. no. 7 of 2017 concerning general elections, as well as national police chief sprin no. sprin / 40 / i / 2018 date january 8, 2018 about the establishment of the task force nusantara. keywords: nusantara task force; prevention; political vulnerability; 2019 presidential election journal of law and legal reform (2020), 1(3), pp. 457-478. doi: https://doi.org/10.15294/jllr.v1i3.36702. issn (print) 2715-0941, issn (online) 2715-0968 submitted: 24 november 2019, revised: 20 february 2020, accepted: 15 march 2020 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v1i3.36702 https://doi.org/10.15294/jllr.v1i3.36702 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 458 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table of contents abstract …………………………………………………………………………. 457 table of contents ………………………………………………………….. 458 introduction …………………………………………………………………. 458 method …………………………………………………………………………… 460 conceptual theory ……………………………………………………...… 462 i. role theory ………………………………………………....……………. 462 ii. voter behavior theory …………………………..………………….. 462 iii. type of voters ……………………………………………………………. 464 iv. the concept of the nusantara task force ………………... 466 general description of political vulnerability in the selection of the 2019 president in the pati police ...………... 466 analysis of the role of the satgas nusantara in prevention of political vulnerability in the election of the 2019 president in the pati region ...……………………….. 471 factors affecting the implementation of the role of the satgas nusantara in prevention of political vulnerability in the election of the 2019 president in the pati police region ……………………………………………………. 473 i. internal factors ………………………………………………………. 473 ii. external factors ……………………………………………………… 474 conclusion …………………………………………………………………….. 475 suggestion ……………………………………………………………………... 476 references ……………………………………………………………………... 477 introduction the implementation of general elections (hereinafter referred as elections), both legislative elections, presidential elections or regional head elections are always colored by various political vulnerabilities. this happened because each contestant tried to win the attention of the public so that he was elected in the election period. this political vulnerability varies, ranging from negative campaign actions aimed at bringing down the opposing party, black campaigns, hate speeches, hoax information dissemination and various potential occurrence of kamtibmas disruption caused by the ideological conditions of the community. moreover, in this region many members of hti even though currently passive, the existence of one of the bases of the former g 30 /pki which is currently ex g 30s/pki is active in the ypkp (victim of murder victims research foundation) 65. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 459 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this problem has always been a figure that worrying and frightening because this can have potential as something that does not support the implementation of the democratic party in indonesia. this concern was strongly felt by the pati regency government which found various problems in the implementation of a democratic party in the pati region, one of which was the finding of many people who preferred not to exercise their relatively large voting rights, which is more than 25% of the total public voters in pilkada in pati regency. this can occur because of the various perceptions that can shake his imagination in organizing a democratic party in the pati region, as a result he has a doubtful attitude or feels psychological terror that resulted in him reluctant to engage more deeply in the political problem, this is also supported by the assumption of the findings of the number of people who prefer not to use their voting rights which present the number of people who do not support the pati regency government in the future, this is considered to worry the pati regency government and be a disruptive factor in the administration of pati regency policy in the future. based on the study of documents from the data collected in pati regency kpu, related to the implementation of the election of regional heads and deputy regional heads (pilkada) of pati regency, it was found the list of permanent voters in pati regency was 697,437 people. the results of other studies found that people who used their voting rights were 519,675 people or 74.512% and those who did not exercise their voting rights were 177,762 people or 25.487%. the existence of the people who do not exercise their right to vote is also considered to be able to eliminate the legitimacy of the leadership of the pati regency government which subsequently is able to lead to conditions that are not conducive to other political insecurities in the efforts of pati regency development as well as other implementation of government activities. this happens because the political participation of the people related to the implementation of the elections is a very important form of democracy and can influence the formulation, making and decision making, as well as the implementation of the pati regency government policy in the future. the emergence of the above problems can further influence the socio-economic conditions of the community, the psychological condition of the community, the kamtibmas condition to the political conditions in the pati police precinct. these problems can have a negative impact on society during the reign of the elected regional head. these assumptions arise based on the potential for disruption in the administration of government bureaucracy which has attention in this direction will be divided, so that the focus of the government is not only in the implementation of http://creativecommons.org/licenses/by-nc-sa/4.0/ 460 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the government bureaucracy but also focuses on solving various problems that arise in the implementation of the bureaucratic process, especially when in the administration democratic party in the region. to overcome kamtibmas's disturbances both as a psychological terror in the community and tangible disturbances, pati pati police has carried out various preemptive, preventive and repressive strategies so that people in the pati police jurisdiction feel peace, security and public order. one form of preemtive strategy in the policy of overcoming the problem of social and political vulnerability. pati police through the formation of the nusantara task force have made efforts to provide guidance and counseling to the citizens of pati regency so that they remain calm in the face of the current situation. the other functions of the nusantara task force in supporting pilkada in pati regency are also being prepared to be aware of various threats to kamtibmas disruption during the campaign period and during the pati regency regional election, as well as to anticipate various kamtibmas disruptions that exist in the administration of pati regency election by taking preventive, preemptive and repressive actions . however, the results of the formation of the nusantara task force were not fully optimal in suppressing the presence of abstentions in this region, which could be due to the inability of the nusantara task force to influence the community so that they were actively involved in organizing the democratic party. seeing these problems, the pati district police must further enhance the role of the nusantara task force so that in the implementation of the elections it is free from various socio-political insecurity issues, so that the nusantara task force can prevent and avoid various problems both sectoral egos of one group or other kamtibmas disruption aimed at disrupting democratic process held in this region. the increase in the role of the nusantara task force in preventing various socio-political tensions during the regional election is also expected to prevent black campaigns and money politics, avoid conflict and political violence, prevent the domination of the elites playing in the elections, and prevent, overcome and stop political mobilization, so that the nusantara task force can restore people's position as a central figure in creating popular sovereignty. method the research literature used as a reference in conducting this research includes, first, rian sacipto, 2018. the existence of the national police in law enforcement of http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 461 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia election crimes welcoming the indonesian democracy party 2019. national seminar on law at semarang state university volume 4 number 2 of 2018, 366-385. this research is motivated by the problem of the large number of violations in the holding of elections and various crime problems committed by supporters and from political parties, both directly and indirectly to political contestants. the purpose of this study is to explain the role of the national police in creating quality elections. the research method was carried out through a field research method with a qualitative approach. the results of this research include the efforts of the national police in creating quality, honest and fair elections carried out in collaboration with the prosecutors' office, kpu and bawaslu in analyzing, filtering and categorizing an act of criminal violation or election administration. second, binov handitya. 2018. the role of the integrated law enforcement center (gakkumdu) in enforcing election crime. national seminar of law semarang state university volume 4 number 2 of 2018, 348-365 research conducted by binov (2018) is motivated by the problem of the rise of money politics practices in each election period, the cause is none other than the lack of public awareness of elections that can make a vehicle for the enforcement of people's sovereignty. the purpose of this study is to explain the role of the gakkumdu center in the enforcement of election crime. this research was conducted with a qualitative approach and using field research methods. the results of this study, among others, explained the legal basis in carrying out the role of the gakkumdu center as in article 486 paragraph (1) of law no. 7 of 2017 concerning general elections, which explicitly explains that the gakkumdu center was formed to equalize the role in the act of election criminal acts from several elements such as the national police, the attorney general's office, kpu and bawaslu which all of these functions have the same vision and mission namely suppressing the occurrence of election criminal acts in the upcoming 2019 presidential election. based on the background explanation above, the formulation of the problem in this study is how is the role of the nusantara task force in preventing political insecurity in the pati police jurisdiction? based on the formulation of the problem, the main issues in this study include: 1. problems of political insecurity that existed during the 2019 presidential election in the pati police jurisdiction. http://creativecommons.org/licenses/by-nc-sa/4.0/ 462 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. the role of the nusantara task force in preventing the occurrence of problems of political insecurity that existed during the 2019 presidential election in the pati police jurisdiction. 3. factors influencing the implementation of the task force of the archipelago in preventing the occurrence of problems of political insecurity that existed during the 2019 presidential election in the pati police jurisdiction. conceptual theory the conceptual literature that will be used in this study consists of several theories and concepts as follows: i. role theory the role (role) is a dynamic process of status (status). if a person exercises his rights and obligations according to his position, he carries out a role. the difference between position and role is in the interest of science. both cannot be separated because one depends on the other and vice versa (soekanto, 2009: 212). ii. voter behavior theory voters who became king in the implementation of the democratic party became the main goal of the contestants to support and vote for the contestants. a person who is declared as a voter in an election is a person who has been registered as a voter participant by an official registering voters. when viewed from political and ideological institutions, the voters can be in the form of constituents and society in general. the voters referred to in the constituency are a group of people who feel represented by certain ideologies that are manifested in political institutions such as political parties and a leader (kpu ponorogo, no year: 48). according to surbakti (1997 in kpu ponorogo, no year: 48), voter behavior is the activity of voting by individuals who are closely related to the decision-making activities to vote or not to vote (to vote or not to vote) in an election. based on this explanation, it is understood that the behavior of voters can vote and determine who will be elected as the regional head and deputy regional head in a direct election, which is shown by the behavior of the community in electing candidates for regional head and deputy regional head candidates. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 463 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the decision to provide support and votes will not occur if there is not a high enough voter loyalty to the prospective leader. vice versa, voters will not vote if they think that a party or prospective leader is not loyal and is not consistent with the promises and expectations they have given. voter behavior is also laden with ideology between voters and political parties or election contestants. each contestant carries an ideology that interacts with each other. during the election campaign period, crystallization and grouping emerged between the ideologies brought by the contestants. the public will classify themselves to contestants who have the same ideology taken with those they profess while also distancing themselves from ideologies that are opposite them (kpu ponorogo, without years: 48). voter behavior can also be analyzed with three approaches, namely: 1. sociological approach this approach is used to explain the voting behavior of the british people, who refer to the sociological approach as a social determinism approach. this approach basically explains that social characteristics and social groupings have a significant influence in determining the behavior of a voter. social characteristics (such as work, education, etc.) and sociological characteristics or background (such as religion, region, gender, age, etc.) are important factors in determining political choices (andrew a. abeyta, 2019). in short, social groupings such as age (young and old); gender (male); religion and the like are considered to have a quite decisive role in forming formal social groupings such as one's membership in religious organizations, professional organizations: as well as informal groupings such as family, friendship or other small groups, which is something very vital in understanding one's political behavior, because these groups have a major role in shaping one's attitudes, perceptions and orientation (kpu ponorogo, no year: 52). 2. psychological approach psychological approach is a phenomenon that was fully developed by the people of the united states through the survey research center at the university of michigan. therefore, this approach is also referred to as the michigan school. the main pioneer of this approach is angust campbell. this approach uses and develops psychological concepts, especially the concept of socialization and attitudes to explain voter behavior. socialization variables and attitudes cannot be related to voting behavior if there is a socialization process. therefore, according to this http://creativecommons.org/licenses/by-nc-sa/4.0/ 464 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia approach it is actually socialization that determines a person's (political) voting behavior. adherents of this approach explain a person's attitude as a reflection of one's personality is a quite decisive variable in influencing one's political behavior. therefore, the psychological approach emphasizes on three psychological aspects as the main study, namely emotional ties in a political party, orientation to issues and orientation to candidates (kpu ponorogo, no year: 54). 3. rational approach the use of a rational approach in explaining voter behavior by political scientists is actually adapted from economics. they see an analogy between the market (economy) and voting behavior (politics). if economically the community can act rationally, that is, to reduce costs as little as possible to obtain the maximum profit, then even in political behavior the community will be able to act rationally, namely to vote for the opp which is considered to bring the maximum profit and reduce losses (kpu ponorogo, no year: 55). voter orientation can also be divided into two, namely: a. policy-problem solving orientation when voters judge a contestant from the lens of "policy-problem-solving" the most important thing for them is the extent to which contestants are able to offer work programs or solutions to an existing problem. voters will tend to objectively vote for political parties or contestants who have sensitivity to national (regional) problems and clarity of political party work programs or election contestants whose unclear policy direction will tend to be unselected (kpu ponorogo, no year: 56). b. orientation of ideology voters who tend to prioritize the ideology of a party or contestant, will prioritize the bonding "ideology" of a party or contestant, will emphasize aspects of subjectivity such as the closeness of values, culture, norms, emotions and psychographics. the closer the similarity of parties or election contestants, this type of voters will tend to vote to the party or contestant (kpu ponorogo, without year: 57). iii. type of voters 1. rational voter http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 465 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the ability of these so-called high voters has a high orientation towards policyproblem-solving and is low oriented towards ideological factors. voters in this case prioritize the ability of political parties or candidates participating in the election with their work program, they see the work program through the performance of parties or contestants in the past, and the program offer offered by the candidate or political party in solving various problems that are happening. this type of voter has a characteristic that is not so concerned with ideology ties to a political party or a contestant. the most important thing for this type of voter is what can (and has) been done by a party or an election contestant (kpu ponorogo, no year: 58). 2. critical voter the process to become a type of voter can occur through 2 things: a. this type of voter makes the ideological value as a foothold to determine which party or contestant the election will side with and then they will criticize the policy that will or has been done. b. it could also be the other way around where voters are interested first in the work program offered by a party / contestant and then try to understand the values and understandings behind the making of a policy. this type of voters are critical voters, meaning they will always analyze the links between the ideological party system and the policies made (kpu ponorogo, no year: 59). 3. traditional voter this type of voter has a very high ideological orientation and does not really see the policy of a political party or a contestant as something important in decision making. traditional voters prioritize the socio-cultural closeness, values, origins, understanding and religion as a measure to choose a political party or contestant election. policies such as those related to economic issues, welfare, education, etc., are considered as second priority. voters of this type are very easy to mobilize during the campaign period, voters of this type have a very high loyalty. they consider what is said by an election contestant or political party which is a truth that can not be negotiable (kpu ponorogo, without years: 60). 4. skepsis voter this type of voter does not have a high enough ideological orientation with a political party or election contestant, nor does this voter make a policy an important matter. even if they participate in elections, they usually do it randomly. they believe http://creativecommons.org/licenses/by-nc-sa/4.0/ 466 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that whoever wins in the election, the results are the same, there are no significant changes that can be divided for regional / state conditions (kpu ponorogo, no year: 61). iv. the concept of the nusantara task force the nusantara task force is a task force formed by the national police chief in accordance with the national police chief order no: sprin / 40 / i / 2018 regarding the formation of the national satgas in charge of minimizing the occurrence of provocative issues related to primordialism (sara) issues so as not to develop into social conflicts in the implementation of simultaneous local elections in in order to maintain the unity and integrity of the nation through two approaches, namely the soft approach (through the implementation of intelligence, community service and public relations tasks) and the hard approach (through proportional and professional law enforcement) in order to maintain the unity and integrity of the indonesian nation, with the aim of carrying out its tasks aimed at an activity, person / group, and certain place / location. the formation of the nusantara task force is one of the implementations of the leadership's policy in anticipating vulnerabilities that occurred during the elections, which are based on law no. 2 of 2002 concerning the indonesian national police, and several other laws and regulations (polri, 2018: 3) general description of political vulnerability in the selection of the 2019 president in the pati police pati regency has held the general election of dprd members (pileg) directly four times, namely in 1999, 2004, 2009 and 2014. the 1999 legislative election was a direct legislative conducted by pati regency. the 1999 legislative election was attended by 48 parties. the 1999 legislative election was won by pdip with an absolute victory for all districts in pati regency with 326,580 votes and 21 seats. the party with the most votes gained was the pkb with 133,006 votes and won 9 seats. the implementation of the second pileg pati in 2004 was attended by 24 parties. this 2004 legislative election produced 9 parties that won seats in the dprd. the 2004 dprd member election was again won by the pdip which again won an absolute election in all districts with a total vote of 214,996 and won 16 seats. the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 467 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia second party that gained the most votes was pkb with 123,395 and managed to get 9 seats. pati's third pileg was held in 2009, which was participated by 44 political parties. the 2009 legislative election was won again by the pdip with 141,547 votes won absolutely in all districts, so that pdip won 12 seats in the pati regency dprd. then followed by the democratic party with 95,590 votes and managed to get 8 seats. 2014 legislative election was the fourth legislative election for pati regency, which was participated by 12 parties. based on the vote acquisition data, pdip returned to the party that gained the most votes in the 2014 legislative election. however, in the 2014 legislative election, pdip did not win absolutely for all districts. pdip competes fiercely with the gerindra party. so that the acquisition of the final results for the pdip and gerindra party is not far adrift, namely 117,664 and 112,599 by getting the same number of seats in the dprd which is as many as 8 seats. based on the above legislative election data, it can be concluded that pdip is the party that won the majority of votes in pati regency, as evidenced by the implementation of four legislative elections, pdip always gained the most votes, even three times the legislative elections namely 1999, 2004 and 2009 pdip won absolutely in all districts. the political parties participating in the legislative election were able to carry their cadres. this shows that the political parties are competitive. the political parties also showed that they had carried out the function of political recruitment well and prepared their cadres who had the competence to compete with cadres from other political parties. in addition to holding the legislative election, pati regency has also held regional elections and deputy regional heads four times, namely in 2006, 2011, 2012 and 2017 re-election which was the first direct pemilukada in pati regency, as well as the regional elections that made pati regency a public spotlight at the national level. that is because the participation rate of pati regency voters is only 44.3 percent. based on data obtained by kompas research and development, voter turnout in the 2006 general election was 51.8 percent. looking at these data, the participation rate of pati regency, which ranges between 44 percent, makes pati regency the title of the region with the lowest political participation in central java. this causes disruption to the government bureaucracy because the results of the post-conflict local election do not represent all the aspirations of the people of pati regency. in addition, the 2006 post-conflict local election also led to demonstrations from pati district residents who are members of a group calling themselves the concerned pilkada concerned communities (gampil), with at least 5,000 members. the http://creativecommons.org/licenses/by-nc-sa/4.0/ 468 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia demonstration was carried out because all pairs of candidates for regent proposed were claimed by the masses to be involved in legal issues. the 2006 post-conflict local election was attended by four candidate pairs, namely tasiman-kartina sukowati, kotot kusmanto-arsyad, sudjoko-sunandar and slamet warsito-anik syahuri. the pati regency kpu and central java kpu claimed that they were not authorized to cancel the post-conflict local election. the authorized party to postpone or cancel the post-conflict local election implementation process is with the minister of the interior by considering the input of the central kpu. cancellation of postconflict local elections can be done if special things happen such as natural disasters, while the legal case against all pairs of candidates for regent and deputy regent of pati regency is only based on the allegations of the community. the 2006 post-conflict local election was won by the pair tasiman-kartina sukowati with a total vote of 195,599 or 46.44 percent. the tasiman-kartina sukowati couple who are promoted by the democratic party and pdip get the highest votes in each district except kayen district. the current condition of politics in the pati police jurisdiction can also be explained by the holding of the 2019 presidential election. facing the upcoming elections on april 17, 2019, various potential kamtibmas disruptions exist in the pati police jurisdiction. some potential kamtibmas disruptions that were successfully identified in the holding of the general election, especially the 2019 presidential election by icw, which explained some potential kamtibmas disruptions that are almost in all regions of indonesia originated from these problems: 1. the case of candidate buying or nominating buying and selling practices that occur between elected candidates and political parties 2. the existence of dynastic political problems that occur in certain areas 3. presence of names of problematic candidates such as ex-convicts or suspected corruption 4. the existence of a single candidate in several areas 5. the emergence of campaign problems that have relatively high costs due to an increase in the contribution of campaign funds, and the effect of granting permits to selected candidates to provide goods with a maximum price of rp 25,000.00 to the dpt (permanent voter list). 6. problems with buying and selling business licenses, buying and selling positions and bribery practices for government projects, 7. there are problems with the politicization of government programs such as grants, social assistance, village assistance, and other prone to providing budget assistance for political party campaigns. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 469 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 8. bureaucracy politicization of state officials such as bureaucrats, asn, teachers to polri / tni institutions 9. the existence of political vulnerability that is applied in buying and selling votes 10. there are problems with manipulation of source reports and use of campaign funds 11. the existence of bribery practices to the election organizers 12. there are cases of corruption for the collection of campaign capital obtained through the sale and purchase of business licenses, buying and selling of office permits to the issue of corruption in the use of certain development budgets. (results of document studies in the 2018 icw report, february 28, 2019) based on the observations of researchers, it is known that the potential for successfully identified conflicts that exist in almost every region, especially in the pati police jurisdiction, during the 2019 presidential election, it is known that the potential for conflict comes from various problems as follows: 1. the existence of conflict triggering factors originating from defense candidates, which can be done through abuse of office through the practice of bureaucratic politicization. 2. the emergence of conflict caused by the potential for politicization of the bureaucracy, by involving asn, polri and the tni in the general election. 3. the emergence of conflict caused by the practice of money politics 4. the emergence of conflict caused by an error in the implementation of data recapitulation 5. the emergence of conflict caused by the presence of kpud alignments at the district level and the attitude of the election supervisory body that is not fair 6. the emergence of conflicts caused by violations of election criminal offenses, such as the issue of sara, hoax, black campaign, hate speech, etc. other potential kamtibmas disturbances in the pati police jurisdiction, which were discovered by researchers from the results of the document study in the general election hazard index report established by the election supervisory body in 2019. problems with changes in the permanent voters' list, violations in the implementation of the campaign, potential disruption of logistical distribution problems (sending selected ballots), potential errors in the voting process and counting errors related to the results of vote counting, as well as dispute problems in the voter list updating stage still based on the aspects of suffrage and the number of voter participation, where based on further search results, this pati district has a conflict vulnerability level of 39.29% which is in the medium category. http://creativecommons.org/licenses/by-nc-sa/4.0/ 470 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia based on the results of a document study on the basic intelligence pati pati in 2018, it is known that the potential disruption of kamtibmas in the pati police jurisdiction which can also turn into political vulnerability can be identified by: 1. the existence of study groups suspected of being sympathizers or supporting acts of terrorism aimed at establishing an indonesian state based on islamic law / caliphate. these study groups will likely continue to grow, they will form new networks by carrying out activities that can recruit the general public. 2. the existence of ex. g 30s / pki through the ypkp (victim of murder victims research foundation) 65 including in the jurisdiction of pati police, who want to fight for their rights back through legal efforts to rehabilitate their good name. this is a latent danger of communism which is feared that communist teachings could develop again in the territory of the republic of indonesia. 3. the prediction of someone who is a former hti (hizb ut-tahrir indonesia) community organization, who has a different ideology and is in conflict with pancasila and the 1945 constitution, namely those who will form a state based on the caliphate. even though the government has officially dissolved it, it does not rule out that they will metamorphose to form a new organization considering that the hti mass organization has management and membership in the pati police precinct. 4. the existence of certain parties is possible to take advantage of issues of religious intolerance for the interests of the pilkada or the election as happened in the dki jakarta pilgub in 2017 so that it has the potential to cause disruption of kamtibmas which will affect the national kamtibmas situation. 5. an increase in political party funds from rp. 108, to rp. 1.000, / valid votes received by the party in the last election aimed at improving political education and accommodating the aspirations of the people. the increase in data is prone to fraud by certain elements. 6. the existence of substantial village fund assistance sourced from the apbn regulated and managed by the village aims at village development with a priority to improve the welfare of rural communities and the quality of human life and poverty reduction. however, the community does not yet have the skills in managing these funds so that this is prone to criminal acts of corruption / misuse of village funds committed by related parties. the observations show that the implementation of the 2019 presidential election in the pati police jurisdiction was colored with the vulnerability of kamtibmas disturbance which could also be a political vulnerability which among others also stemmed from competition between each of the supporters of the presidential http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 471 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia candidate. this social insecurity can emerge as a political insecurity because of the various actions of these sympathizers. one example of the sympathetic competition over the support teams is the result of competition which then results in election violations and political insecurity that manifests in various issues such as the issue of suffrage, violations in the campaign, problems in the implementation of the ballot, many adjudication actions that occur stated objections related to the results of votes in the general election, and other problems. analysis of the role of the satgas nusantara in prevention of political vulnerability in the election of the 2019 president in the pati region based on the observations of researchers, the high potential for political vulnerability that occurred in the pati police area before the 2019 election period can be prevented if the community also has an understanding of the content of political education, so that every individual community will be free from exploitation resulting from the existence of political vulnerability. however, it feels very difficult to do due to the lack of public understanding of the meaning of the election, thus the community only believes that the election is identical to the problems of negative campaigns, hoaxes, hate speeches and even money politics. to overcome these potential kamtibmas disturbances, according to the results of interviews conducted with pati pati wakasgas archipelago pati, explained that so far pati police have made various efforts to prevent the occurrence of political insecurity because of their knowledge of political insecurity as well as the occurrence of hate speeches on social media or even developing ones in the community it is very difficult to be revealed which could be due to the condition of the community covering up the problem. based on further explanations, it is also known that to prevent the occurrence of political vulnerability in the jurisdiction of pati formed the task force of the archipelago which is intended to keep pati in the legal area of pati remain safe from various potential political vulnerabilities during the election. based on the results of the study of documents, it is known that the basis of the implementation of the task force of the nusantara task force is law number 2 of 2002 concerning the indonesian national police, law number 10 of 2016 concerning http://creativecommons.org/licenses/by-nc-sa/4.0/ 472 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the second amendment to law number 1 concerning election of governors, regents and mayor becomes law, law number 19 year 2016 regarding amendments to law number 11 year 2008 regarding information and electronic transactions, law number 40 year 2008 regarding the elimination of discrimination, race and ethnicity, work plan of the police chief in 2018 , kuhp, kirka intelligence, and sprin kapolri no .: sprin / 40 / i / 2018 dated january 8, 2018 concerning the establishment of the nusantara task force. the implementation of these tasks is in accordance with the roles as explained in the theory of roles that can carry out their rights and obligations in accordance with their position in the community as mandated by the state to him (soekanto, 2009: 212). in carrying out the role of the task force of the archipelago, he carried out this task in accordance with the functions of the national police whose task was to maintain public order and security in order to maintain a safe, secure and peaceful social structure in the face of the 2019 elections. in accordance with the theory of that role, the role of the task force in the effort to prevent political vulnerability in the pati police jurisdiction carries out various activities as follows: 1. conduct early detection activities 2. identifying the problem 3. mapping the problem 4. carrying out action to mobilize community guards or experts who cause kamtibmas disturbance 5. to provide guidance to community and community leaders 6. doing social activities 7. doing opinion counters and narrative counters as well 8. perform lidik and sidik activities (investigation). with the role of the nusantara task force members, it can be applied to the public in detail that the implementation of these tasks is in accordance with the pati police resort in preventing political insecurity during the 2019 elections, where with this role, the nusantara task force can also provide an explanation of the social position in the economy, education, government and also science among the many categories to describe the implementation of the tasks carried out by members of the nusantara task force, so as to produce behavior in which people change their attitudes and behavior to match social norms existing, and in many cases which can then be internalized into every social role, whether related to the rights, obligations, expectations, behavior and also norms of a person to face and fulfill a situation that exists in the community. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 473 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia factors affecting the implementation of the role of the satgas nusantara in prevention of political vulnerability in the election of the 2019 president in the pati police region in carrying out the role of the task force of the archipelago to prevent the occurrence of problems of political insecurity that existed during the 2019 presidential election in the pati area, there are several factors that influence it. based on the results of the study, it was found that the implementation of the prevention of political insecurity during the general election in the pati police jurisdiction organized by members of the nusantara task force was influenced by factors originating from: i. internal factors internal factors influence the task force of the nusantara in the implementation of preventing the occurrence of political insecurity during the general election in the pati police jurisdiction. internally there are several factors that influence the success of the nusantara task force in the implementation of preventing the occurrence of political insecurity during the general election in the jurisdiction of pati polres including from the knowledge and capabilities of the pati polres task force personnel on pati issues regarding the triggers for political insecurity and the negative impact of the problem that can directly disrupt the security and order conditions of the community and the holding of the upcoming 2019 election, so that the moment of the election can be constrained and not held properly. based on the writer's observation, the obstacle encountered by members of the pati police task force in preventing the occurrence of political insecurity lies not only in the ability of the nusantara task force personnel, but also comes from the problem of knowledge of the nusantara task force personnel regarding their legal review of various rules in election violations, especially the law that prohibits them, their criminal threats, their negative impact on the welfare of the community directly on the implementation of the general elections marked by various problems of disorderly kamtibmas in the political field, as well as the negative impact of political insecurity on the future of the community. as a result of members 'lack of http://creativecommons.org/licenses/by-nc-sa/4.0/ 474 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia understanding of these elements, this will certainly hinder members of the task force nusantara in convincing the public to jointly carry out preventive actions against political insecurity in the pati polres' jurisdiction. another problem that exists from nusantara task force personnel is originating from the limited members of the personnel, which based on the results of document studies it is known that nusantara task force members in the pati police jurisdiction only have 51 members, of course this is a problem. in making efforts to prevent the occurrence of political insecurity that exists in all villages in the pati police legal area. but the problem of limited knowledge and ability as well as the number of nusantara task force personnel in the pati police jurisdiction, which is in the effort to prevent the occurrence of political insecurity in the pati police jurisdiction, is helped by the policy of the kapolres which requires all its members to provide assistance in carrying out the task of the nusantara task force namely together to prevent the existence of political vulnerability in the pati police jurisdiction. other facilities used for the implementation of efforts to prevent the occurrence of political insecurity during the election in the pati police jurisdiction are also obtained from the provision of facilities from various institutions or other institutions. this can be observed in activities that have an element to urge the public so that they do not become victims of exploitation of various things that are forms of election violations, such as haox, black campaign, hate speech delivered on local radios owned by certain stakeholders , and the national police can broadcast it based on the support of facilities from these stakeholders so that efforts to prevent political insecurity during the general election in the pati police jurisdiction can be carried out properly. ii. external factors external factors affect the task force of the archipelago in the implementation of preventing the occurrence of political insecurity during the general election in the pati police jurisdiction. in addition to internal factors as explained above, there are several other factors (external factors) that affect the success of efforts to prevent political vulnerability during the election in pati pati's jurisdiction. these factors stem from the social conditions of the community in the pati police jurisdiction. based on the observations of researchers, the social conditions of the community in the pati police jurisdiction influence the success in preventing political insecurity during the election in the pati police jurisdiction. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 475 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia based on the observations of researchers, it is known that other factors that influence the success in preventing the occurrence of political vulnerability during the election in the jurisdiction of pati police also come from the condition of the relationship between pati police with the community, and other agencies. or other agencies. with this good relationship, the public, public agencies will easily accept invitations from pati police to take certain actions such as preventing political insecurity in this election this explanation is also in accordance with what was conveyed by members of the community in the pati police jurisdiction who also stated that they would work together to secure the implementation of this election from various potential disruption of kamtibmas, both from personal attacks on the occurrence of money politics practices, as well as from various threats the other based on the results of research on the factors that influence the nusantara task force in preventing political insecurity during the general election in the pati police area, it is found that these factors originate from internal factors derived from the number of nusantara task force personnel, the ability and knowledge of the nusantara task force pati police, pati kapolres policy, availability of infrastructure facilities and budget support from the kapolres personally, the accuracy of the choice of methods for preventing political vulnerability and the good ability of members to establish good relations between pati polres members and community leaders, stakeholders and all levels of society in the jurisdiction pati police. in addition to these internal factors, the implementation of the prevention of political vulnerability is also influenced by external factors originating from the social and cultural conditions of the community in the pati police jurisdiction, and advances in information technology that can be put to good use by the wider community. conclusion based on the results and discussion above it can be concluded that the description of political insecurity during the 2019 presidential election in pati police area comes from the behavior of voters or sympathizers from each party or supporters of each presidential candidate, which is then easily politicized by the interests of certain parties or persons in order to bring down the opposing parties thus making the political conditions in the pati police jurisdiction heat up. the role of the task force of the archipelago in preventing political insecurity during the 2019 presidential election in the jurisdiction of pati police in accordance with the sprin kapolri no .: sprin / 40 / i / 2018 dated january 8, 2018 about the establishment of the task force http://creativecommons.org/licenses/by-nc-sa/4.0/ 476 journal of law & legal reform volume 1(3) 2020 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of the archipelago which was carried out by carrying out early detection actions, identification problems, mapping problems, carrying out actions to mobilize community guards or experts who cause kamtibmas disruption, conducting guidance to community and community leaders, conducting social activities and conducting counter opinions and counter narratives and conducting investigations and investigations, the task force of the archipelago also had to prepare operation mantap brata namely to ensure the readiness of security in all pati areas, which subsequently is aimed at preventing political insecurity in the face of the 2019 elections both from the presidential and legislative elections. factors influencing the implementation of the task force of the archipelago in preventing political insecurity during the 2019 presidential election in the jurisdiction of pati polres are divided into two, namely: factors supporting the role of the task force in preventing political vulnerability during the 2019 presidential election were clear rules of law, and the availability of infrastructure that could be used by the task force in preventing political vulnerability in the region. the inhibiting factors of the nusantara task force's role in preventing political insecurity during the 2019 presidential election came from the limited number of personnel, the limited knowledge of members regarding various potential political vulnerabilities, the absence of a specific budget for the operations of the nusantara task force and the existence of conditions that were easily provoked by parties who were not to be responsible. suggestion in connection with the findings and discussion concluded in the sub-chapter above, suggestions that can be given by researchers related to the problem of this study can be used to increase the role of the national task force in preventing political insecurity during the 2019 elections in the pati police jurisdiction: 1. making an integrated performance planning both by the regional government and the national police, which can then provide operational assistance for securing the area in order to prevent political vulnerability carried out by the nusantara task force so that the problem of personnel limitations can be properly addressed 2. implement a reward and punishment system to all pati police members, who actively provide assistance to the task force nusantara in efforts to prevent the occurrence of political insecurity in the pati police jurisdiction. 3. carry out coaching to members of the task force nusantara, which can be done through providing skills training or providing political education so that members http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 1(3) 2020 477 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia have extensive knowledge about politics, the potential for security disturbances in the political field as well as various legal rules regarding violations of election criminal offenses as well as efforts prevention so that members of the task force nusantara can be more active in 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(2019). law enforcement and legal reform in indonesia and global context: how the law responds to community development?. journal of law and legal reform, 1(1), 1-4. https://doi.org/10.15294/jllr.v1i1.35772 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://journal.unnes.ac.id/sju/index.php/jphi/article/view/27259 https://journal.unnes.ac.id/sju/index.php/jphi/article/view/27259 https://journal.unnes.ac.id/sju/index.php/jphi/article/view/27259 https://journal.unnes.ac.id/sju/index.php/jphi/article/view/27259 https://doi.org/10.32661/resam.v5i1.18 https://doi.org/10.32501/jhmb.v3i1.35 https://doi.org/10.15294/jllr.v1i1.35772 journal of law & legal reform volume 3(4) 2022 431 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 4, october 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: august 11, 2022 revised: september 30, 2022 accepted: october 26, 2022 available online since: october 31, 2022 how to cite: rahmawati, sekar arum, gassa hadibroto, and ana silviana. “implementation of registration of ex-customary land through complete systemic land registration in pemalang regency”. journal of law and legal reform 3, no. 4 (2022): 431-456. https://doi.org/10.15294/jllr.v3i4.61451. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article implementation of registration of excustomary land through complete systemic land registration in pemalang regency sekar arum rahmawati1 , gassa hadibroto2 , ana silviana3 1,3 faculty of law, universitas diponegoro, semarang, indonesia 2 university of essex, wivenhoe park, colchester co4 3sq, uk  sekararum9898@gmail.com abstract this research means to determine that application through ex-customary land enlistment and that obstacles experienced in the application of old land registration in two sub-districts in pemalang district. the oncoming how used is a sociological juridical approach. this type of research is qualitative research, namely research that describes or describes how the http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 https://orcid.org/0000-0001-9666-1126 https://orcid.org/0000-0002-2129-3557 https://orcid.org/0000-0002-8831-0147 432 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia applicable laws and regulations are related to their implementation practices, which will then be analyzed. this study also found that applications for ex-customary land were starting to be registered by the village government, where this program was initiated by the central government in the complete systematic land registration (ptsl) programme. this programme is also based on few agendas, namely, determining the location of the program, selecting a committee as adjudication, followed by counseling, correcting physical data, and synchronizing land objects with witness of ownership, issue judgment on granting soil rights, bookkeepinfg and issuance of soil title certificates and transfers. right. giving in the form of a certificate itself aims provide legal certainty and legal protection for the owner of the land object. the obstacles faced are the boundaries of the soil parcels that are not in appropriate with the ready-made certificate. the conclusion of the implementation of land registration of ex-ulayat land in pemalang regency is registered by the village government through the complete systematic land registration program. keywords: registration of land, customary property rights, ptsl, complete systematic land registration introduction soil is firmly connected with human existence in regular daily existence. for a country, land assumes a significant part in showing the sovereignty of the country concerned. at the beginning of the founding of indonesia, there was already an awareness of nationalism, and the welfare of the people could only be achieved through government intervention. the arrangements in the preamble and principles of the 1945 constitution express that the method for accomplishing thriving for the indonesian public is to do the job of the state through its executives as giving headings, http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 433 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia strategy producers, and rules in view of the pancasila belief system and public way of thinking. 1 soil is an important aspect in life because soil is the main foundation of all activities carried out by humans. in addition, land functions as a source of wealth because land and its contents can provide various sources of income for the owner or those who control it. in the interim, one of the goals of land enrollment is to give lawful conviction in regard to control and responsibility for plot of land. 2 clause 33 entry 3 of the 1945 constitution communicates that: earth, water and the ordinary resources contained in that are compelled by nation and utilized for the best flourishing people. in light of this, it tends to be presumed that clause 33 passage (3) of the 1945 constitution is the legitimate reason for the planning of the uupa and is a source of law (material) in the development of national agrarian law which will bring prosperity, happiness, justice and legal certainty, to the nation and state.3 to understand the assurance of legitimate conviction in the land area, there are two things that should be thought of, to be specific the requirement for a composed land regulation and the execution of land enlistment. in other words, when talking about land registration, it means talking about one of the efforts in the context of realizing lawful assurance in the land area.4 land as a crucial thing makes every country in the world regulate its land ownership in such a way that it can be economically useful and at the 1 suhadi & dani muhtada, “transformation of the meaning of public interest in the indonesian regulations on land acquisition: a sustainable development, advances in social science, education and humanities research,” icglow 35 (2019): 01, hhtps/icglow-unnes. 2 kartika widyaningsih and budi santoso, “pelaksanaan pendaftaran tanah untuk pertama kali terhadap tanah yang belum bersertipikat melalui program nasional agraria (prona) di kantor pertanahan jakarta barat,” notarius 12, no. 2 (2019): 824– 41. 3 widyaningsih and santoso. 4 aartje tehupeiory, pentingnya pendaftaran tanah di indonesia (raih asa sukses, 2012). http://creativecommons.org/licenses/by-nc-sa/4.0/ 434 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia same time provide legal certainty. including indonesia, making rules to manage land demesne in the district of the republic of indonesia. 5 of course, having ownership of the land requires organized and orderly administrative support. the approach that may be used is to register land throughout indonesia. this is in appropriate with the directive in clause 9 section 1 of the intrinsic agrarian verdict, which guarantees the government's rightful conviction by maintaining land registration in all indonesian domains in accordance with the government by holding land registration in all indonesian domains as per the arrangements specified by government regulations.6 in the basic agrarian verdict, it is regulated that the rights for land that can be registered are property rights, planting rights, construction rights, use rights and lease rights for construction that are not required to be registered. considering the importance of converting ulayat rights into customary land as substantiation. legal demesne of soil rights is one of the objectives of the loga. its purpose is to create legal certainty and legal protection of land rights in a fair and equitable manner and to promote the country's economic growth. overall, the national economy in particular is speeding up the implementation of land registration, which is being done within the republic of indonesia through the complete system land registration acceleration (ptsl) program. 7 guarantees of legal certainty include: 1. lawful sureness in regards to the individual or element that is the holder of the right (subject of privileges), 2. lawful conviction in regards to the area, limits, and region 5 san yuan sirait, muhammad nazer, and busyra azheri, “sertifikasi tanah program pendaftaran tanah sistematis lengkap: deskripsi dan manfaatnya,” bhumi: jurnal agraria dan pertanahan 6, no. 2 (2020): 236–248. 6 mira novana ardani, “peran kantor pertanahan dalam kegiatan pendaftaran tanah sistematis lengkap,” gema keadilan 6, no. 1 (2019): 45–62. 7 rahmat riardo, “konversi hak atas tanah ulayat kaum menjadi hak milik melalui program pendaftaran tanah sistimatis lengkap di kota solok,” soumatera law review 2, no. 2 (2019): 193–206. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 435 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of a bundle of land freedoms (object of privileges), 3. legal certainty regarding the rights.8 the existence of substantiation of demesne of soil is a means of legal certainty, comprehensively from both the subject and the object of the soil. however, legal certainty is not only given directly, but there is also an initial process, namely registration which will eventually be given a certificate as substantiation of legal demesne of the soil.9 the benefits of the soil certification program for the community are still being debated. there are those who support and there are those who are against the policies of land certification programs, there are people who think that ownership certificates are the solution to land problems, while others think that it is the certificate itself that triggers land problems. some argue that proof of property rights is necessary protect the most vulnerable of society, for others, proof of title is a major cause of marginalization.10 one of the soil enrollment exercises includes first land enlistment. first soil enlistment is the registration of soil whose object has not been enrolled in view of goverrnment regylation issue 10 of 1961 concerning soil registration and pp 24 of 1997. there are two ways to register this event activities, namely systematically and sporadic. systematic soil enrollment belonging soil registration activities done out simultaneously by the government in the region or part of the domain of a town or sublocale. 11 based on article 3 of pp no. 24 of 1997 concerning land registration, the objectives of soil registration are: 8 saharuddin daming and eka sri budi harsini, “tinjauan hukum administrasi negara terhadap pendaftaran tanah atas hak milik adat sekitar garis sempadan situ,” yustisi 8, no. 2 (2022): 65–90. 9 masnah masnah, “implementasi kebijakan pendaftaran tanah sistematis lengkap (ptsl) di kabupaten muaro jambi,” jurnal renaissance 6, nno. 2 (2021): 783–801. 10 sirait, nazer, and azheri, “sertifikasi tanah program pendaftaran tanah sistematis lengkap: deskripsi dan manfaatnya.” 11 isdiyana kusuma ayu, “problematika pelaksanaan pendaftaran tanah melalui pendaftaran tanah sistematis lengkap di kota batu,” legality: jurnal ilmiah hukum 27, no. 1 (2019): 27–40. http://creativecommons.org/licenses/by-nc-sa/4.0/ 436 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. registered thus they can quickly prove themselves as the holder of the right in question. provide a form of protection and legal certainty to people who own land objects, buildings and other rights with proof of certificate ownership. 2. providing information to the government and the public, as well as ensuring the confidentiality of data from irresponsible elements such as the land mafia, which often occurs. in accordance with the law on land parcels. 3. the realization of orderly land administration.12 accelerate the advancement of soil registration activities to realize orderly land management. the ministry of agriculture and spatial planning/national soil agency (ministry of atr/bpn) organized an innovation in the national strategic plan, namely the complete system of land registration (ptsl).13 ptsl is one form of fulfilling the government's duty to ensure legal certainty and protection of community soil demesne. after that, those who receive the certificate can use the certificate as a legally valid business support capital to improve their welfare. however, there are still various problems at the implementation level.14 for soil registration in indonesia, the ministry aims to register all soil in the republic of indonesia by 2025 at the latest through the land program, which is essentially a full system of land registration (ptsl). in accordance with pp number 24 of 1997 article (1) paragraph (10) 12 ria sintha devi and melinda marsaulina hutapea, “tinjauan yuridis terhadap pendaftaran hak atas tanah melalui proyek pendaftaran tanah sistematis lengkap (ptsl) di kantor badan pertanahan nasional kota medan,” jurnal rectum 1, no. 1 (2019): 47–86. 13 nugraha salman ishaya, haryo budhiawan, and koes widarbo, “implementasi hak servituut pada pelaksanaan pendaftaran tanah sistematis lengkap di kabupaten bekasi,” marcapada: jurnal kebijakan pertanahan 1, no. 1 (2021): 1–16. 14 muhamad burhanuddin, lidya christina wardhani, and faizal adi surya, “pelaksanaan pendaftaran tanah sistematis lengkap (ptsl) sebagai upaya untuk mencegah sengketa kepemilikan dan batas tanah di kantor pertanahan kabupaten kudus,” jurnal suara keadilan 23, no. 1 (2022): 51–61. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 437 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia systematic land registration is land registration which is completed at once by the government in a space or part of a city, city or sub-district. 15 the initial land registration is land registration whose object has not been enrolled in light of government regulation item 10 of 1961 about soil enlistment and pp 24 of 1997.this enlistment activities is done in two ways, namely systematically and sporadically. efficient land enrollment is a demonstration of land enlistment that is temporarily completed by the government in a domain or part of a municipal or sub-local domain.16 customary land in field practice is land that has been controlled for generations by a certain community which from the time of their ancestors was controlled at least 20 years before the enactment of the uupa. a little description of customary soil is soil rights that have been removed from ulayat and are individual in nature. since the dutch era, this customary land has been subject to a tax called the agricultural tax, which is collected by the land product tax office (landrette). taxpayers are given proof of tax payment whose names can vary, for example: girik, petok, detail, ketitir, etc. that the birth of the republic of indonesia, which is a nation state, has various ethnic backgrounds and social systems.17 in order to determine which areas are designated as locations for systematic registration, a regulation of the state minister is issued and for the determination of that location, both the heads of state regional office and heads of local state offices are required. pemalang is one of the districts participating in the ptsl program. the implementation of this scheme is considered very relevant considering the scope of land rights in pemalang regency there are many lands whose status is still not registered. this condition is one of the triggers for several 15 retni gampu, “masalah pendaftaran tanah untuk memperoleh sertifikat hak milik atas tanah menurut hukum positif dan hukum adat,” lex privatum 6, no. 9 (2019). 16 isdiyana kusuma ayu, “kepastian hukum pendaftaran tanah melalui pendaftaran tanah sistematis lengkap di kota batu,” mimbar hukum 31, no. 3 (2019): 338–351. 17 suparjo sujadi, “pendaftaran tanah (initial registration) tanah bekas hak milik adat di kantor pertanahan kabupaten bogor dan kota depok (laporan penelitian singkat mengenai praktek pelaksanaannya),” jurnal hukum & pembangunan 34, no. 2 (2017): 143–163. http://creativecommons.org/licenses/by-nc-sa/4.0/ 438 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia land problems in the community, so that it does not guarantee legal certainty over existing land rights.18 the enrollment of ex-standard land in gambuhan village, pulosari district and gintung village, comal district, pemalang regency as the object of complete systematis land rejistration is done on the grounds that there are as yet many terrains that are dependent upon standard regulation, counting standard proprietary enrolled in the village head office which knownt as letter c and has not been or on the other hand isn't enrolled at the national land agency office in pemalang regency. therefore, the problem of customary land ownership which has been passed down from generation to generation from the time of the ancestors has caused many community members who still have not registered and have certificates for their land. as for previous research by digging information from previous research to facilitate the author in compiling research conducted by hanida gyuh, (2018) that the implementation of complete systematic land registration (ptsl) in sleman regency has reached the target of 26,000 parcels of land and 30% of the remaining parcels of soil that have not been completed. programme registered soil registration is a a complete and systematic soil registration scheme is expected to be completed soon programme. as for pande putu erma's research, (2006) this research leads to low legal awareness of the people of grobogan regency who do not understand how important proof of land registration is to obtain proof of legal demesne of the soil objects that we have, to launch government programs, grobogan regency adds equipment technical officer at the land office. where also serves to improve services to the community in order to facilitate the implementation of soil registration. likewise, research by daike ayu pratiwi, (2016) points out that there is a problem with the registration of ex-ulayat land rights, so a solution is provided by holding legal counseling so that it can indirectly improve legal understanding by 18 m syuib and sarah diana aulia, “implementasi ptsl sebagai upaya pencegahan konflik pertanahan di kecamatan ingin jaya kabupaten aceh besar,” jurnal justisia: jurnal ilmu hukum, perundang-undangan dan pranata sosial 6, no. 2 (2021): 217–234. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 439 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia providing legal counseling specifically and generally. according to setyo wibowo, (2007) that the implementation of the sale and purchase of exownership (customary) land in bekasi regency, land certificates are incomplete and there are no heirs. can register their rights to the land office, the buyer does not obtain permission to transfer his land rights and has difficulty proving his rights to other parties, dispute resolution is carried out through the rt level, villages and sub-districts as a family if it has not been resolved in court. furthermore, wisma teguh pambudiarta, (2011) concerning the legal strength of former customary land or yasan judging from the government regulation number 24 of 1997 concerning land registration that former customary lands that have not been registered cannot be transferred, therefore they need to be registered at the city land office. constrained by limited facilities and infrastructure, as well as incomplete application files. the buyer does not obtain permission to transfer his land rights and has difficulty proving his rights to other parties, dispute resolution is carried out through the rt, village and district levels in a family manner if not resolved in court. furthermore, wisma teguh pambudiarta, (2011) concerning the legal strength of lands formerly owned by customs or foundations judging from government regulation number 24 of 1997 concerning land registration that former customary lands that have not been registered cannot be transferred, therefore they need to be registered at the city land office. constrained by limited facilities and infrastructure, as well as incomplete application files. therefore, need to be registered at the city land office. constrained by limited facilities and infrastructure, as well as incomplete application files. the reason the researcher chose the research location in gambuhan village and gintung village was because gambuhan village had the largest number of customary land registrations through the complete systematic land registration (ptsl) program among other villages, and vice versa, gintung village had the largest number of customary land registrations through the complete systematic land registration program http://creativecommons.org/licenses/by-nc-sa/4.0/ 440 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia (ptsl) is the smallest among other villages in pemalang regency. this is because the research location has a relationship with the problems in the object of research in the implementation of the complete systematic land registration program for former customary lands. thus, based on the explanation described above, it is necessary to examine the title in this study "implementation of land registration of former indigenous land through the complete systematic land registration program (ptsl) in pemalang regency. method oncoming technique used in this survey is a qualitative method. this type of study is sociological juridical, which is to obtain data from research data in the field, which is then analyzed. this survey aims to carry out the registration of ex-ulayat land in two sub-districts in pemalang regency through the complete systematic land registration (ptsl) program, the obstacles faced and how to overcome them. the data used in this study are: primary data, namely data originating from the research location facile through observation, interviews and secondary data, namely tracing data from primary books that are considered to represent the object of research. data was collected through observation, interviews, document studies and literature studies. observations were carried out in accordance with the reality in the field and used direct observation and interviews were conducted by way of question and answer orally. the location of the research was carried out at the national land agency of pemalang regency, the gintung village village office and the gambuhan village office of pemalang regency. the theory used to analyze the matter of this research is the theory of law enforcement and legal certainty. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 441 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia result & discussion i. implementation of land registration of former customary ownership rights through the complete systematic land registration program in pemalang regency soil enlistment is an authoritative action done by the proprietor of the land, either in the exchange of freedoms or the allowing and acknowledgment of new privileges. the enrollment action gives a lucidity on the situation with the land. enrollment comes from "cadastre" in dutch which is a specialized term for a record that shows the region, worth and responsibility for a piece of land. the word cadatre comes from latin initials capitastrum, and that implies an accounting or capita unit which was utilized for soil charges in rome. 19 with the enrollment of land or the granting of land rights to all subjects of rights, they are also given the authority to use the land according to its designation. thus, guarantee of legal certainty will be created for the subject of rights in the demesne and use of the land. soil enrollment exercises will deliver confirmation of land freedoms called authentication. with a land certificate, legal certainty regarding the type of rights to it, the subject of the right, and the object of the right becomes real. stacked on other written evidence, certificates are solid proof of entitlement. 20 soil tenure and ownership often lead to conflicts, both vertical and horizontal conflicts. in acknowledging legitimate sureness of land possession in indonesia, it has been managed in clause 19 passage (1) of law item 5 of 1960 concerning basic agraruan regulations (hereinafter 19 bambang sugianto, “pendaftaran tanah adat untuk mendapat kepastian hukum di kabupaten kepahiang,” jurnal panorama hukum 2, no. 2 (2017): 131–148. 20 reda manthovani and istiqomah istiqomah, “pendaftaran tanah di indonesia,” jurnal magister ilmu hukum 2, no. 2 (2021): 23–28. http://creativecommons.org/licenses/by-nc-sa/4.0/ 442 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia composed uupa) that's what which specifies "to guarantee lawful conviction by the ministry, soil enrollment is a held all through the area of the republic of indonesia as per the arrangements directed by a ministry rule”. soil registration has a good impact, including: (a) the existence of legal certainty over land rights, (b) a clean and orderly land registration service system, (c) avoiding conflicts or disputes due to certificate status, (d) creating public trust in national land agency.21 legitimate assurance over soil is something outright that should exist to keep up with the security of land use being developed and to make lawful conviction over land possession for individual individuals who need to be in contact with the land. legal certainty referred to in land enlistment will bring about the issuance of a testament of verification of privileges.22 as far as giving legitimate sureness and lawful security of property freedoms over land, as per government regulation no. 24 of 1997 concerning land registration, the government is obliged to register all land parcels in the territory of indonesia, both with a systematic and sporadic approach. the first land registration activity in indonesia was called prona, then it was replaced with an accelerated land registration program from the central government in 2017 relating to the provision of certificates to the community, namely complete systematic land registration (ptsl) up to 2025 because there are still many lands that have not been registered. certified or uncertified. the differences that occur between prona and ptsl, namely the prona program is more specifically for people who have a low economic group or less well-off, while ptsl is not only for low-income groups but for all groups of people. soil enlistment interestingly is an act of registration after land registration is a protest that the poor have registered, see government 21 ni putu adnyani, imam kuswahyono, and supriyadi supriyadi, “implementasi pendaftaran hak atas tanah komunal di desa adat pakraman bungbungan bali,” jurnal ilmiah pendidikan pancasila dan kewarganegaraan 5, no. 1 (2020): 148–158. 22 rahmat ramadhani, “pendaftaran tanah sebagai langkah untuk mendapatkan kepastian hukum terhadap hak atas tanah,” sosek: jurnal sosial dan ekonomi 2, no. 1 (2021): 31–40. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 443 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regulation number 10 of 1961 and government regulation number 24 of 1997. land enlistment interestingly is helped out through deliberate land enrollment and irregular land enrollment. precise land enlistment is a land enrollment movement interestingly that is done at the same time which incorporates all land enlistment protests that poor person been an enlisted in locality or part of the region of a village or sub-locale. deliberate land enlistment is done on the drive of the government in light of a long haul and yearly work plan and is completed not entirely settled by the state minister of agrarian affairs/head of bpn. in shebang that a village or subdistrict not appointed as a complete systematic land registration area, it is carried out through sporadic land enrollment. in the ptsl program at the pemalang regency land office, one of the objects of land enrollment through the ptsl program is former customary land ownership in gambuhan village, pulosari district and gintung village, comal district, pemalang regency. soil enrollment through the ptsl program is because there are still many customary soil rights that have not been certified or registered with the land office. the origin of the former soil owned by (customary) land in pemalang regency is land that has existed since the 1960's, then the status of the land is not yet certified (the land certificate has never been made) and in pemalang regency it is known as leter c. / girik / petok. given that there are still many customary land rights in pemalang regency that have not been certified, in practice there are still many people who still refer to it as customary land. as per rule ministry no. 24 of 1997 affirms that property privileges are property freedoms as per adat or as indicated by the basic agrarian law no. 5 of 1969 (uupa) whether individual or group is a hereditary right and is the strongest for property rights holders and has the right to be free by selling, donating, exchanging and inheriting it. basically, the registration of former customary lands in gambuhan village, pulosari subdistrict and gintung village, comal subdistrict through the complete systematic land registration (ptsl) program with community land registration in general there is no difference. the thing that distinguishes the registration of the two types of land is in the proof http://creativecommons.org/licenses/by-nc-sa/4.0/ 444 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of their rights. on land owned by customary rights, it is proven by letter c with proof of land ownership such as petuk leter c and is also located on the origin of the land. the requirements that must be met are the same as the requirements for ptsl in general. the requirements that must be met in the registration of customary land rights to submit an application to become property rights, among others: 1) quote c village, removed from the local village c book list quote. 2) photocopy of ktp of land owner. 3) copy of land owner's family card. 4) photocopy of pbb or taxpayer. 5) statement from the owner that the land is not in dispute. that the letter c book can be used as evidence that is owned by a person, when that person wants to obtain rights to his land and wants to register land in his name. and it cannot be forgotten that letter c is also a necessary condition for the conversion of customary land, as evidence of customary property rights. the implementation of land registration of ex-customary land in two sub-districts in pemalang regency through the complete systematic land registration (ptsl) program at the pemalang regency land office is carried out through the application, preparation stages (socialization, determination of location, planning personnel and establishment of the acceleration committee, training); counseling; juridisal data collection; juridical data processing and proof of rights; soil inspection; announcement; endorsement; issuance of decision letter on determination of rights and decision on affirmation/recojnition of rightss; bookkeping rights; issuances and submission of certificates; warkah/document management; reporting. one of the stages of the soil registration activity is the physical data collection activity. physical data collection in the context of accelerating complete systematic land registration (ptsl) will produce optimal results if the it is done to measure and map out land parcels systematically in groups in one complete village/kelurahan area, in addition to being http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 445 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia supported by the availability of a land registration base map. this is what makes it different from previous asset legalization projects. apart from the technical implementation, the activity financing factor also experienced a significant decrease.23 basically, when implementing ptsl, care must be taken to ensure complete understanding, as a systematic approach is very different from piecemeal importance, from determining the location of land registry entries, data collection, data processing, budgeting, to creating parcels that are systematically recorded land. systematic registration not only brings about the output in the form of certificates, but the most important thing is to register every land plot in indonesia, while repairing the existing certificate products and suppressing land disputes.24 table 1. realization of the ptsl program for the pemalang regency land office in 2019 23 ayumi kartika sari, “peraturan hukum program pendaftaran tanah sistemik lengkap (ptsl),” jurnal regionomic 4, no. 2 (2022): 26–32. 24 septina marryanti and yudha purbawa, “optimalisasi faktor–faktor yang mempengaruhi keberhasilan pendaftaran tanah sistematis lengkap,” bhumi: jurnal agraria dan pertanahan 4, no. 2 (2018): 190–207. no. village target pbt realization pbt target shat 1 plakaran 3.043 3.644 2.441 2 walangsanga 4.15 4.105 1.853 3 clekatakan 4.988 4.986 3.088 4 batursari 1.88 2.373 1.35 5 penakir 661 661 530 6 gunungsari 2.782 2.739 2.419 7 jurangmangu 1.203 1.203 1.158 8 gambuhan 5.475 5.825 4.053 9 karangsari 500 409 466 10 nyalembeng 1.426 1.226 776 11 pulosari 4.033 3.985 1.92 12 pagenteran 1.11 1.095 750 13 siremeng 3.749 3.749 2.75 14 cikendung 3.631 3.628 2.008 15 sambeng 1.168 1.978 1.477 http://creativecommons.org/licenses/by-nc-sa/4.0/ 446 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia source: final report of ptsl activities at the land office of pemalang regency in 2019 from table 1, it is stated that the implementation of complete systematic land registration (ptsl) according to decree number: 90/sk33.27/i/2019 dated january 2, 2019 has determined the location of complete systematic land registration activities at the pemalang regency land office. among them, there are 31 villages/kelurahan as listed in table 1 above. based on the activities in the table above, it is certain that there are still many villages/kelurahan whose communities still have certificates for their land. then from 31 villages/kelurahan it can be said that one of the villages that has the largest number is gambuhan village located in pulosari district, while the one with the smallest number is gintung village located in comal district which has the least number of people who do not have certificates. no. village target pbt realization pbt target shat 16 peguyangan 1.655 1.655 1.259 17 karangmoncol 4.483 4.483 3.389 18 semingkir 4.595 4.592 2.444 19 kejene 4.535 5.467 2.65 20 surajaya 1.165 1.165 1.075 21 wanamulya 1.428 1.335 1.082 22 bojongnangka 3.01 2.971 2.593 23 tambakrejo 2.757 2.755 2 24 jebed selatan 1.528 1.528 1.215 25 temuireng 67 67 532 26 nyamplungsari 1.626 2.626 1.93 27 tegalsari timur 345 344 988 28 tegalsari barat 2.901 3.901 2.263 29 gintung 585 585 426 30 wonokromo 1.207 1.207 800 31 bumirejo 1.037 1.037 665 total 72.723 77.324 52.350 http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 447 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table 2. realization of issuance of ptsl program certificates for pemalang regency land office in 2019 no. activities/sub activities field (bidang) realization (bidang) percentage 1 counseling 72.723 72.723 100 2 juridical data collection 52.350 52.350 100 3 land plane measurement 72.723 77.324 10,63 4 ground inspection 52.350 52.350 100 5 soil inspection 52.350 52.350 100 6 certificate issuance 52.350 51.276 97,94 7 reporting 52.350 52.350 100 8 certificate submission 52.350 51.276 97,94 total 52.350 51.276 97,94 source: final report on ptsl activities at the pemalang regency land office in 2019 in the data above, that through the complete systematic land registration program at the pamalang regency land office in 2019 it can be carried out including 77,324 pbt and 52,521 shat, the details of shat are cluster 1 (certificates) as many as 51,276, cluster 3.1 as many as 1,245 and all of them can be implemented in accordance with implemented target time. 2. obstacles in the implementation of land registration of ex-traditional property rights throught the complete sysyematic land registration program in pemalang regency in every program implemented by the government, there must always be an evaluation. this is because evaluation is very important in a program implementation process because with evaluation, makers and implementers can assess the program so that the results of the program will be even better in the future. one of the government programs in the field of land registration that needs to be evaluated is the complete http://creativecommons.org/licenses/by-nc-sa/4.0/ 448 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia systematic land registration program as a form of government responsibility in providing legal certainty to the community in terms of ownership of land rights.25 there are a few impediments in the execution of soil enrollment of excustomary land in two sub-districts in pemalang regency through the complete systematic soil enrollment program, which include: 1) the public/participants still think that the cost of implementing the certificate through the complete systematic land registration is free, including taxation. the fee for this ptsl program is levied by the government or in other words free (no charge). ptsl participants are only required to pay the cost of obtaining land certificates for land without land certificates, making and installing boundary markings, the cost of acquiring land and building rights (bphatb) if affected, stamp duty, photocopy of letter c based on existing provisions, the fee for submitting a complete systematic land registration certificate is only charged rp. 150,000, (one hundred and fifty thousand), and that also requires coordination with the village party by holding joint deliberation, so that later there will be no disputes and conflicts. misunderstanding between citizens. 2) landowners who cannot be present at the time of measurement, delaying completion and difficult to contact. the large number of people participating in the land registration are working, this situation causes the entire community to not be able to attend on time when the measurement of the plot of land is carried out. then the landowner is also difficult to contact because there are also landowners who work outside the city so that the committee or village authorities find it difficult to contact. officers also have to wait for all parties to be present at the measurement time. if the landowner is difficult to contact, then this causes the measurement of customary land rights to be hampered, to take measurements all land owners are required to be present but in reality in the field it is not easy to be 25 gemala elfani and m fachri adnan, “evaluasi pelaksanaan program pendaftaran tanah sistematis lengkap di kabupaten sijunjung,” jisip (jurnal ilmu sosial dan pendidikan) 6, no. 2 (2022), https://doi.org/http://dx.doi.org/10.36312/jisip.v6i2.2953. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 449 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia present at the same time. in this case, the measuring officer must notify in advance if the measurement will be carried out on the plot of land in question. 3) field boundary signs that are still not in accordance with the finished certificate at the beginning of the implementation of ptsl, it is necessary to conduct measurements of all plots of land that will participate in ptsl activities. but in practice until the completion of the distribution of certificates to each owner of the land parcel, there are still many certificates that have been made but the results of measuring the land are still many and do not match the certificates that have been made. this raises the need for a re-measurement. 4) determination of unclear boundaries of land parcels making it difficult to measure and map. it is as yet observed that there are numerous limits of land distributes are now claimed by somebody who has enlisted their territory however the estimation letter or image of the circumstance is at this point not as per the genuine circumstance. in this case, it will be difficult for the community whose house is next to the land that has been certified because from the results of the existing certificate the building will cover the area of the house next to it whose land has not been registered, so that residents who want to register their land will not be able to because in the registration of their land parcels. it has been recorded that the field already has a land certificate. so that residents whose land has been covered with other land boundary markings will not be able to register their land. the existence of matter in the enforcement of soil registration with the complete systematic land registration (ptsl) program in pemalang regency, indeed not everything went smoothly, researchers encountered several obstacles that occurred during the ptsl program implementation activities, both external and internal obstacles that occurred at the regency land agency. pemalang and the obstacles that occurred from both parties, gambuhan village, pulosari district and gintung village, comal district, pemalang regency. http://creativecommons.org/licenses/by-nc-sa/4.0/ 450 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia from the above, it includes the theory of law enforcement where the theory means the most common way of putting forth attempts to uphold or really work legitimate standards as conduct rules in rush hour gridlock or lawful relations in friendly and state life. as indicated by soerjono soekanto that there are factors that can impact, specifically: the law variable legal itself, the law enforcement factor, the facilities and infrastructure factors, the community and cultural factor. the factors that cause delays in the enforcement of land registration in gambuhan village and gintung village, pemalang regency have a relationship with the above factors so that it can be concluded as follows. first, legal culture factors and legal awareness of the community also greatly affect the process of registering the land. where the local community still lacks education and knowledge about the costs of the ptsl program so that people think that the land registration process does not spend a penny. second, factors of facilities and infrastructure that have not been declared ideal and adequate. in terms of landowners who cannot be present on time so that it slows down the completion time. then there is the determination of the boundaries of soil parcels that are not clear, making it difficult to measure. third, law enforcement factors where legitimacy capacity, mindset or character of law enforcement plays an important role, regardless of whether the guidelines are good, but the nature of the officials is not good, it will bring some problems. therefore, one of the keys to the progress of policing is the attitude or character of law enforcement. then there is a mistake in data in regard to the object of land enlistment, so there are as yet numerous limit indications of a package of land that are as yet not as per the ready-made certificate. four, the legal factor itself is that the certificate has a very important role in the land registration process because it will provide legal certainty but with the presence of boundary markings in each field that are still not in accordance with the finished certificate, it becomes an obstacle that affects land registration. thus, the above states that these factors can affect the land registration process. the obstacles here also include parties with their respective duties http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 451 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia or roles in carrying out ptsl program activities that have been carried out. the obstacles encountered in the enforcement of the land registration of former customary lands require a link between the government as the program implementer and the community who play an active role in the soil registration to work together in carrying out the complete systematic land registration (ptsl) programme activities so that it is carried out properly. especially for the village community who participate in registering their customary land rights. then, there needs to be participation from the community which is an important role in accelerating the implementation of the complete systematic land registration (ptsl) program in the field. because if the community as the applicant is not agile, it will hinder or affect the ptsl implementation process, and which is obviously very time consuming. to be able to support the performance of a land registration system, it is necessary to have a foundation that can be held in a land registration so that it does not deviate from the purpose or function of the land registration itself. conclusion this study concluded that the implementation of registration of excustomary land rights is registered by the village government through the complete systematic land registration program which includes: location of ptsl activities, establishment and determination of ptsl appraisal committees, consultation, collection of physical and legal data on property, inspection of property, disclosure of physical and legal data on property and proof of entitlement, decision to grant or recognize soil rights, accounting and deeds of land rights the issuance and presentation of land title deeds are intended provide legal certainty and protection for soil rights holders. in the registration of customary land rights, the proof of registration of rights is in the form of letter c, while the land rights given to the certificate are in the form of property rights in the name of http://creativecommons.org/licenses/by-nc-sa/4.0/ 452 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia individuals which are then designated as buildings for residence and rice fields. the obstacles faced in implementing the registration of customary land rights in pemalang regency in 2019 are that the community still thinks that the cost of implementing certificate obtained through complete systematic recording in the land register is free, including taxation, field boundaries that are still not in accordance with the certificates already issued. therefore, landowners who cannot be present at the time of measurement, to determine the boundaries of the land are not clear at the time of measurement and mapping, in this case hampers 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kartika, and budi santoso. “pelaksanaan pendaftaran tanah untuk pertama kali terhadap tanah yang belum bersertipikat melalui program nasional agraria (prona) di kantor pertanahan jakarta barat.” notarius 12, no. 2 (2019): 824–841. https://doi.org/https://doi.org/10.14710/nts.v12i2.29121. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 455 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia acknowledgment the researcher realizes that this research can be completed with the help of various parties, therefore the researcher would like to thank, especially to the honorable: sugeng priyanto, sp (head of sub-section for land registration of the land office of pemalang regency), faiduloh firdous (secretary of gambuhan village pulosrari district, pemalang regency), wahyu nurdadi (head of gintung village, comal district, pemalang regency) funding information none conflicting interest statement the authors have no conflict of interest with the journal. publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. about author(s) sekar arum rahmawati, s.h, born in tegal city, october 23, 1998, the author is the 4th child of 4 siblings and a student who is currently studying at the diponegoro university notary masters class 2021. the author also graduated from the faculty of law, semarang state university (unnes), graduated with a predicate cumlaude in 2021. taking interest in agararia and notary civil law. gassa hadibroto, is a student currently studying at the university of essex majoring in the faculty of medicine in england. the author is the 2nd child of 3 siblings who was born in england on december 2, 2001. dr. ana silviana, s.h., m. hum, is a notary lecturer at diponegoro university. the author also serves as chair of the notary masters study program at diponegoro university and is an expert lecturer in civil law. http://creativecommons.org/licenses/by-nc-sa/4.0/ 456 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the author is also actively participating in activities such as case studybased training and student-centered learning (scl) class iii learning activities in 2021 undip community institute services (p2kkn). in addition, the author also actively publishes national and international journals. the author is also active in student and educational activities, especially in the semarang city area http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 197 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article settlement of auction disputes over land and building collateral objects mohamad dodi prihartanto1 1 mohamad dodi prihartanto sh & partners law office jl. tentara pelajar no. 24 rt 002 rw 001, kembaran, kebumen, indonesia  dodi.prihartanto@gmail.com cited as prihartanto, m. d. (2021). settlement of auction disputes over land and building collateral objects. journal of law and legal reform, 2(2), 197-210. https://doi.org/10.15294/jllr.v2i2.46613 submitted: november 16, 2020 revised: january 27, 2021 accepted: april 27, 2021 abstract the implementation of the auction still faced many obstacles and lawsuits that lead to auction disputes against the object of the guarantee rights. the purpose of making this article is to find out how land and building guarantee auction disputes occur for the object of the mortgage and how to resolve it. the qualitative approach method is descriptive analytical namely describing systematically factually and accurately regarding the settlement of auction disputes in accordance with the legislation, then the legal facts are analyzed. the research revealed and showed that the conduct of auctions often results in disputes. the auction will affect the parties involved as auctioneer, namely the bank as the creditor, the state wealth and auction service office (kpknl), and the national land office. this of course will also affect public confidence in legal certainty in the implementation of the auction. the auction in this case the kpknl, uses the basis of the execution parate, as well as through the fiat court. parate execution based on article 6 of the mortgage law which is supported regulation of the minister of finance concerning technical guidelines for implementation of tenders, is expected to be implemented properly so that legal certainty can be achieved. apart from that, settlement of an auction dispute for the object of the mortgage rights is carried out by selling under hand, this is journal of law and legal reform (2021), 2(2), pp. 197-210. doi: https://doi.org/10.15294/jllr.v2i2.46613 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46613 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 198 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia based on article 20 paragraph (2) uuht number 4 of 1996, "the right to sell on one's own power" the object of the mortgage. keywords: disputes, auction, mortgage introduction economic development as part of national development is one of the efforts to create a just, fair and prosperous society based on pancasila and the 1945 constitution. to maintain the sustainability of this development, the role of the government and the private sector is needed. in this case, the role of the private sector represented by the community either individually or as a legal entity requires a lot of funds to be able to implement it. the basis of high needs and the unmet economy means that many people make loans through banking services. the distribution of loans from banks to the public, both individuals and legal entities as mandated in law number 10 of 1998, is an amendment to law number 7 of 1992 concerning banking, described in article 1 point 11, "credit is provision of money or an equivalent claim, based on a loan agreement between the bank and another party which requires the borrower to pay off the debt after a certain period of time with interest" (jumhana, 2021: 413). people who make loans or as owners of debts are called debtors, while banks that provide loans or owners of receivables are called creditors. every credit that has been approved and agreed upon between the creditor and the debtor must be stated in the credit agreement in writing and signed by both parties. credit agreements made in writing in the procedure for making them must refer to the agreement law regulated in the civil code, in particular article 1313 of the civil code which states that an agreement is an act in which one or more people bind themselves to one or more people. besides the existence of a credit agreement as the main agreement, the debtor also delivers collateral which is used as collateral at the bank. collateral submitted to the bank as evidence of the debtor's good faith to cooperate with the bank and to ensure legal certainty. to ensure legal certainty for banking institutions (creditors), the guarantee institution was created, namely law no. 4 of 1996 regarding the land rights and objects related to land or better known as the uuht. with the existence of this law, it is hoped that its implementation in practice will provide a stronger position and ensure greater legal certainty regarding the rights of creditors. what is called the mortgage rights according to the uuht in article 1 paragraph 1 is "the guarantee imposed on land rights as referred to in law number 5 of 1960 concerning basic agrarian principles, along with other objects which are an integral part of the land, for the settlement of certain debts, which give the position which gives priority to certain creditors over other creditors”. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 199 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the debtor as an indebted party if he does not perform the obligations as mutually agreed upon in the credit agreement, it can be said that the debtor has committed "default". consequently, the debtor defaults, then the collateral object can be transferred or sold through a public auction to pay off the receivables of the mortgage holder by preceding the preferred creditor. however, for the execution of the object of the credit guarantee, there are many obstacles, not always accepting the execution of the object of the credit guarantee. the debtor who feels aggrieved by the execution can take up the fight. this resistance effort will be realized by the debtor in a lawsuit in the district court. therefore, this research is intended to analyze on how does a land and building guarantee auction dispute happen? and how to settle land and building collateral auction disputes for the object of the mortgage rights? method the qualitative approach method is descriptive analytical namely describing systematically factually and accurately regarding the settlement of auction disputes in accordance with the legislation, then the legal facts are analyzed (fajar & ahmad, 2010: 183). this type of doctrinal legal research, namely research that originates from the applicable laws or legal regulations and doctrines. the focus of research is a problem that originates from the experience and knowledge of researchers obtained through scientific literature or other literature. where is the focus of research as contained in the formulation of the problem, namely regarding the occurrence of auction disputes and their resolutions. sources of data were obtained through literature study to obtain primary legal material, namely the main legal material in the study (legislation), namely the 1945 constitution, law no. 10 of 1998 is an amendment of law no. 7 of 1992 concerning banking, law no. 4 of 1996 concerning mortgage rights and other laws and regulations, including court decisions (marzuki, 2010: 146-155). furthermore, secondary law (expert opinion), namely legal materials to explain primary legal materials from books or journals, tertiary legal materials serve to explain primary legal materials and secondary legal materials (dictionaries, encyclopedias, internet and others). data collection techniques and procedures are carried out through document study, namely based on written legal documents (legislation). the validity of the data using source triangulation by checking steps, comparing the information obtained, and conducting analysis through different sources. technique data analysis was carried out in a qualitative normative manner, namely starting from the statutory norms through interpretation. http://creativecommons.org/licenses/by-nc-sa/4.0/ 200 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the occurrence of a land and building collateral object auction disputes as one of the efforts to reduce credit risk, the provision of bank credit requires collateral to be used as collateral. the function of providing guarantees is to provide rights and powers to the bank to get repayment with these collateral, if the debtor defaults on not paying back his debt at the time specified in the agreement. collateral that is often used is in the form of land and / or buildings that have proof in the form of a certificate and are bound by mortgage rights as regulated in law no. 4 of 1996 concerning mortgage rights. in dealing with nonperforming loans, various efforts have been made by banks to recover money from debtors, namely through regular collection efforts or through other efforts. the recovery process carried out by the bank is very difficult because in general the debtors faced are debtors who are bankrupt, have bad intentions, have died, even the debtor has run away (skip), so that the installment payments to the bank are not fulfilled. to deal with this, the bank usually uses a parate executie auction mechanism. in auction, what often happens is that the bank always faces a counterclaim from debtors who do not want their collateral to be auctioned off. the lawsuit was based on the fact that the bank conducted an auction without prior approval from the debtor, even though the agreement deed already contained a clause if the debtor in default of the bank would take the necessary actions to return the bank's assets, including the auction effort. this is what often becomes a dispute between banks and their debtors, where the debtor feels that the auction action against the object of collateral is an action against the law. the factors causing the debtor not to carry out payment obligations are as follows: 1. the debtor's economic condition in general, those who borrow money from banking institutions are middle to lower class. they are generally small and medium entrepreneurs. so that in developing its business it always depends on the prevailing market prices. 2. the debtor's willingness to pay his debts is low. the character or nature of the debtor is very important, this is the key to the potential for non-performing loans if the debtor has a bad character. the accuracy of the bank during the initial verification / survey in the field is needed. 3. collateral value is less than the amount of principal and interest payable. at the time of the assessment of the guarantee by the bank, that the collateral object owned by the debtor is deemed sufficient and feasible. however, in practice it turns out that when the collateral is sold, it is not sufficient to pay http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 201 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia off debts. the credit received by the debtor is not in accordance with the original purpose of the loan/side streaming. from the factors above, basically the debtor does not want collateral or other items to be auctioned by the state receivables and auction service office (kpknl). they still want the collateral not to be sold and they still hope that the payment of their debts can be extended. even though the banks or non-bank financial institutions have made subpoenaes several times to the debtors, they still do not make any achievements on time. if the debtor continues to ignore this matter, the banking institution will submit the matter to the state receivables and auction service office (kpknl). according to article 29 of the minister of finance regulation number 135 /pmk.01/2006, the office of state assets and auction services (kpknl) states that the kpknl is a vertical agency of the directorate general of state assets which is under and directly responsible to the head of the regional office. the task of the state wealth and auction service office (kpknl) according to article 30 of the minister of finance regulation number 135/pmk.01/2006 is to provide services in the field of state assets, assessment of state receivables, based on applicable laws and regulations. the parties related to the auction of collateral objects are: 1. debtor, namely a person who has borrowed money from a creditor but does not carry out his obligations as agreed. 2. creditors are banks or other institutions that have provided money or capital to customers. 3. state receivables and auction affairs agency (bupln). 4. the party or buyer of collateral is a person or entity that has bought or won in the auction of collateral. legal basis of the auction is carried out based on article 6 of the uuht as follows: 1. law no.4 of 1996 concerning mortgage rights to land and objects related to land (uuht) 2. law no. 05 of 1960 concerning basic agrarian regulations (uupa) 3. ri minister of finance regulation no.118 / pmk.07 / 2005 concerning auction hall 4. regulation of the minister of finance of the republic of indonesia number 40 / pmk.07 / 2006 concerning guidelines for auction implementation. execution of mortgages based on law no. 4/1996, collateral can be executed in 3 ways, namely: 1. execution parate, article 6 and article 11 (c) of the mortgage law a. article 6 of the mortgage rights act says parate execution for the sake of law b. article 11 (c) of the mortgage rights act because the parate of execution was agreed. http://creativecommons.org/licenses/by-nc-sa/4.0/ 202 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia parate execution is an execution without litigation and without an executorial title. in law, granting authority for execution parates is based on legal doctrine which, among other things, states that an agreement that is certain or does not contain disputes, such as fixed loans, should be carried out independently by interested parties without court intervention (sutedi, 2012: 130). the first mortgage holder has the right to sell the object of the mortgage on his own power through a public auction and collect his receivables from the sale proceeds. the creditor has the authority to carry out direct execution of objects that become collateral without the intermediary of a judge. according to the general explanation number 9 of the mortgage rights law, one of the characteristics of a strong mortgage is easy and sure to carry out the execution: a. for this reason, the mortgage rights in this law regulates the execution parate institution as referred to in article 224 hir, article 256 rbg; b. in connection with that, the mortgage certificate is affixed with the words: "for the sake of justice based on the one and only godhead", as the foundation of executorial power, which is as strong as a court which has permanent legal force. thus, the institutionalization of execution parates in this law, apart from being regulated in article 6, is also affirmed in the general elucidation. 2. execution by court the mortgage rights law provides for the possibility of carrying out execution through a judicial process. the judicial process takes time and costs. so, in practice what is done is execution through a lawsuit. if a lawsuit occurs in court, the object of collateral will be auctioned off in public and the proceeds will be used to pay off the debtor's debt. 3. guarantee sales on an underhand basis article 20 of the mortgage rights law item (3). underhand sales are sales made not through a public auction. underhand sales will be more profitable for both parties because usually if there is a sale through an auction, the price may go down and the debtor and creditor may suffer losses. in the implementation of the auction, especially the execution auction, the potential for lawsuits is very high. the lawsuit/rebuttal is separately submitted before the auction and after the auction. the claim before the auction is intended by the plaintiff to delay the auction. and the post-auction claims/rebuttals have very various motives behind it (khalim, 2014). lawsuits generally arise when someone is unsatisfied. as a rule of law/rechtstaat, every citizen who feels his rights have been violated, has the right to file a lawsuit/rebuttal to the court as a channel for his violated rights. there are requests for auction postponement and/or resistance submitted by debtors and/or guarantors and/or other third parties during the ongoing guarantee execution process, where requests for postponement and/or resistance submitted by such parties may cause postponement of the guarantee auction. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 203 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the plaintiff is a person/legal entity whose interest in the form of ownership of the auction object has been harmed by the auction, for example: 1. the debtor who is the subject of the case is related to the auction price that is too low, the auction of bad credit is carried out before the due date of the credit agreement, the procedures for implementing the auction are not correct, for example, the auction notification is not timely, the announcement is not in accordance with the procedure and so on. other; 2. the third party owner of the goods is either directly involved in the signing of the credit agreement or purely as guarantor of the debt, the subject of which is basically the same as the debtor, namely the auction price is too low / if the collateral is auctioned off, the auction of bad credit is carried out before it falls credit agreement due date; 3. heirs related to inheritance issues, an illegal guarantee process; 4. one of the parties in the marriage, related to the issue of joint assets, an illegal guarantee process; 5. the auction buyer is related to the auction buyer's right to be able to control the goods that have been purchased / emptied. 6. the defendants include creditor banks, pupn, auction offices, auction buyers, debtors who pledge goods, and other parties related to legal actions contained in the tender requirements documents, among others, the land office that issues certificates, notaries who make the binding. guarantee (sianturi, 2013: 244-245). after the object of the mortgage has been auctioned and has been purchased by the winner of the auction, it turns out that the debtor who gives the mortgage does not want to vacate the object/parcel of the mortgage that has been sold, then vacating the object of the mortgage can be done in the following manner: a. persuasively, that is, by making an approach between the old owner or occupant and the new owner as the winner of the auction, then by providing compensation in the form of compensation, vacating fees, etc. or if it is in a leased condition, by extending or renewing the lease. b. the auction winner as the new owner of the mortgage object has the right to submit a vacant application to the chairman of the local district court, and then upon the existence of the request, the head of the district court makes a decision letter ordering the clerk of the secretary or the bailiff of the district court to vacate the object of the mortgage by way of forced and if necessary the evacuation can be carried out with the assistance of other forces (police if necessary military assistance). in several guarantees law in indonesia, there are provisions which stipulate that a document has the same executorial power as a judge in a civil case which has permanent legal force. however, in reality, the judge or the district court did not treat it that way. the word "equal to" in this law is deemed by the district court judge to be "the same as" if it has passed a court decision or order (sutedi, 2012: 132). http://creativecommons.org/licenses/by-nc-sa/4.0/ 204 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in the auction, many daily events such as limit price fixing, suspension and cancellation of the auction indicate that law enforcement on the execution of mortgage rights has not provided legal certainty. from the auction problems, the lawsuit submitted to the judiciary was based on a lawsuit against the law against the auction. an auction action is contested on the basis of an illegal act because it fulfills the elements as explained by sianturi (2013), as follows: a. the act is against the law b. error (schuld) c. loss (scade) d. there is a causal relationship (oorzakelijk verband) between losses and illegal actions that occur in the auction. one of the needs for auction legal institutions is to fulfill or implement judicial decisions or dispute resolution institutions based on laws in the context of law enforcement. auction creates the value of an item that is the object of a dispute in a judicial decision or collateral that is the object of a dispute based on law, such as the settlement of bad credit by the district court or pupn or a creditor bank. power is given based on law, not voluntarily by the owner of the goods, so that claims often arise from the owner of the goods, both by the debtor who owns the goods and by third parties who own the goods. the law only allows parties whose rights have been impaired by the act of buying and selling an auction which is carried out through the auction office, can defend their rights / interests by submitting a lawsuit to the court, with the hope that the court will give law to the dispute it faces. judges at the trial constrict concrete events, which at the same time mean formulating concrete events, qualifying concrete events and constituting or giving law or punishment (mertokusumo, 1996: 74). settlement of land and building auction disputes for the object of the mortgage rights in general, not every implementation of collateral auction runs as it should be, but in doing so it experiences various obstacles. the obstacles in implementing collateral for the object of the mortgage are as follows: 1. there is no auction enthusiast; 2. the auction of collateral is intended so that the public can buy the collateral, so that by auctioning the object, the debtor can pay off all debts owed to the creditor. however, often there are no auction enthusiasts. the low or no interest in buying this auction is due to: a. collateral is not good (less strategic location, owned by third parties); b. it is very difficult for control of post-auction objects to be emptied; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 205 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia c. the culture in the community to buy auction items is taboo, because they feel uncomfortable with the owner of the collateral, so that it has a negative impact on land use; and d. collateral is in the form of girik, not a certificate 3. collateral belonging to third parties in principle, the collateral that will be guaranteed by the debtor is his property, but it does not rule out that the collateral belongs to a third party. this third party has authorized the installation of guarantees. in conducting the auction, this third party prevents the auction of collateral objects, on the grounds that the debtor has never authorized the debtor to pledge the land. if a power of attorney occurs, then the power of attorney shall be carried out by means of bedrog, dwaling, dwang and unduemflunce. 4. collateral has not been registered in principle, collateral at a banking institution must be registered for collateral. however, in reality many credits are extended to customers without registration. the registration of guarantees of mortgage rights is carried out by the national land agency. 5. the selling value of the collateral object is smaller than the amount owed by the debtor 6. lack of good faith from the debtor 7. the promise of the debtor who gave the mortgage rights to empty the object of the mortgage at the time of execution of the mortgage was not obeyed. 8. the buyer of the execution auction under the sole power of the first mortgage holder receives the minutes of auction from the state auction office but does not receive the title to the land that has been purchased from the auction. as a result, the national land agency refuses to change the name of the original owner of the mortgage giver to the name of the auction buyer. in such a case, the auction buyer submits an application to the head of the state auction office (which conducts the auction) asking him to be given a certificate regarding the reasons for not submitting the certificate, only then the auction buyer with evidence of submitting an application for a name reversal to the competent land agency. a. quote of the auction minutes concerned. b. ownership certificate for apartment units or rights to land and buildings that are auctioned if the land parcel concerned has been registered. or in the event that the certificate is not submitted to the buyer of the auction, the execution of a statement from the head of the auction office regarding the reasons for not submitting the certificate. c. proof of identity of the auction buyer. d. proof of payment of the purchase price. to overcome obstacles and auction disputes, the efforts made by the bank are as follows: http://creativecommons.org/licenses/by-nc-sa/4.0/ 206 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. provide subpoena to debtors continuously with the aim that debtors can carry out their achievements. 2. the auction of collateral is still carried out. 3. awareness to customers. 4. carry out continuous collection against customers. 4. the creditor (bank) will give warnings to the debtor on his credit (summons). this effort was made before taking further legal action. this warrant is very important to confirm that the debtor has actually committed default. 5. the bank submits the matter to the prosecutor's office, under the junior attorney general for civil and administrative affairs. because here the prosecutor does not have the power to decide, in this case the prosecutor only acts like a lawyer for the bank to warn and collect bank receivables from debtors. this is specifically intended for government agencies or banks. 6. by deliberation. a deliberative settlement between creditors and debtors is a method of settlement based on a sense of kinship. the settlement in this way is an attempt by the government bank so that the bad credit can be used properly by the debtor. the deliberative resolution of the problem also depends on the nature of credit congestion, meaning that bad credit is due to deliberate or unintentional factors. if the bank assesses that the credit congestion is caused by unintentional things, usually the bank provides or determines policy steps that can ease the burden on the debtor with the intention that the congestion can be resolved by the debtor, after being given a policy that is pursued through this deliberation. the policy steps taken by the bank in resolving a case by deliberation include: a) providing extension of the credit maturity period. b) giving installment interest relief. c) providing additional credit assistance, for loans with substandard collectiveness, with the hope that the collectability will run smoothly. 7. advise the debtor to sell the collateral themselves. in doing this, if necessary, the bank can assist the debtor by finding potential buyers in such a way that the money from the sale of the collateral is still deposited with the bank to be calculated with the debtor's loan as repayment. 8. make the sale of the collateral in public based on the power to sell. in this case, the bank may request assistance from the state auction office to sell collateral through a public auction, and the proceeds from the sale of the collateral will be calculated for the settlement of receivables from the bank. attempts made by the bank (creditor) within 21 months are declared nonperforming as follows: 1. through the state receivables affairs committee (pupn) the settlement of bad credit at private banks is settled through court channels. as specifically for bad credit at state banks, so far, the collection process has been carried out through the state receivables affairs committee (pupn), which was formed by law number 49 prp 1960, and the state http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 207 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia receivables and auction business entity (bupln), which was formed by presidential decree number 21 of 1991. pupn is tasked with settling state receivables that have been submitted to it by government agencies or state agencies. thus, for state-owned banks to resolve their bad debts, they must be done through the state receivables affairs committee (pupn), in which by the handover of bad debts to the agency legally, the authority over the right to collect is transferred to it. 2. settlement through court channels efforts taken in this regard is by filing a lawsuit to the district court on the basis of default. it is just that the process of resolving civil cases at the district court until there is a permanent and definite court decision (in kracht van gewisde) usually goes through 3 (three) levels of justice, namely: a. the district court as the court of first instance. b. the high court as the court of appeal and, c. supreme court whereas the guarantee agreement is an accesoir of the main agreement, namely the credit agreement. if the debtor is negligent in paying off his loan and if the reprimand is by asking for assistance from the district court, then such warning is called a sommatie or summons (sutedi, 2012: 212). if the debtor has received a warning and then pays the loan in full, the loan execution is no longer needed, on the other hand, if the debtor has been reprimanded, the debtor still does not want to pay the loan, then the creditor or bank starts to execute the guarantee. 3. settlement through the commercial court settlement through the commercial court is an alternative that can be used by creditors against debtors as long as they meet certain requirements stipulated by law no. 37 of 2004 concerning bankruptcy and postponement of debt payment obligations. basically, the process of requesting a bankruptcy statement based on the bankruptcy law consists of stages. the steps stipulated in the bankruptcy law number 37 of 2004, regarding the proceedings at the commercial court, take a long time. whereas the decision making is at the first level, where the judge can only decide on the bankruptcy case within 60 days. the time taken from the commercial court to the cassation is 120 days, and not to mention if the parties are not satisfied who want to file a reconsideration, it takes time. 4. settlement through a forced agency particularly for debtors who have bad intentions and have debts of at least 1,000,000,000 (one billion rupiah), the agency may be subject to force. this is in accordance with the regulation of the supreme court of the republic of indonesia number 1 of 2000 concerning forced institutions. corporate coercion is indirect coercion by placing a debtor with a bad bond into a state detention center determined by the court to force the person concerned to fulfill his obligations. http://creativecommons.org/licenses/by-nc-sa/4.0/ 208 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia according to the author, in the practice of auction dispute resolution, the effective method and carried out by the mortgage holder if it is linked to the prevailing laws and regulations, are: a. the first way, namely through the sale of the object of the mortgage which is done under the hand. b. the second way, namely "the right to sell on their own power" the object of the mortgage. conclusion this research highlighted and finally concluded that the occurrence of disputes is because the debtor is in default so that the bank as the creditor based on the mortgage law number 4 of 1996 submits a request for auction execution to the state wealth and auction service office. for the implementation of the kpknl auction based on the parate for execution of article 6 of the mortgage rights law. uuht no. 4 of 1996, "the right to sell on one's own power" the object of the mortgage. references burgerlijk wetboek stb,1847 nomor 23 (terjemahan r. soebekti dan tjitrosudibio, kitab undang-undang hukum perdata, pt. pradnya paramita, jakarta, 2003) fajar, m., & ahmad, y. (2010). dualisme penelitian hukum normatif dan empiris, cetakan iii. yogyakarta: penerbit pustaka pelajar. guntoro, j., kontesa, e., & sauni, h. (2020). tinjauan yuridis pendaftaran hak tanggungan dalam pelayanan hak tanggungan terintegrasi secara elektronik. bengkoelen justice: jurnal ilmu hukum, 10(2), 212-225. het herziene indonesisch. reglement (hir/rib reglemen indonesia yang diperbaharui) stb, 1941 nomor 4 jayanti, o., & darmawan, a. (2018). pelaksanaan lelang tanah jaminan yang terikat hak tanggungan. kanun jurnal ilmu hukum, 20(3), 457-472. jumhana, m. (2012). hukum perbankan di indonesia. bandung: penerbit cipta aditya. khalim, a. (2014). perbuatan melawan hukum dalam gugatan pelaksanaan lelang di kpknl, 14 april 2014. marzuki, p . m . ( 2 0 1 0 ) . penelitian hukum. jakarta: kencana prenada media grup. mertokusumo, s. (1996). penemuan hukum sebuah pengantar. yogykarta: penerbit liberti. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 209 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia peraturan menteri keuangan nomor 106/pmk.06/2013 tentang perubahan atas peraturan menteri keuangan nomor 93/pmk/06/2010 tentang petunjuk pelaksanaan lelang peraturan menteri keuangan nomor 158/pmk.06/2013 tentang pejabat lelang kelas i peraturan menteri keuangan nomor 159/pmk.06/2013 tentang pejabat lelang kelas ii peraturan menteri keuangan nomor 160/pmk.06/2013 tentang balai lelang. reglement buitengewesten (rbg hukum acara untuk daerah luar jawa dan madura) stb. 1927 nomor 227 salim, h.s. (2004). hukum kontrak teori dan teknik penyusunan kontrak. jakarta: sinar grafika. sianturi, p. t. (2013). perlindungan hukum terhadap pembeli barangjaminan tidak bergerak melalui lelang. bandung: cv. mandar maju. sudjana, s. (2019). pembatasan perlindungan kekayaan intelektual (hak cipta) dalam perspektif hak asasi manusia. jurnal ham, 10(1), 69-83. sutedi, a. (2012). hukum hak tanggungan, cetakan kedua. jakarta: penerbit sinar grafika. undang-undang nomor 10 tahun 1998 tentang perubahan atas undang-undang nomor 7 tahun 1992 tentang perbankan (lembaran negara republik indonesia tahun 1998 nomor 182, tambahan lembaran negara republik indonesia nomor 3790) undang-undang nomor 4 tahun 1996 tentang hak tanggungan atas tanah beserta benda-benda yang berkaitan dengan tanah (lembaran negara republik indonesia tahun 1996 nomor 42, tambahan lembaran negara republik indonesia nomor 3632) vendu instructie (instruksi lelang stbl. 1908 nomor 190) vendu reglement (peraturan lelang stbl. 1908 nomor 189) http://creativecommons.org/licenses/by-nc-sa/4.0/ 210 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this page intentionally left blank http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 403 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 3, july 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: february 28, 2022 revised: may 29, 2022 accepted: june 23, 2022 available online since: july 31, 2022 how to cite: fauzan, ahmad, ayon diniyanto, and abdul hamid. “regulation arrangement through the judicial power: the challenges of adding the authority of the constitutional court and the supreme court”. journal of law and legal reform 3, no. 3 (2022): 403-430. https://doi.org/10.15294/jllr.v3i3.58317. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: review article regulation arrangement through the judicial power: the challenges of adding the authority of the constitutional court and the supreme court ahmad fauzan1 , ayon diniyanto2 , abdul hamid3 1,2,3 uin k.h. abdurrahman wahid pekalongan, indonesia  ahmad.fauzan@iainpekalongan.ac.id abstract disharmony and regulation arrangement is one of the problems in indonesia that has not been completely resolved. efforts have been made by the government and various parties. but in reality, disharmony and regulation arrangement are still a problem in indonesia. there needs to be http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i3.58317 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 mailto:ahmad.fauzan@iainpekalongan.ac.id http://orcid.org/0000-0002-3954-7893 http://orcid.org/0000-0002-3954-7893 http://orcid.org/0000-0002-3954-7893 404 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia an out of the box solution, one of which involves the judicial power to organize regulations. the researchers in this article have two problem formulations, namely (1) how is the arrangement of regulations through judicial power from the theoretical aspect? and (2) how is the arrangement of regulations through the constitutional court and the supreme court to realize a synchronized and harmonious simplification of regulations? first, regulatory arrangements can be made by the judiciary through instruments and processes called judicial review. theoretically, judicial review can be used as an instrument and a process for structuring regulations so that they are synchronous and harmonious. in indonesia, a judicial review has been applied to the authority of the constitutional court and the supreme court. this means that theoretically, regulatory arrangements can be made by the judiciary, in this case the constitutional court and the supreme court. second, the judicial review carried out in the context of structuring regulations must be comprehensive on all types of laws and regulations and systematically tiered. judicial review can also be done horizontally and vertically. the question? which institutions can do? there are two options to choose from. first, it can be done by the constitutional court as a whole. second, it can share the authority of a thorough judicial review between the constitutional court and the supreme court. the difference in distinguishing the overall judicial review authority by the constitutional court and the supreme court lies in the type of legislation. keywords: regulation arrangement, judicial power, judicial review. introduction efforts to regulate regulation have been carried out by the government through various policies. one of the popular and actual policies related to regulatory arrangement is by using the omnibus law or the omnibus method. omnibus law is a method or system for the formation of laws and regulations by combining several different laws and regulations into one http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 405 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia legislation with the result that the old laws do not apply partially or completely1. that is, omnibus law is a regulation that comes from a combination of several regulations with the aim of changing, revoking or cutting other regulations2. easier, it can be said that omnibus law is a law that covers many aspects3. indeed, normatively, omnibus law is capable of structuring regulations with many existing regulations, but regulatory structuring in indonesia through omnibus law has not found a significant impact on simplification and harmonization of regulations. this can be seen from various things, for example the problem of forming an omnibus law that creates pros and cons in society4. in addition, the problem of establishing the omnibus law is related to time, which is relatively long5. not to mention the emergence of many derivative regulations as a consequence of the omnibus law6. indonesia has recently issued a legal product policy in the form of an omnibus law. the omnibus law is law number 11 of 2020 concerning job creation (uu cipatker). uu ciptaker before it was ratified until after it was ratified reaped many pros 1 wicipto setiadi, “simplifikasi regulasi dengan menggunakan metode pendekatan omnibus law,” jurnal rechtsvinding: media pembinaan hukum nasional 9, no. 9 (2020): 45; ayon diniyanto, bambang sri hartono, and heris suhendar, “strategi dan model omnibus law dalam penataan regulasi,” yudisia : jurnal pemikiran hukum dan hukum islam 12, no. 2 (2021): 166, https://doi.org/10.21043/yudisia.v12i2.10162; dani muhtada and ayon diniyanto, “penataan regulasi di indonesia melalui lembaga independen,” pandecta: research law journal 16, no. 2 (2021): 279, https://doi.org/http://dx.doi.org/10.15294/pandecta.v16i2.31866. 2 ayon diniyanto, “omnibus law dan demokrasi kita,” artikel rechtsvinding, 2021. 3 firman freaddy busroh, “konseptualisasi omnibus law dalam menyelesaikan permasalahan regulasi pertanahan,” arena hukum 10, no. 2 (2017): 242, https://doi.org/10.21776/ub.arenahukum.2017.01002.4. 4 i putu eka cakra and aditya yuli sulistyawan, “kompabilitas penerapan konsep omnibus law dalam sistem hukum indonesia,” jurnal crepido 2, no. 2 (2020): 64, https://doi.org/10.14710/crepido.2.2.59-69. 5 dhaniswara k. harjono, “konsep omnibus law ditinjau dari undang-undang no. 12 tahun 2011 tentang pembentukan peraturan perundang-undangan,” jurnal hukum: hukum untuk mengatur dan melindungi masyarakat 6, no. 2 (2020): 99; lenny tristia tambun, “target molor, istana sebut penyusunan omnibus law butuh waktu sinkronisasi,” beritasatu.com, 2020. 6 tsarina maharani, “banyaknya aturan turunan uu cipta kerja dinilai bertentangan dengan tujuan pemerintah,” kompas.com, 2020. http://creativecommons.org/licenses/by-nc-sa/4.0/ 406 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and cons in the community. the process of ratifying the uu ciptaker is also relatively long. not to mention that the problem is that there are many regulations derived from the existence of the uu ciptaker, thus making the purpose of the uu ciptaker, one of which simplifies regulations, in fact creates regulatory obesity under7. this condition causes a horizontal regulatory obsession. obesity horizontal regulation occurs in the hierarchy under the uu ciptaker. this means that there is a failure to simplify regulations horizontally at the level of regulations implementing laws. the failure to simplify regulations indicates that the uu ciptaker has not been able to regulate regulations through horizontal simplification of regulations. this condition also provides a lesson that the executive (government) and legislative institutions (dewan perwakilan rakyat/dpr) have not been able to simplify regulations effectively and comprehensively. as a result, regulation arrangement has not run perfectly, because there is still regulatory obesity. an effective and comprehensive regulatory arrangement is needed. this effort can be done by providing decentralization of authority for regulatory arrangements to the judiciary (the constitutional court/mk and the supreme court/ma). moreover, the two institutions, namely the constitutional court and the supreme court, have the authority to conduct judicial reviews or examinations of statutory regulations. the judicial review authority is actually in line with structuring regulations through simplification by synchronizing and harmonizing regulations. the constitutional court and the supreme court must be given the authority to cancel regulations that are out of sync and are not horizontally harmonized. based on the background of the problem, the formulation of the problem in this article is (1) how is regulation structuring through judicial power from a theoretical aspect? and (2) how is the regulation arrangement through the constitutional court and the supreme court to realize a synchronized and harmonious simplification of regulations? 7 haris prabowo, “omnibus cipta kerja justru bikin regulasi makin gemuk,” tirto.id, 2020. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 407 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia method this research method uses a statutory approach. this means that the study of this research cannot be separated from the study of the legislation. this type of research uses doctrinal research, namely normative juridical. the types of data in this study are primary legal materials and secondary legal materials. the source of data in this study is primary legal material. the primary legal materials in this research are statutory regulations and other legal documents. the next source of legal material is a secondary source of legal material, namely sources that come from articles, books, and others. data analysis in this study was carried out using interactive models8. result & discussion structuring regulations through judicial power is not a new thing. if we look at the history and concept of judicial review, it cannot be separated from the arrangement of regulations. not to mention we have seen the development of judicial power, especially in relation to judicial review. state institutions in the judiciary have developed to have quite strong powers. it is not only adjudicating disputes between citizens or state bodies. the judiciary also has the power to challenge or examine applicable 8 zaka firma aditya and rizkisyabana yulistyaputri, “romantisme sistem hukum di indonesia: kajian atas kontribusi hukum adat dan hukum islam terhadap pembangunan hukum di indonesia,” jurnal rechtsvinding: media pembinaan hukum nasional 8, no. 1 (2019): 37–54, https://doi.org/http://dx.doi.org/10.33331/rechtsvinding.v8i1.305; ayon diniyanto, “reformasi hukum tanah desa: redefinisi dan penguatan kedudukan,” jurnal rechts vinding: media pembinaan hukum nasional 8, no. 3 (2019): 351–65, https://doi.org/10.33331/rechtsvinding.v8i3.331; matthew b. miles and a. michael huberman, an expanded sourcebook qualitative data analysis, sage publications, inc., 2nd ed., vol. 1304 (california: sage publications, inc., 1994); ayon diniyanto and dani muhtada, “the dynamics and future of qanun in the welfare of the people of aceh,” bestuurskunde: journal of governmental studies 2, no. 1 (2022): 34, https://doi.org/10.53013/bestuurskunde.2.1.31-42. http://creativecommons.org/licenses/by-nc-sa/4.0/ 408 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia laws and regulations. this study examines in depth related to the arrangement of regulations through judicial power. first, the researcher examines the arrangement of regulations through judicial power based on a theoretical review of the various literatures collected by the researcher. second, researchers examine regulatory arrangements through two judicial institutions, namely the constitutional court and the supreme court. i. regulatory structuring through judicial power (theoretical review) regulatory arrangements through judicial power may be a foreign matter. but for some people who are concerned about the knowledge of judicial review. structuring regulations through judicial power is possible. judicial power in its development has various powers, including one of them is the power to conduct judicial review. it is not surprising that up to now, many judicial reviews have been found in various judicial powers from various countries. seeing the form of judicial review that is growing up to now, it is very possible for regulation to occur through judicial power. this research in the initial part of the discussion will take pictures related to the arrangement of regulations through judicial power based on a theoretical review. researchers in finding this will divide into two categories, namely (1) regulatory arrangement through judicial review; and (2) regulation arrangement in indonesia through judicial review. a. regulatory arrangement through judicial review regulatory arrangements through judicial power cannot be separated from the theory of judicial review which has developed rapidly to date. we all know that judicial review first appeared when the case between marbury versus madison in 1803 ad john marshall, who was then a judge of the united states supreme court (supreme court) of the united states http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 409 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia canceled the policy of the judiciary act of 1789 because the content of the judiciary act was contrary to the constitution. in fact, there had never been such a thing before. previously, judges only ruled out if there were regulations that contradicted the constitution. long story short, this case became the forerunner of the judicial review we know today9. although there are other studies that judicial review actually existed before the case of marbury versus madison. william michael treanor (2005) in his research entitled judicial review before marbury states that there have been similar cases related to judicial review before the marbury versus madison case. treanor at the end of his writing also stated that the public in the past had considered the marbury versus madison case as the originator of the emergence of a judicial review10. the judicial review that emerged from the case of marbury versus madison in 1803 ad, indicates that the judicial review has been going on for more than two centuries until now. although judicial review has existed for more than two centuries. the existence of judicial review remains strong and continues to develop. the question is what causes judicial review to still exist in various countries and even continue to develop? the answer can be found by knowing and discovering the theory/postulates and the purpose of the judicial review. there are various arguments about judicial review which if accumulated will become a theory about judicial review. this argument, for example, relates to the theory and principles of a written constitution which states that judicial review is attached to every written constitution. this is if it follows the theory and principles in the written constitution which states that any regulation that is contrary to the constitution is considered null and void. the theory has concluded that judicial review is attached to every written constitution. judicial review can be said to be an instrument and process to 9 martitah, sistem pengujian konstitusional (constitutional review) di indonesia (jakarta: konstitusi press, 2015), 32–33, https://doi.org/10.1093/oxfordhb/9780190469771.013.7; jimly asshiddiqie, “sejarah constitutional review dan gagasan pembentukan mahkamah konstitusi,” in the three “e” lecture series, 2012, 2–5. 10 william michael treanor, “judicial review before marbury,” stanford law review 58 (2005): 459–555. http://creativecommons.org/licenses/by-nc-sa/4.0/ 410 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia check the suitability and validity between the laws and regulations with the regulations above them (the constitution). these instruments and processes should be automatically embedded in the constitution as the highest law in a country11. one of the theories of judicial review states that judicial review aims to protect the judicial power from the influence or involvement of the legislative power. the existence of a judicial review gives independence to the judicial power to test legislative products so that it can provide limits on power to the legislature if legislators exceed their authority in forming regulations12. this is indeed very appropriate because there is no guarantee that the legislative power will not abuse its power through the legal products that are formed. the existence of a judicial review provides control over every legal product formed by the legislative power. the independence of judicial power will be created if there is judicial power (strong judicial power). judicial review cannot be separated from judicial power. without judicial power, it is difficult to carry out a judicial review, let alone enforce the constitution through a judicial review mechanism. judicial power is also important so that every decision or result of a judicial review can be obeyed and implemented. it's hard to imagine if there is no judicial power, the results of the judicial review will be easy to ignore13. judicial review aims to protect the judicial power from the influence of other powers. judicial review is also a tool for judicial or judicial powers to enforce the constitution. the enforcement of the constitution is meant to uphold the constitution of the laws and regulations below which are not in line with or not in accordance with the content of the constitution14. this is actually in accordance with the two main principles of judges in deciding 11 william w. van alstyne, “a critical guide to marbury v. madison,” duke law journal 1, no. 1 (1969): 17, https://doi.org/10.4324/9781315053561-16. 12 treanor, “judicial review before marbury.” 13 david s. law, “a theory of judicial power and judicial review,” georgetown law journal 97 (2009): 796. 14 mauro cappelletti, “judicial review in comparative perspective,” california law review 58, no. 5 (1970): 1032, https://doi.org/10.4324/9781315246024-13. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 411 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia two cases. rescoe pound (1923) stated that judges decide cases based on two things. first, the judge's decision must aim to create justice. second, the judge's decision must be based on and to enforce the law15. the theory/postulates and the purpose of the judicial review as described previously provide an accumulation or conclusion about the theory of judicial review. this means that judicial review is an instrument and process of validating regulations in order to uphold the constitution and to control the power of forming regulations from arbitrariness. the validation is meant to check the suitability of the regulatory content material formed by the regulatory body with the material in the constitution. that is the essence or conclusion of the theory and postulate related to judicial review. however, judicial review in addition to requiring judicial power also requires media or containers to run optimally. the media or forum is an institution or agency tasked with conducting a judicial review. in the world there are bodies that function to conduct judicial reviews. the body is generally part of the judicial power. there is a body that handles judicial review and it is combined with handling other types of case resolution. for example, the supreme court in the united states which handles judicial review and also other matters. this means that the judicial review here is accommodated by one body with other types of case resolution. then there is a body specially formed to handle judicial review or commonly referred to as a constitutional court institution. the constitutional judiciary was specifically formed to handle and conduct judicial reviews. the constitutional judiciary cannot be separated from the emergence of judicial review. the constitutional judiciary appeared practically after the practice of judicial review. the history of the emergence of the constitutional court cannot be separated from the role of hans kelsen. hans kelsen was the first founder of the constitutional court. hans kelsen at that time established a constitutional court called verfassungsgerichtshof 15 roscoe pound, “the theory of judicial decision,” harvard law review 36, no. 8 (1923): 940. http://creativecommons.org/licenses/by-nc-sa/4.0/ 412 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia (constitutional court) austria in 1920 ad. constitutional court institutions like this in its development are increasingly mushrooming in existence. many countries in the world have established constitutional courts according to their respective names16. the number of constitutional courts is due to the very important function of the constitutional court. the constitutional court does not only review the content of the regulations. the constitutional judiciary can also function to maintain and guarantee the constitutional rights of citizens17. this urgency has caused many countries to establish a constitutional court. after the reformation and when the constitution was amended, a constitutional court was established, which was named the constitutional court of the republic of indonesia (mkri) or commonly known as the constitutional court (mk)18. however, in terms of authority and practice, the constitutional court does not only handle judicial review cases. there are many types of case settlement handled by the constitutional court other than judicial review, such as deciding on disputes over the authority of state institutions; decide on the dissolution of a political party; decide disputes over general election results19; give a decision related to the opinion of the house of representatives (dpr) regarding alleged violations of the president and/or 16 martitah, sistem pengujian konstitusional (constitutional review) di indonesia; asshiddiqie, “sejarah constitutional review dan gagasan pembentukan mahkamah konstitusi.” 17 i dewa gede palguna, “constitutional complaint and the protection of citizens the constitutional rights,” constitutional review 3, no. 1 (2017): 16, https://doi.org/10.31078/consrev311; i dewa gede palguna, “constitutional question: latar belakang dan praktik di negara lain serta kemungkinan penerapannya di indonesia,” jurnal hukum ius quia iustum 17, no. 1 (2010): 3, https://doi.org/10.20885/iustum.vol17.iss1.art1. 18 martitah, “why legitimacy matters in times of uncertainty: a critical study of the success story of the constitutional court of indonesia,” asia-pacific social science review 19, no. 1 (2019): 233. 19 see the 1945 constitution article 24c paragraph (1) http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 413 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia vice president according to the constitution20; and decide disputes over the results of regional head elections21. b. regulatory structuring in indonesia through judicial review the history of the birth of judicial review and constitutional judicial institutions cannot be separated from the arrangement of regulations by the judiciary. indeed, the form of regulatory arrangement through judicial review is not concrete. in indonesia, which has two judicial institutions with the authority to conduct judicial reviews, namely the constitutional court and the supreme court22. we can see the regulatory arrangements of the two institutions through the judicial review mechanism. the constitutional court has the authority to conduct a judicial review of the types of laws against the 1945 constitution23. the supreme court has the authority to conduct a judicial review of the types of regulations under the law against the law24. 20 see the 1945 constitution article 24c paragraph (2) 21 article 157 paragraph (3) of law number 10 of 2016 concerning the second amendment to law number 1 of 2015 concerning stipulation of government regulations in lieu of law number 1 of 2014 concerning election of governors, regents, and mayors to become laws. 22 simon butt, “judicial reasoning and review in the indonesian supreme court,” asian journal of law and society 6, no. august 2018 (2019): 89, https://doi.org/10.1017/als.2018.26; pan mohamad faiz, “legal problems of dualism of judicial review system in indonesia,” jurnal dinamika hukum 16, no. 2 (2016): 189– 90, https://doi.org/10.20884/1.jdh.2016.16.2.535; hamid chalid, “dualism of judicial review in indonesia: problems and solutions,” indonesia law review 7, no. 3 (2017): 376–77. 23 see at the authority of the constitutional court in the 1945 constitution article 24c paragraph (1) which basically states that one of the powers of the constitutional court is to adjudicate at the first and last level whose decisions are final in order to examine the law against the constitution. 24 simon butt, “the indonesian constitutional court: reconfiguring decentralization for better or worse?,” asian journal of comparative law 14, no. 1 (2019): 156, https://doi.org/10.1017/asjcl.2018.19. see also article 9 paragraph (2) of law number 12 of 2011 concerning the establishment of legislation which basically states that the supreme court has the authority to examine statutory regulations under the law against the law. http://creativecommons.org/licenses/by-nc-sa/4.0/ 414 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the form of regulatory arrangement through judicial review can be seen in the process and output. the judicial review process is to examine the content material or the formation of regulations against the content material in a higher regulation. we can see the process of structuring regulations from the judicial review. first, let's look at the arrangement of regulations through a material judicial review. we see how a charge material is tested against a charged material in a higher order. here there is a process of structuring the regulation between the charge material (regulation) below and the charge material (regulation) above. the content material (regulation) below will follow and not conflict with the content material (regulation) above. this means that there is a vertical synchronization and harmonization of regulatory content material. this process is known as regulatory structuring through judicial review in a material manner. likewise with the judicial review in a formal test judicial review on a formal basis can also arrange regulations. this can be seen from the formal test process for the formation of regulations. the formation of regulations that are not carried out in accordance with the provisions can be canceled through a formal test. this means that regulations can be canceled not only if there is material that contradicts the above rules, but also if the process of forming regulations is found that is not in accordance with the provisions. the judicial review process through a formal test can regulate regulations, especially those related to regulations that are formed that are not in accordance with applicable regulations. that is the judicial review process with a material test and a formal test in structuring regulations. then if you look at the output (results) of the material test and formal test, it is very clear. that the content material or regulations that are tested materially and formally if it is declared contrary to the provisions of the above regulations or the provisions of the formation of regulations, then automatically the material or regulations being tested are declared invalid. content or regulation material that is declared invalid will automatically negate any conflicting content or regulation material. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 415 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia ii. regulations arrangement through the constitutional court and the supreme court to realize synchronous and harmonious regulatory simplification it has been explained previously that regulatory arrangements can be carried out by the judiciary, namely through judicial review. unfortunately, the judicial review is only limited to examining content material that is contrary to the above regulations for material review and testing the process of forming regulations that are contrary to the provisions that apply to formal tests. this means that the process of structuring regulations through judicial review is only limited to a vertical arrangement (from top to bottom). it is also still limited, namely between the law against the constitution and the regulations under the law against the law. for example, regional regulations that conflict with government regulations or presidential regulations. there is no material testing mechanism yet. this is because the supreme court only examines the legislation under the law against the law. not local regulations against government regulations or presidential regulations. this is actually a problem of structuring regulations vertically which is difficult to solve. it is not surprising that the impact is not only disharmony in regulations between the central government and the regions, but also disharmony in the relationship between the central government and the regions. this reality also indicates that regulatory structuring through judicial review can only be carried out vertically, but not comprehensively. synchronization and harmonization of regulations through judicial review that is currently taking place in indonesia can only be carried out in a limited vertical manner. in fact, the main problem in structuring regulations is not only the synchronization and harmonization of regulations vertically. another major problem of regulatory arrangement is also related to horizontal synchronization and harmonization of http://creativecommons.org/licenses/by-nc-sa/4.0/ 416 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia regulations (parallel regulations). for example, the problem of many overlapping laws. not to mention the problem of the many laws and regulations under the law that overlap horizontally or vertically25. extra ordinary solutions are needed for regulatory arrangements. the researcher in principle proposes that regulatory arrangements are not only carried out by the executive power (government) and legislative power (parliament) only. the researcher proposes that regulatory arrangements also need to be carried out by the judiciary (judgment). there needs to be involvement of the role of the judiciary in structuring regulations. regulatory arrangements through judicial power can be carried out using a judicial review model. as mentioned earlier, that judicial review functions in addition to controlling the power of forming regulations. judicial review can also arrange regulations through content material. conflicting or overlapping content can be resolved by judicial review. there are two options for regulatory structuring solutions through judicial power. first, the arrangement of regulations is carried out in its entirety through a judicial review by the constitutional court. second, regulation arrangement is carried out through judicial review with division between the constitutional court and the supreme court. a. comprehensive regulatory arrangement through the constitutional court the overall arrangement of regulations by the constitutional court means that the constitutional court has the authority to conduct a judicial review of all materials of legislation in a comprehensive vertical and horizontal manner. this is because the function of the constitutional court is to 25 dani muhtada and ayon diniyanto, “harmonisasi peraturan daerah: tantangan dan strategi di era otonomi daerah,” in konferensi nasional hukum tata negara (knhtn) ke 4 “penataan regulasi di indonesia” (jember: upt penerbitan universitas jember, 2017); ayon diniyanto, “peraturan daerah dana cadangan,” jurnal legislasi indonesia 18, no. 4 (2021): 478–91, https://doi.org/https://doi.org/10.54629/jli.v18i4.803; dani muhtada and ayon diniyanto, “penguatan peran bpip dan strategi membumikan pancasila untuk melindungi kelompok minoritas,” pancasila: jurnal keindonesiaan 01, no. 01 (2021): 111–21. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 417 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia enforce and protect the constitution through judicial review. it is really ideal if the arrangement of regulations vertically and horizontally is carried out by the constitutional court. all types of laws and regulations can be judicially reviewed by the constitutional court horizontally and or vertically. horizontal judicial review means a judicial review between types of laws and regulations of the same or equal position. for example: (1) law x against law y; (2) government regulation x against government regulation y; (3) regional regulation x in region a against regional regulation y in region a. if you look at the types and hierarchy of laws and regulations26 the horizontal judicial review can be seen in table 1. table 1. horisontal for example, the types of laws and regulations that can be done by judicial review horizontally no type with type 1 decree of the people's consultative assembly (ketetapan mpr) with decree of the people's consultative assembly (ketetapan mpr) 2 law (undang-undang) with law (undang-undang) 3 government regulations (peraturan pemerintah) with government regulations (peraturan pemerintah) 4 presidential decree (peraturan presiden) with presidential decree (peraturan presiden) 5 provincial regulations (peraturan daerah provinsi) with provincial regulations (peraturan daerah provinsi) (the same province) 6 regency/city regional regulations (peraturan daerah kabupaten/kota) with regency/city regional regulations (peraturan daerah kabupaten/kota) (the same regency/city) 7 other laws and regulations with other laws and regulations (equal position) as for the judicial review vertically, it is a thorough examination of the laws and regulations with the laws and regulations above them. vertical 26 see article 7 paragraph (1) of law number 12 of 2011 concerning the establishment of legislation. http://creativecommons.org/licenses/by-nc-sa/4.0/ 418 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia here must be guided by the type and hierarchy of laws and regulations that have been established27. example, (1) ketetapan majelis permusyawaratan rakyat with undang-undang dasar 1945; (2) undang-undang with undang-undang dasar 1945; (3) undang-undang with ketetapan majelis permusywaratan rakyat; (4) other laws and regulations under law with undang-undang; (5) peraturan presiden with peraturan pemerintah; (6) peraturan daerah provinsi with peraturan pemerintah; (7) peraturan daerah provinsi with peraturan presiden; (8) peraturan daerah kabupaten/kota with peraturan pemerintah; (9) peraturan daerah kabupaten/kota with peraturan daerah presiden; (10) peraturan daerah kabupaten/kota with peraturan daerah provinsi and others. for more details, please see table 2. table 2. examples of types of legislation that can be conducted vertical judicial review no type (bottom) with type (top) 1 ketetapan majelis permusyawaratan rakyat with constitution (undang-undang dasar 1945) 2 undang-undang with undang-undang dasar 1945 3 undang-undang with ketetapan majelis permusyawaratan rakyat 4 other laws and regulations under law with undangundang with undang-undang 5 peraturan presiden with peraturan pemerintah 6 peraturan daerah provinsi with peraturan pemerintah 7 peraturan daerah provinsi with peraturan presiden 8 peraturan daerah kabupaten/kota with peraturan pemerintah 9 peraturan daerah kabupaten/kota with peraturan presiden 10 peraturan daerah kabupaten/kota with peraturan daerah provinsi 11 other laws and regulations with the laws and regulations above 27 refer to article 7 paragraph (1) of law number 12 of 2011 concerning the establishment of legislation which regulates related to the types and hierarchy of laws and regulations. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 419 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this example is a strategy for structuring regulations through a vertical judicial review. so far, judicial review vertically is only limited to two, namely: (1) undang-undang with undang-undang dasar 1945; and (2) other laws and regulations under law with undang-undang with undang-undang. there is no systematic judicial review mechanism between the regulations below and the above regulations. ideally, every statutory regulation can be subject to a judicial review with the legislation above it. it is not limited to statutory regulations. if there are restrictions like the current situation. the fundamental question is why is there a hierarchy of laws and regulations? the hierarchy of laws and regulations is a level that indicates a different position in each type of legislation. it is in line with the theory of hierarchy of norms from hans kelsen and stufentheorie (stufen theory) from hans nawiasky. the two theories in principle state that the norms or statutory regulations below are derivatives of the norms or statutory regulations above. therefore, the norms or laws and regulations below must not conflict with the norms or laws and regulations above28. based on this theory, why is there a hierarchy of norms or a hierarchy of laws and regulations? if there is no mechanism or instrument to check and ensure that the norms or laws and regulations below do not conflict with the laws and regulations above? at present, indonesia clearly has not implemented a regulatory review mechanism based on these two theories. for example, provincial regulations which cannot yet be subject to a judicial review of presidential regulations. whereas in the hierarchy of laws and regulations in indonesia. regional regulations are under the presidential regulation. if you look at the two theories that have been 28 hans kelsen, general theory of law and state (cambridge, massachusetts: harvard university press, 1949); hans kelsen, pure theory of law (berkeley and los angeles: university of california press, 1967); jimly asshiddiqie and m. ali safa’at, teori hans kelsen tentang hukum, pertama (jakarta: sekretariat jenderal & kepaniteraan mahkamah konstitusi ri, 2006), 170–71; ayon diniyanto, perlindungan dan penguatan komunitas minoritas: kajian terhadap eksistensi komunitas islam aboge (pekalongan: scientist publishing, 2021). http://creativecommons.org/licenses/by-nc-sa/4.0/ 420 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia mentioned previously, then the provincial regulations should be subject to a judicial review of the presidential regulations. likewise with regency/city regional regulations which may be subject to judicial review of provincial regional regulations. more clearly see again in table 2. in the future, every statutory regulation should be subject to a judicial review with the above statutory regulations systematically, not limited as it is now. this is to ensure that there is a comprehensive vertical synchronization and harmonization between laws and regulations. therefore, there needs to be an alternative solution in structuring regulations through judicial review and there is also a need for reform of the judicial review system in indonesia. the researcher proposes that judicial review be carried out both horizontally and thoroughly vertically in the constitutional court. this is part of structuring regulations through a judicial review that is systemized under one roof. it is indeed quite difficult for the constitutional court to handle judicial reviews horizontally and vertically on all existing laws and regulations. moreover, in the constitutional court there are only 9 (nine) constitutional judges. this condition is certainly difficult if all judicial reviews must be completed by the constitutional court. unless there is a breakthrough to increase the human resources (judges) of the constitution. the shortage of judges in the constitutional court is not easily resolved by suddenly increasing the number of judges. this is because they must first adjust the trial system at the constitutional court. these deficiencies or weaknesses can actually be covered by taking advantage of existing conditions. as previously mentioned by the researcher. that there are two solutions in structuring regulations through judicial power. the first can be done by the constitutional court itself. second, there is a division of roles in structuring regulations between the constitutional court and the supreme court as is currently happening. the only difference is that there are additional roles for the two institutions in conducting judicial reviews, namely horizontal judicial review and vertical judicial review. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 421 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b. regulatory arrangement through the constitutional court and the supreme court the second solution to structuring regulations through judicial power is by decentralizing regulatory arrangements to existing institutions. in indonesia, there are two institutions in the judiciary that are capable of structuring regulations. the two institutions previously mentioned are the constitutional court. then the institution that also has judicial review authority is the supreme court. the two institutions both have the authority to conduct a judicial review as previously reviewed. this means that these two institutions have the potential to carry out regulatory arrangements through judicial review. the only question is what is the model for structuring regulations at the constitutional court and the supreme court through judicial review? (1) is it done with the current model with limited judicial review? or (2) whether to adopt the first solution, namely a thorough judicial review? or (3) does it create a limited decentralization of regulatory arrangements for each institution? the first question is, of course, less effective in structuring regulations like the current one. as mentioned earlier, the first question will stop at horizontally disharmony regulations. the second question is also difficult to realize because the overall arrangement of regulations means whether it will be submitted to the constitutional court or to the supreme court. this condition will certainly be less effective considering the shortcomings previously mentioned, if the arrangement of regulations through judicial review is submitted to one institution. the third question may be the answer to the second solution in structuring regulations by the judiciary through judicial review. if the constitutional court is still experiencing shortages if the arrangement of regulations through judicial review is submitted to the constitutional court. the solution that can be developed is to decentralize the judicial review authority to the supreme court. decentralization is certainly limited, not all, so that the constitutional court and the supreme court also have the power to regulate regulations http://creativecommons.org/licenses/by-nc-sa/4.0/ 422 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia through limited judicial review. the question is what is the difference with the regulation arrangement through limited judicial review currently or which has been running? currently, judicial review is limited to vertically limited judicial review. the solution offered by the researcher is limited, namely dividing the first solution to be carried out by two institutions, namely the constitutional court and the supreme court. in the first solution, regulation arrangement through a thorough judicial review is carried out by the constitutional court. the second solution is to arrange regulations through a thorough judicial review carried out by the supreme court and the constitutional court. in short, it is not a limitation related to judicial review, but a limitation on institutions conducting judicial reviews. a. limited regulatory arrangement through the constitutional court limited regulatory arrangements through the constitutional court, namely limiting the authority of the constitutional court in conducting judicial reviews of the types of laws and regulations. if in the previous solution, the constitutional court has the authority to conduct a judicial review of all types of laws and regulations vertically and horizontally. in this second solution, the constitutional court only has the authority to carry out a limited judicial review on the types of legislation, namely decrees of the people's consultative assembly and laws. the constitutional court has limited authority to conduct a judicial review of the two types of laws and regulations horizontally and vertically. this means that the constitutional court has the authority to examine (1) ketetapan majelis permusyawaratan rakyat with ketetapan majelis permusyawaratan rakyat; (2) undang-undang with undang-undang. (3) ketetapan majelis permusyawaratan rakyat with undang-undang dasar 1945; (4) undang-undang with undang-undang dasar 1945; dan (5) undang-undang with ketetapan majelis permusyawaratan rakyat. more clearly see in table 3. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 423 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia table 3. examples of types of legislations that can be conducted horizontally and vertically by limited judicial review by the constitutional court no type with type horizontal 1 ketetapan majelis permusyawaratan rakyat with ketetapan majelis permusyawaratan rakyat 2 undang-undang with undang-undang vertical 3 ketetapan majelis permusyawaratan rakyat with undang-undang dasar 1945 4 undang-undang with undang-undang dasar 1945 5 undang-undang with ketetapan majelis permusyawaratan rakyat the authority of the constitutional court to conduct limited judicial review as shown in table 3 is expected to be able to make regulatory arrangements through judicial review more effective. the model also does not burden the constitutional court compared to the burden in the first solution. the constitutional court is expected to be able to conduct a judicial review to harmonize regulations horizontally and vertically. b. limited regulatory arrangements through the supreme court the supreme court also did the same. so far, the supreme court has had the authority to conduct a judicial review. the authority of the supreme court is to conduct a judicial review of the legislation under the law against the law. this authority is of course limited to vertical judicial review. the limitation referred to is a judicial review of all types of statutory regulations under the law against the law. there has been no systematic tiered judicial review between the regulations below and the regulations above. that is what is called a vertically limited judicial review. then there is also no horizontal judicial review authority. therefore, the researcher proposes to increase the authority of the supreme court to conduct judicial review of laws and regulations horizontally and vertically. but the authority is limited to the type of legislation under the law. this means that the supreme court can only conduct a judicial review for: (1) http://creativecommons.org/licenses/by-nc-sa/4.0/ 424 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia peraturan pemerintah with peraturan pemerintah; (2) peraturan presiden with peraturan presiden; (3) peraturan daerah provinsi with peraturan daerah provinsi (the same province); (4) peraturan daerah daerah kabupaten terhadap peraturan daerah kabupaten/kota (the same regency/city); (5) other statutory regulations with other statutory regulations that are equal in position; (6) regulation under the undangundang with undang-undang; (7) peraturan presiden with peraturan pemerintah; (8) peraturan daerah provinsi with peraturan pemerintah; (9) peraturan daerah provinsi with peraturan presiden; (10) peraturan daerah kabupaten/kota with peraturan pemerintah; (11) peraturan daerah kabupaten/kota with peraturan presiden; (12) peraturan daerah kabupaten/kota with peraturan daerah provinsi; dan (13) other statutory regulations with the above statutory regulations. more clearly see in table 4. table 4. examples of types of legislation that can be conducted by the supreme court limited judicial review horizontally and vertically no type with type horizontal 1 peraturan pemerintah with peraturan pemerintah 2 peraturan presiden with peraturan presiden 3 peraturan daerah provinsi with peraturan daerah provinsi ((the same province) 4 peraturan daerah kabupate/kota with peraturan daerah kabupaten/kota (the same regency/city) 5 other laws and regulations with other laws and regulations (at the same level) vertical 6 regulation under the undang-undang with undang-undang 7 peraturan presiden with peraturan pemerintah 8 peraturan daerah provinsi with peraturan pemerintah 9 peraturan daerah provinsi with peraturan presiden 10 peraturan daerah kabupaten/kota with peraturan pemerintah 11 peraturan daerah kabupaten/kota with peraturan presiden http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 425 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 12 peraturan daerah kabupaten/kota with peraturan daerah provinsi 13 other statutory regulations with the above statutory regulations the addition of authority to the supreme court as shown in table 4 is a breakthrough in the context of structuring regulations through judicial power. the supreme court, of course, together with the constitutional court are expected to be able to play a role in solving the nation's problems, one of which is the problem of disharmony and regulation arrangement. this problem is a serious problem if it has to be solved by the regulatory institutions in indonesia, namely the government and the house of representatives (dpr). it requires cooperation and roles from all branches of power, including the judicial branch. it also takes the role of all elements of the institution including the constitutional court and the supreme court in order to organize regulations in indonesia so that they are synchronized and harmonious. solving the problem of disharmony and structuring regulations will certainly have an impact on synchronous and harmonious regulations. the broad impact will be the creation of quality, streamlined laws and regulations that are able to realize justice and the welfare of the community. it is hoped that with the solutions that have been formulated and described by the researchers, they will be able to contribute in solving the problems of disharmony and regulation, so as to be able to make indonesia a state of law with quality rules, democracy, and to realize justice and the welfare of the indonesian people29. conclusion 29 dani muhtada and ayon diniyanto, dasar-dasar ilmu negara (semarang: bpfh unnes, 2018); ayon diniyanto, “indonesian’s pillars democracy: how this country survives,” journal of indonesian ilegal studies 1, no. 01 (2016): 105–14, https://doi.org/https://doi.org/10.15294/jils.v1i01.16572; ayon diniyanto, “tindak pidana pemilu dalam perspektif negara demokrasi indonesia,” in seminar nasional hukum universitas negeri semarang, vol. 4, 2018, 422–29. http://creativecommons.org/licenses/by-nc-sa/4.0/ 426 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the problem of disharmony and regulation arrangement is one of the big and acute problems faced by indonesia. there needs to be a solution that breaks down and out of the box in solving the problem. the researcher proposes to involve the judiciary in solving the problem of disharmony and regulatory arrangement in indonesia. is it possible? the researcher answered this question perhaps by looking at the model of regulatory arrangement through judicial power based on a theoretical review. there are two things that the researchers managed to find related to the arrangement of regulations through judicial power based on a theoretical review. first, regulation arrangement through judicial review. based on the academic literature that the researcher has studied, the researcher concludes that judicial review is an instrument and a process for structuring regulations. second, regulation arrangement through judicial review in indonesia. that is, it turns out that indonesia has adopted and implemented judicial review through two judicial institutions, namely the constitutional court and the supreme court. this means that a judicial review is very likely to be carried out for structuring regulations in indonesia. the next question is how does a judicial review organize regulations through judicial powers, in this case the constitutional court and the supreme court? the researcher also succeeded in finding the answer to this question. first, the arrangement of regulations through the constitutional court as a whole. give authority to the constitutional court to carry out a comprehensive regulatory arrangement. this authority is to give the constitutional court the authority to conduct a horizontal and vertical judicial review of all types of laws and regulations in indonesia. second, if the arrangement of regulations through the constitutional court as a whole is considered burdensome to the constitutional court, then there needs to be decentralization to the supreme court. this means that the supreme court is involved in structuring regulations through horizontal and vertical judicial review. it's just that there must be a clear division regarding the types of laws and regulations that can be judicially reviewed by the constitutional court or the supreme court. if these http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 427 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia solutions are 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program, master of laws, faculty of law, universitas negeri semarang, indonesia pendekatan omnibus law.” jurnal rechtsvinding: media pembinaan hukum nasional 9, no. 9 (2020): 39–52. tambun, lenny tristia. “target molor, istana sebut penyusunan omnibus law butuh waktu sinkronisasi.” beritasatu.com, 2020. treanor, william michael. “judicial review before marbury.” stanford law review 58 (2005): 455–562. acknowledgment none funding information the writing of this article was independently funded by the authors conflicting interest statement the authors have no conflict of interest with the journal. publishing ethical and originality statement the writing of this article has included appropriate reference sources. this article is also an original article written by the authors. about author(s) ahmad fauzan, lecturer at the faculty of sharia, universitas islam negeri k.h. abdurrahman wahid pekalongan. ayon diniyanto, lecturer at the faculty of sharia, universitas islam negeri k.h. abdurrahman wahid pekalongan. abdul hamid, lecturer at the faculty of sharia, universitas islam negeri k.h. abdurrahman wahid pekalongan. http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23d02962a637 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare attention required! | cloudflare please enable cookies. 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3, july 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: february 22, 2022 revised: may 27, 2022 accepted: june 24, 2022 available online since: july 31, 2022 how to cite: suci, ratu triani ayune wulan. “law enforcement on management of limestone mining without permits according to law number 3 of 2020 concerning mineral and coal mining”. journal of law and legal reform 3, no. 3 (2022): 379-402. https://doi.org/10.15294/jllr.v3i3.56286. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: review article law enforcement on management of limestone mining without permits according to law number 3 of 2020 concerning mineral and coal mining ratu triani ayune wulan suci kantor advokat sriwijaya (eko haryanto, s.h) jl. solo no.2, randusari, kota semarang, 50244, indonesia  ratutriani803@gmail.com abstract one of the impacts of strengthening the election supervisory body (bawaslu)’s authorityfrom the central level to regency/city level in http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i3.56286 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 http://orcid.org/0000-0002-3954-7893 380 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia handling election administrative violations is to guarantee thecertainty of law for the justice seekers. this is based on the authority to examine and decide on allegations of handling election administrative violations. the authority to handle this violation is based on the article 461 paragraph (1) of law number 7 of 2017 about election. bythe authority, bawaslu is a semi-judicial or quasi-judicial institution. the output of the handling is in the form of verdict such as court verdict in general which have final and binding power and have execution force for the ranks of the elections commission (kpu). this executive power can be seen in verdict that can be directly executed without having to wait or require approval from the kpu through the issuance of verdict. as a final verdict, the verdict of bawaslu, provincial bawaslu and regency/city bawaslu also have constitutive and condemnatory characteristic nature. with these characteristics, the purpose of issuing a bawaslu verdict is to be finalizing administrative violation caseof the election. however, at the practical level, the nature of the final and binding does not apply to provincial bawaslu and regency/city bawaslu. this can be seen in the existence of legal remedies against the verdict through a request for correction to the ri bawaslu (central). keywords: verdict, election administrative violations, final and binding, quasi-judicial. introduction indonesia is a country rich in minerals (mining). the minerals include gold, silver, copper, oil and natural gas, coal, and others. the 1945 constitution article 33 paragraph (3) stipulates that the wealth of natural resources found in indonesia, including the earth, water and natural resources contained therein are assets controlled by the state and used for the greatest prosperity of the people. one of the natural resources owned by indonesia is found in limestone mining minerals. the limestone mining sector is a non-renewable natural resource and has an important role in http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 381 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia meeting the needs of many people, so its management must be controlled by the state to provide real added value to the national economy in an effort to achieve prosperity and welfare of the people in a just manner.1 mineral resources are one of the natural resources owned by the indonesian people, if managed properly it will contribute to the country's economic development, namely by utilizing natural resources by carrying out mining activities. mining is one of the efforts to develop natural resources that have the potential to be used efficiently and optimally for the interests and prosperity of the people, through a series of exploration activities, entrepreneurs, and utilization of mining products. in indonesia, regulations regarding mineral and coal mining are regulated in law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning mineral and coal mining. in article 1 paragraph (1) it is explained that mining is one or part of all stages of activities in the context of research, management and exploitation of minerals or coal which includes general investigation, exploration, feasibility studies, construction, mining, processing and refining, transportation and sales. and post-mining activities. in other words, mining is a series of efforts to search for mining/excavation, processing, utilization and sale of minerals (minerals, coal, geothermal, oil and gas.2 limestone mining or commonly referred to as limestone has many uses, namely as an industrial mineral that is widely used by the industrial or construction and agricultural sectors, including for building materials, building stones, road stabilizing materials, liming for agriculture and others. . limestone mining activities are activities carried out in various stages, including including initial checks where the mine owner ensures whether the moor can be used as mining or not. after that the moor must be cleaned and then mining activities can begin. when the mining activity 1 imamulhadi. 2017. ikhtisar ilmu hukum. yogyakarta: k-media, hlm. 4. 2 salim hs. 2014. hukum pertambangan mineral dan batubara. jakarta: sinar grafika, hlm. 24. http://creativecommons.org/licenses/by-nc-sa/4.0/ 382 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia is over, the owner will usually bury the former mining site using soil again so that it can be used as mooring again.3 the right of state supervision which contains the authority to regulate, manage and supervise the management or exploitation of minerals and contains the obligation to use them for the greatest prosperity of the people. control by the state is held by the government.4 likewise with iup (mining business permit) for minerals such as limestone mining, the authority for these permits has been transferred to the central government. business entities, cooperatives and individuals conducting mining businesses are required to meet administrative requirements, technical requirements, environmental requirements and financial requirements. the minerba law is a tool to regulate mineral and coal mining from upstream to downstream and its various permits. with the aim that the state obtains large profits from mining results and can be used for the welfare of the people. law number 4 of 2009 in conjunction with law number 3 of 2020 adheres to the ultimum remedium understanding. so, it’s not surprising that the sanctions imposed tend to be in the form of administrative sanctions rather than criminal sanctions. the violations of the minerba law that have occurred were committed by pt. stanindo inti perkasa (sip) in bangka belitung. the company operates in tin mining using production suction vessels without a permit. the place of operation is right in the sand beach tourist area. the existence of mining cases in indonesian territory that does not have an iup (mining business permit) can have an impact on the environment such as landslides, subsidence, flooding, infertile soils, rivers dry up so that it will cause losses to the people, nation and state. law enforcement against criminal acts without this permit must be carried out for the sake of social justice for all indonesian people. and the latest 3 risa nur’aini, suparman aw, dan nurudin hadi. 2019. dampak penambangan batu kapur terhadap kesejahteraan masyarakat pekerja tambang di desa leranwetan kecamatan palang, kabupaten tuban. skripsi pendidikan pancasila dan kewarganegaraan: universitas negeri malang, hlm. 15-17. 4 siti maimunnah. 2012. negara tambang dan masyarakat adat. malang: intrans publishing, hlm. 9. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 383 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia minerba law is needed for the benefit of the indonesian nation and state. the number of mining areas in indonesia is quite large, so the existence of this minerba law is supposed to encourage the down streaming of mining products that are used as a steppingstone for re-industrialization.5 therefore, this study aims to analyze on how the management of limestone mining permits in terms of law number 3 of is 2020 concerning mining and coal mining and how is law enforcement against limestone mining without a permit in terms of law number 3 of 2020 concerning minerba mining. method this study uses legal research with a normative juridical approach based on the literature on principles, systematics, and levels of synchronization. furthermore, the research specification in this paper is in the form of analytical descriptive, which is a complete description of a situation in order to obtain data on the relationship between symptoms and analyze its relationship to statutory regulations, relevant legal theory, and legal application practices related to the problems in this paper.6 result & discussion i. management of limestone mining permits in review of law number 3 of 2020 concerning minerba mining limestone is a rock consisting of calcium carbonate, formed directly from seawater precipitation as a result of biochemical processes. limestone is 5 ahmad khoirul umam. 2021. kuasa oligarki atas minerba indonesia: analisis pasca pengesahan uu no. 3 tahun 2020 tentang pertambangan minerba. jakarta: universitas paramadina, hlm. 10-11. 6 soerjono soekanto. 1986. pengantar penelitian hukum. jakarta: ui press, hlm. 96. http://creativecommons.org/licenses/by-nc-sa/4.0/ 384 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia one of the industrial minerals that is widely used in the industrial or construction and agricultural sectors, among others, for building materials, building stones, road stabilizing materials. highway, liming for agriculture, and others. limestone can occur in several ways, namely organically, mechanically or chemically. most of the limestone found in nature occurs organically, this type comes from the deposition of shells/houses of shells and snails, foraminifera or algae or comes from the skeletons of corals/shellfish. limestone can be milky white, light gray, light gray, brown and even black depending on the presence of mineral impurities.7 mining is part or all of the stages of activities in the context of research, management and exploitation of minerals or coal which include general investigation, exploration, feasibility studies, construction, mining, processing and refining, transportation and sales as well as post-mining activities.8 mining is carried out based on a mining authorization, namely the authority given to an entity or individual to carry out a mining business. mining authorization is granted by decree of the minister of mines and energy. mining businesses are grouped into mineral mining and coal mining. mineral mining is the mining of a collection of minerals in the form of ore or rock, excluding geothermal, oil, natural gas, and groundwater. meanwhile, coal mining is the mining of carbon deposits found in the earth, including solid bitumen, peat, and asphalt rock. the business purpose of mining is to process minerals that are in the earth so that they can be used to process minerals that are in the earth so that they can be used and utilized by all human beings to carry out their lives in order to achieve prosperity and prosperity. mining has a very close relationship with the environment, because every mining business, whether it is related to general mining or oil and 7 anonim. 2000. spesifikasi kalsium karbonat untuk pelapis kertas (paper coating). probolinggo: pt. kertas leces, hlm. 12. 8 pasal 1 angka 1 undang-undang nomor 3 tahun 2020 tentang perubahan atas undang-undang nomor 4 tahun 2009 tentang pertambangan mineral dan batubara. lembar negara tahun 2020 nomor 3. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 385 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia gas mining, is obliged to maintain the continuity of the carrying capacity and capacity of the environment. utilization of excavated or mining materials has been regulated in law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning mineral and coal mining. the legal basis is one of the main guidelines for the government and society in utilizing natural resources, especially in the limestone mining sector. not only as a legal basis, but also as a movement for the management, protection and allocation of results from the utilization of natural resources that are taken advantage of. it is undeniable that the potential for limestone mining has a positive impact on both the community and the country, especially on economic growth. but it can also have a negative impact on environmental damage. limestone area is an area that is easily damaged and has very little resilience so that such conditions require the area to be planned very carefully so that environmental damage due to deep limestone mining is minimized.9 utilization of natural resources and the environment for benefits, such as limestone mining, is an activity that utilizes the environment so that the government issued regulations regarding the mineral and coal mining law in law number 3 of 2020 and law number 32 of 2009 concerning protection and management environment. the most important thing in law number 32 of 2009 is that every mining business is required to have a permit in the form of a mining business permit (iup. in addition, the procedures for the utilization of mining resources have also been regulated in it. the procedure for issuing an iup is carried out by the party or official who is authorized in his/her field. the first condition that must be met to obtain an iup is to have an environmental permit. an environmental permit is granted to every business whose utilization is required to have an amdal or ukl-upl, as regulated in article 1 number 35 of law number 32 of 2009, which explains that: 9 m. abdul gofur dan i gede astra wesnawa. 2018. dampak ekoogi penambangan batu kapur sebagai bahan dasar pembuatan semen di gunung sadeng kecamatan puger, kabupaten jember. jurnal pendidikan geografi undiksha, vol. 6, no. 3, pp. 163174, hlm. 166. http://creativecommons.org/licenses/by-nc-sa/4.0/ 386 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia environmental permit is a permit that is given to every person who carries out a business and/or activity for which amdal and ukl-upl are required in the context of environmental protection and management as a prerequisite for obtaining a business and/or activity permit.10 law number 3 of 2020 concerning mineral and coal mining explains that what is meant by a mining business permit or what is called an iup is a permit to carry out mining. mining business permits are granted by the regent/mayor if the mining business permit area is in one regency or city area. if it is cross-regional, then the mining business permit is given by the governor after receiving a recommendation from the local regent/mayor. and if it is in a cross-provincial area, the permit is given by the minister after receiving a recommendation from the governor and the local regent/mayor.11 however, after the enactment of law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning minerba mining, mining business permits (iup) through the authority to manage mineral and coal mining which have been owned by the provincial government have become the authority of the central government. so, for mining business actors, whether in the form of limestone mining, iups are obtained with the permission of the central government. so that the transfer of authority erases or revokes the provisions in law number 23 of 2014 concerning regional government. nevertheless, that law number 3 of 2020 in principle does not completely ignore the role of the regional/provincial regional government. mining activities, whether mineral or coal, which are not carried out in accordance with the designated area, cannot obtain an iup. the reluctance of the community or limestone mining entrepreneurs to apply for an iup is due to the difficulty of obtaining or issuing permits since the transfer of authority to issue iups from the regency/city government to 10 gatot supramono. 2012. hukum pertambangan mineral dan batubara di indonesia. jakarta: rineka cipta, hlm. 102. 11 abrar saleng. 2004. hukum pertambangan. yogyakarta: uii press, hlm. 20. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 387 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the central government in this case the ministry of energy and mineral resources as stipulated in article 35 paragraph (4) of law number 3 year 2020. the exercise of the delegation of authority has resulted in incompatibility of limestone mining practices or businesses, resulting in a lot of illegal mining. illegal mining in addition to having a negative impact on the environment can also have a long-term impact on regional development. in addition, not having a permit by mining entrepreneurs can also have a negative impact on the safety of mining workers due to a lack of guarantees and supervision.12 the delegation in terminology refers to law number 30 of 2014 concerning government administration which states that delegation is the delegation of authority from a higher government agency and/or official to a lower government agency and/or official with full responsibility and accountability. to the delegated recipient. when related to the current practice of government administration, this understanding tends to interpret delegation as decentralization, which means that the responsibility for violations rests entirely with the party who was delegated. from this understanding, delegation cannot be given to regions. thus, the meaning as stated in law number 30 of 2014 means that the delegation can only be given to the provincial government through the coadministration mechanism or to the governor as the representative of the central government through the decentralization mechanism.13 in this regard, in the implementation of the norm of delegation to the provincial government in accordance with law number 3 of 2020, it is necessary to discuss further, whether the intended delegation is defined as the transfer of authority to the province as an autonomous region through a decentralization mechanism, assignment to the provincial government through mechanism for co-administration or delegation to the governor as a representative of the central government domiciled in the province through a deconcentration mechanism. the meaning is of course taking 12 ibid., hlm. 105. 13 paulus efendi lotulung. 1994. himpunan makalah asas-asas umum pemerintahan yang baik. bandung: citra aditya bakti, hlm. 65. http://creativecommons.org/licenses/by-nc-sa/4.0/ 388 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia into account the provisions of article 18 paragraph (2) of the 1945 constitution which mandates that autonomous regions in carrying out their government regulate and manage their own government affairs according to the principle of autonomy and assistance tasks whose structure and procedures for administering regional government are regulated in law.14 mining has often been seen as a technical side and its impact, so the law has only been transformed into a series of licensing requirements for mining. the law is seen as a tool for mining legalization, it is rarely touched on how the law regulates mining based on natural resource social justice. article 2 of law number 3 of 2020 stipulates that minerba mining is managed based on the following principles: 1. benefit, fairness and balance. 2. alignment to the interests of the nation. 3. participatory, transparency and accountability. 4. sustainable and environmentally friendly. the first, second and third principles in the explanation do not provide elaboration. however, according to the author, the first principle is multidimensional, meaning that the benefits, fair and balanced include many aspects such as economic, social, cultural, environmental and others. the second principle shows an attitude of nationalism and sovereignty over the utilization and results of mining management and is anti-foreign intervention. the third principle demands that mining management involves the community, is open and responsible. in the explanation of the fourth principle, it is explained that what is meant by the principle of being sustainable and environmentally sound is the principle that in a planned manner integrates the economic, environmental and socio-cultural dimensions in the overall mineral and coal mining business to realize 14 pushep. 2020. pentingnya pengaturan pelibatan daerah provinsi dalam pengelolaan minerba. http://pushep.com., diakses rabu, 30 maret 2022, pukul 09.00 wib. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://pushep.com/ journal of law & legal reform volume 3(3) 2022 389 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia present and future prosperity.15 mining business permit (iup) consists of two stages, namely: 1. exploration iup which includes general investigation, exploration and feasibility study activities. 2. production operation iup, which includes construction, mining, processing and refining activities as well as transportation and sales. in the case of exploration activities and feasibility study activities, exploration iup holders who obtain excavated minerals or coal are required to report to the iup giver. according to article 23 of pp number 23 of 2010 concerning the implementation of minerba mining business activities, it stipulates that the requirements for an exploration iup include: 1. administrative 2. technical 3. environment 4. financial the principle of granting permits as regulated in law number 3 of 2020 concerning minerba mining is that one iup is only allowed for one type of mine. one iup is granted for one type of mineral and coal. the granting of iup may not be more than one type of mine. article 6 of pp number 23 of 2010, stipulates that iups are granted by the minister, governor, or regent/mayor in accordance with the authority of iup granted to: 1. a business entity which can be a private company, a state-owned company or a regionally-owned company. 2. cooperative. 3. individuals who can be indonesian citizens, firman companies or limited partnerships.16 15 otong rosadi. 2012. quo vadis hukum, ekologi dan keadilan sosial. jakarta: thafa media, hlm. 192. 16 natasha elza jauhara dan elsi kartika sari. 2019. pertambangan batu kapur oleh i made sukaraja di kabupaten badung, bali (studi kasus nomor: 1105/pid.sus/2016 pn.dps). jurnal metrik serial humaniora dan sains. vol. 1, no.1, hlm. 29. http://creativecommons.org/licenses/by-nc-sa/4.0/ 390 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia mining activities can be temporarily suspended, for those who have an iup (mining business permit) and iupk (special mining business permit), if: 1. force majeure, such as war, civil unrest, rebellion, epidemic, earthquake, flood, fire, and natural disaster beyond human capability. 2. circumstances that hinder part or all of mining business activities, such as blockades, strikes and disputes over actions beyond the fault of the iup or iupk holders and laws and regulations issued by the government that hinder ongoing mining business activities. 3. the condition of the environmental carrying capacity of the area cannot bear the burden of mineral and/or coal production operations carried out in its territory. the temporary suspension does not reduce the validity period of the iup and iupk. the application for temporary suspension is submitted to the minister, governor or regent/mayor in accordance with their respective authorities. however, for the temporary suspension at point 3, it can be carried out by a mining inspector and/or based on a request from the community to a public official in accordance with their authority. the answer to whether the application is accepted or rejected by the relevant official is given in writing no later than 30 days after the application is received.17 the expiry of a mining business license may expire due to several factors, including: 1. refunded. this means that iup or iupk holders can submit their iup or iupk with a written statement to the minister, governor or regent/mayor in accordance with their authority and accompanied by clear reasons, and after fulfilling their obligations. 2. removed. this means that the holder of an iup or iupk is revoked if: a) does not fulfill the stipulated obligations. b) committing a criminal act as regulated in this law. 17 salim hs. 2012. hukum penyelesain sengketa pertambangan di indonesia. bandung: pustaka reka cipta, hlm. 94-95. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 391 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. expired. if the time period specified in the iup and iupk has expired and no application for an increase or extension of the activity stage or application is submitted but does not meet the requirements, then the iup and iupk shall expire. with the expiration of the iup and iupk, the holder must still fulfill the obligations stipulated in the laws and regulations, including submitting all data obtained from the results of exploration and production operations to the minister, governor, or regent/mayor in accordance with their respective authorities.18 ii. law enforcement against unlicensed limestone mining in review of law number 3 of 2020 concerning mining before the author describes the problem that the author examines, the author will first explain the meaning of law enforcement. law enforcement is the process of making efforts to enforce or actually function legal norms as guidelines for behavior in traffic or legal relations in social and state life. law enforcement is a process to make legal wishes come true.19 in enforcing the law there are 3 (three) elements that must be considered, namely: 1. there is legal certainty. 2. legal benefits. 3. justice.20 at a certain level, the current law enforcement practice, in terms of mining without a license from a micro scale, still prioritizes human values. the practice of law enforcement in indonesia does not create enlightenment, a sense of security and protection, but instead is very 18 suyatono, dkk. 2003. good mining practice. jakarta: mutiara bumi, hlm. 11. 19 satjipto rahardjo. 2009. penegakan hukum sebagai tinjauan sosiologis. yogyakarta: genta publishing, hlm. 28. 20 ibid., hlm. 34. http://creativecommons.org/licenses/by-nc-sa/4.0/ 392 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia pressing, makes people cramped, and at the same time does not give hope to the small people which in turn fosters pragmatic compliance which leads to the phenomenon of disorder in law enforcement.21 mining crime is an act that is prohibited by regulations that is subject to sanctions for perpetrators of acts in order to protect mineral and coal mining activities and businesses. the crime of managing mining without a permit is an illegal mining crime that does not have an iup (mining business permit) or which in english is called illegal mining. illegal mining in this context is mining activities carried out without state permits, in particular without land rights, mining permits and exploration permits or mineral transportation.22 based on the applicable positive law, mining limestone without a permit is one of the criminal acts in the mining sector which is prohibited in law number 3 of 2020 concerning minerba mining. there are 2 (two) types of sanctions for violators of the prohibition provisions in the minerba law, namely administrative sanctions and criminal sanctions. in addition, perpetrators may also be subject to additional sanctions. administrative sanctions for limestone mining actors without a permit are in the form of written warnings, fines, temporary suspension or all exploration activities or production operations and/or revocation of iup, iupk, ipr, sipb (aid mining permit) or iup for sale. criminal sanctions can be imposed on violators as regulated in articles 158 to 164 of the minerba law. article 158 (amendment to the minerba law) for example stipulates in essence that anyone who conducts mining without a permit as referred to in article 35 can be sentenced to a maximum imprisonment of 5 years and a maximum fine of rp. 100 billion. in addition to administrative sanctions and/or criminal sanctions in the mining sector, additional penalties may also be imposed in the form of confiscation of goods used in committing a crime, confiscation of profits 21 bambang sutiyoso. 2010. reformasi keadilan dan penegakan hukum di indonesia. yogyakarta: uii press, hlm. 10. 22 marisan dian pertiwi dan edi setiadi. 2019. penegakan hukum praktek illegal mining. jurnal prosiding ilmu hukum, volume 5, no. 1, hlm. 134. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 393 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia derived from a criminal act and/or the obligation to pay costs incurred as a result of a criminal act.23 the administration of administrative sanctions is part of the administrative law enforcement which is preventive in nature in order to supervise and control the actions of individuals, legal entities and the government. licensing is one of the administrative legal instruments and violations against it can be subject to sanctions. penalties or criminal sanctions are the suffering of someone who makes a mistake because it violates the public interest that has been regulated in the criminal law which is a sanction imposed by a judge on the perpetrator, including in the public interest, namely: 1. the interests of government agencies and state regulatory laws and regulations, such as the state, state institutions, state officials, civil servants, laws, government regulations and so on. 2. the interests of each person such as soul, body, independence, honor and property rights or property.24 the laws and regulations relating to a permit include typical administrative sanctions, including: 1. bestuurdwang (in the form of government coercion). 2. withdrawal of a decision (decree) in favor of the subsidy payment permit. 3. imposition of administrative fines. 4. imposition of forced money by the government.25 a perpetrator of the mining crime above can be given or subject to imprisonment and monetary sanctions which are mandatory punishments. the minerba law is a clear example of a law outside the criminal code which does not determine the qualification of the offense whether it is a criminal offense or a violation offense. the qualification of the offense is 23 prienter jaya hairi. 2021. penegakan hukum tindak pidana illegal mining. jurnal bidang hukum, vol. xii, no. 15/i/puslit/agustus 2021, hlm. 3. 24 roeslan saleh. 2003. perbuatan pidana dan pertanggung jawaban pidana. jakarta: aksara baru, hlm. 23. 25 philipus m. hadjon, dkk. 2002. pengantar hukum adminitrasi indonesia. yogyakarta: gajah mada, hlm. 250. http://creativecommons.org/licenses/by-nc-sa/4.0/ 394 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia important to be regulated because it relates to the criminal procedure code in the future, whether it meets the criteria of error with an act that is intentional or the negligence of the maker, both in criminal acts and in the form of violations. the existence of legal arrangements related to various prohibitions against the criminal act of limestone mining without a permit and the variations in the threat of sanctions, it turns out that in the implementation of law enforcement it is still felt to be ineffective, this is due to problems such as inadequate supervision and slow action in the field as well as indications of alleged games by mining mafia elements. law enforcement in the mineral and coal law, which should be an effort to overcome these crimes, fulfills a sense of justice and is efficient, as if it is powerless when it is applied. however, as the state's reaction to crime, law enforcement must continue to be pursued. law enforcement ideally requires rational efforts that need to be integrated with each other in order to eradicate these crimes. these efforts can be carried out with penal criminal efforts or non-penal criminal efforts.26 in the context of the criminal act of mining limestone without a permit, it seems that these two efforts must be carried out by the government in parallel. this means that both need to be carried out simultaneously, considering the massive violations that have occurred. non-penal efforts mean that crime prevention efforts are carried out before a crime occurs, so this effort is better known as an effort that is preventive in nature. at the same time, this effort is prioritized over repressive efforts. efforts that can be made are to improve supervision and monitoring of mining by strengthening the quantity and quality of mining supervision personnel (mining inspectors). this issue must be a concern of the government because since the enactment of the amendment to the minerba law, all licensing authorities have tried to shift to the central government, except for those which have been delegated to the provincial government. the problem is that the supervision from the ministry of energy and mineral resources is still very minimal. the target of the ministry of energy and mineral resources since 2014 to add as many as 1,000 mining 26 syaiful bakhri. 2010. kebijakan kriminal. jakarta: total media, hlm. 50. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 395 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia inspectors to oversee 6,500 to 1000 mining companies in the country must be realized immediately. penal measures mean efforts that are repressive in nature / action (done after the occurrence of a criminal act) against illegal mining based on the findings of law enforcement officials (aph) or based on public reports related to the crime. law enforcement officers according to their respective authorities are obliged to strictly implement the law enforcement process against perpetrators of criminal acts. in addition, law enforcement officials must also take action against individuals from their agencies who are proven to be involved in the criminal act of mining without a permit.27 it can be observed that what is happening in the field (weak enforcement of the mining law without a permit), could also be due to the lack of comprehensive efforts to fix the key factors that can affect the effectiveness of illegal mining law enforcement. as stated by soerjono soekanto, that there are 5 factors that influence law enforcement, namely legal factors, law enforcement factors, facilities and infrastructure factors, community factors and cultural factors.28 in terms of legal factors, the mineral and coal law in general can indeed be said to have made progress in terms of legal certainty for law enforcement of illegal mining. even the amendment to the mineral and coal law has exacerbated the threat of fines for violators in several articles of the criminal code. one of them is article 158 of the minerba law which previously threatened a maximum fine of rp. 10 billion rupiah, changed to a maximum fine of rp. 100 billion rupiah. however, the problem is that several articles have been deleted, one of which is article 165 of the minerba law, even though this article is very important because it regulates criminal acts for perpetrators of abuse of authority in issuing iup, ipr or iupk. 27 muhammad helzha indra. 2019. pertanggungjawaban pidana terhadap pelaku tindak pidana penambangan tanpa izin di kawasan hutan lindung (studi putusan no. 12/pid.sus/2017/pn.tdn). jurnal hukum: fakultas hukum universitas sumatera utara, vol. 1, no. 3, hlm.. 120. 28 soerjono soekanto. 2004. faktor-faktor yang mempengaruhi penegakan hukum. jakarta: raja grafindo persada, hlm. 8. http://creativecommons.org/licenses/by-nc-sa/4.0/ 396 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in terms of law enforcement factors, it is still a real problem, meaning that there is still a need for strengthening, especially regarding the professionalism and integrity of law enforcement personnel. then from the factor of facilities and infrastructure also need to get great attention. law enforcement officials in carrying out their duties will not succeed without adequate equipment and funds. meanwhile, from the community factor, it takes community sensitivity to participate in helping law enforcement officials by reporting if they know of illegal mining activities in their area, especially when the quantity of law enforcement officers is still very minimal. finally, there is a cultural factor, namely the values of community legal awareness and law enforcement officials must be built so that they are not involved in these illegal activities.29 the politics of criminal law talks about efforts to overcome crime through criminal provisions as part of criminal politics. this means that the politics of criminal law has a role as a crime prevention policy with criminal law. this crime prevention effort is part of the criminal law enforcement effort in law enforcement policy. combating crime through the application of criminal law (criminal law application) is a crime prevention policy through the means of punishment. penal facilities are focused on repressive law enforcement efforts after a crime has occurred. this facility focuses on regulating what actions should be made into criminal acts and what sanctions should be imposed on violators.30 mining without a permit is an act that is prohibited in article 158 of the minerba law so that it is classified as a criminal act. the regulation of this crime is based on the fact that the act is a crime that meets the following criteria: 1. this act is an act against the law on a provision of criminal legislation. 2. this act can bring harm to society and the state. 29 andhika, dkk. 2018. kewenangan kepolisian dalam menangani tindak pidana pertambangan (illegal mining) menurut undang-undang nomor 4 tahun 2009 (studi di kepolisian negara indonesia). jurnal daulat hukum, vol. 1, no. 1, hlm. 20. 30 barda nawawi arief. 2005. bunga rampai kebijakan hukum pidana. bandung: citra aditya bakti, hlm. 12-13. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 397 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. this act hinders the ideals of the state so that it is dangerous.31 based on the description above, it can be concluded that law enforcement against limestone mining permits is carried out in accordance with criminal law policies by prioritizing a criminal system for perpetrators of mining crimes without a permit is a crime because it violates the provisions in article 158 of the minerba law, which can result in losses both physically and mentally. material and immaterial to society and the state, as well as hindering the ideals of the state in environmental protection and management. the regulation of this act is part of an effort to overcome crime using criminal means. the use of this criminal means is the embodiment of criminal policy through the means of a repressive penalty (eradication) that is imposed after the crime has occurred. article 158 of the minerba law is a criminal provision that is used as the basis for dealing with mining crimes without a permit. the application of article 158 of the minerba law is a legal embodiment (law in action) in an effort to enforce criminal law (criminal law enforcement) at the application stage. at this application stage, law enforcement officials have a role to realize the laws that have been made at the formulation stage in question consist of the police, the prosecutor's office, and the courts who coordinate with each other in the enforcement of criminal law.32 law enforcement always takes place in a competitive relationship and intersects with processes that occur in other fields such as social, economic, political and so on. the law always compromises with the disorderly conditions in the society. limestone mining business activities carried out without a business activity permit, it is necessary to reformulate people's mining business policies so that the state with its equipment is present to provide legal protection and protection as well as empower marginalized communities due to the development process which has been more 31 salman luthan. 2009. asas dan kriteria kriminalisasi. jurnal hukum 16, no. 1, hlm. 14. 32 kristian. 2018. kebijakan aplikasi sistem pertanggungjawaban pidana korporasi dalam sistem pertanggungjawaban pidana korporasi dalam sistem peradilan pidana terpadu di indonesia. bandung: alumni, hlm. 33. http://creativecommons.org/licenses/by-nc-sa/4.0/ 398 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia concerned with the growth aspect so that in time they can have competitiveness and live decently as a dignified human being. looking at the provisions in law number 3 of 2020 concerning minerba mining, there are still shortcomings, one of which does not regulate corporations that can be perpetrators of criminal acts of mining without a permit, as is the case in other laws, namely the fisheries law, law no. -aviation act, narcotics act. if a criminal act in the mining sector is committed by a legal entity, then the legal entity can be prosecuted to the court, but the punishment imposed by the judge is in addition to imprisonment, as well as fines for the management. in addition, the legal entity was sentenced to a fine with a weight plus 1/3 times the maximum penalty imposed. then the judge can also impose additional penalties on legal entities in the form of revocation of business licenses and/or revocation of legal entity status.33 conclusion the management of limestone mining permits in law number 3 of 2020 concerning mineral and coal mining is carried out in accordance with the provisions in article 35 paragraph (4), in which the permits are carried out based on the delegated authority of the central government. this regulation has implications for regional authorities in issuing mining sector permits so that regional governments can no longer issue permits for mining business activities. the central government may delegate the authority to grant business permits to the provincial government in accordance with the provisions of laws and regulations. law enforcement against limestone mining without a permit can be said to be ineffective and not in accordance with the purpose of punishment. given that mining without a permit is a mining crime in the environmental sector, the imposition of criminal sanctions should be oriented towards the environment. this can be pursued through the theory of relative or 33 muhammad helzha indra. op.cit., hlm. 37-38. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(3) 2022 399 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia prevention in the purpose of punishment which is oriented towards environmental conservation. this can be pursued through criminal sanctions in the form of payment of compensation through criminal fines and sanctions for coercive action through additional criminal sanctions in article 164 of the minerba law which is aimed at environmental restoration. references andhika, dkk. 2018. kewenangan kepolisian dalam menangani tindak pidana pertambangan (illegal mining) menurut undang-undang nomor 4 tahun 2009 (studi di kepolisian negara indonesia). jurnal daulat hukum, vol. 1, no. 1, hlm. 20. anonim. 2000. spesifikasi kalsium karbonat untuk pelapis kertas (paper coating). probolinggo: pt. kertas leces. arief. barda nawawi., 2005. bunga rampai kebijakan hukum pidana. bandung: citra aditya bakti. bakhri. syaiful. 2010. kebijakan kriminal. jakarta: total media. hs. salim., 2012. hukum penyelesain sengketa pertambangan di indonesia. bandung: pustaka reka cipta. hs. salim., 2014. hukum pertambangan mineral dan batubara. jakarta: sinar grafika. imamulhadi. 2017. ikhtisar ilmu hukum. yogyakarta: k-media. kristian. 2018. kebijakan aplikasi sistem pertanggungjawaban pidana korporasi dalam sistem pertanggungjawaban pidana korporasi dalam sistem peradilan pidana terpadu di indonesia. bandung: alumni, m. abdul gofur dan i gede astra wesnawa. 2018. dampak ekoogi penambangan batu kapur sebagai bahan dasar pembuatan semen di gunung sadeng kecamatan puger, kabupaten jember. jurnal pendidikan geografi undiksha, vol. 6, no. 3, pp. 163-174, hlm. 166. m. hadjon, philipus. dkk., 2002. pengantar hukum adminitrasi indonesia. yogyakarta: gajah mada. maimunnah. siti., 2012. negara tambang dan masyarakat adat. malang: intrans publishing. http://creativecommons.org/licenses/by-nc-sa/4.0/ 400 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia marisan dian pertiwi dan edi setiadi. 2019. penegakan hukum praktek illegal mining. jurnal prosiding ilmu hukum, volume 5, no. 1, hlm. 134. muhammad helzha indra. 2019. pertanggungjawaban pidana terhadap pelaku tindak pidana penambangan tanpa izin di kawasan hutan lindung (studi putusan no. 12/pid.sus/2017/pn.tdn). jurnal hukum: fakultas hukum universitas sumatera utara, vol. 1, no. 3, hlm.. 120. natasha elza jauhara dan elsi kartika sari. 2019. pertambangan batu kapur oleh i made sukaraja di kabupaten badung, bali (studi kasus nomor: 1105/pid.sus/2016 pn.dps). jurnal metrik serial humaniora dan sains. vol. 1, no.1, hlm. 29. prienter jaya hairi. 2021. penegakan hukum tindak pidana illegal mining. jurnal bidang hukum, vol. xii, no. 15/i/puslit/agustus 2021, hlm. 3. pushep. 2020. pentingnya pengaturan pelibatan daerah provinsi dalam pengelolaan minerba. http://pushep.com., diakses rabu, 30 maret 2022, pukul 09.00 wib. rahardjo. satjipto., 2009. penegakan hukum sebagai tinjauan sosiologis. yogyakarta: genta publishing. risa nur’aini, suparman aw, dan nurudin hadi. 2019. dampak penambangan batu kapur terhadap kesejahteraan masyarakat pekerja tambang di desa leranwetan kecamatan palang, kabupaten tuban. skripsi pendidikan pancasila dan kewarganegaraan: universitas negeri malang, hlm. 15-17. rosadi. otong., 2012. quo vadis hukum, ekologi dan keadilan sosial. jakarta: thafa media. saleh. roeslan., 2003. perbuatan pidana dan pertanggung jawaban pidana. jakarta: aksara baru. saleng. abrar., 2004. hukum pertambangan. yogyakarta: uii press. soekanto. soerjono., 2004. faktor-faktor yang mempengaruhi penegakan hukum. jakarta: raja grafindo persada. supramono. gatot., 2012. hukum pertambangan mineral dan batubara di indonesia. jakarta: rineka cipta. sutiyoso. bambang., 2010. reformasi keadilan dan penegakan hukum di indonesia. yogyakarta: uii press. suyatono, dkk. 2003. good mining practice. jakarta: mutiara bumi. http://creativecommons.org/licenses/by-nc-sa/4.0/ http://pushep.com/ journal of law & legal reform volume 3(3) 2022 401 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia umam. ahmad khoirul., 2021. kuasa oligarki atas minerba indonesia: analisis pasca pengesahan uu no. 3 tahun 2020 tentang pertambangan minerba. jakarta: universitas paramadina. undang-undang nomor 3 tahun 2020 tentang perubahan atas undangundang nomor 4 tahun 2009 tentang pertambangan mineral dan batubara. lembar negara tahun 2020 nomor 3. acknowledgment none funding information none conflicting interest statement the authors states that there is no conflict of interest in the publication of this article. publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. about author(s) ratu triani ayune wulan suci is one of the staff at kantor advokat sriwijaya (eko heriyanto, s.h.) semarang, indonesia. she is also a postgraduate student at the faculty of law, universitas negeri semarang, indonesia. http://creativecommons.org/licenses/by-nc-sa/4.0/ 402 journal of law & legal reform volume 3(3) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law enforcement officers are never ‘off duty.’ they are dedicated public servants who are sworn to protect public safety at any time and place that the peace is threatened. they need all the help that they can get. barbara boxer http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cf28862007 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 3(4) 2022 457 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 4, october 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: august 02, 2022 revised: october 12, 2022 accepted: october 27, 2022 available online since: october 31, 2022 how to cite: nurjanah, lilia, and darminto hartono paulus. 2022. “legal obligation and consumer defense in the food industry (application of law number 8 of 1999 concerning consumers)”. journal of law and legal reform 3 (4), 457-80. https://doi.org/10.15294/jllr.v3i4.59431. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article legal obligation and consumer defense in the food industry (application of law number 8 of 1999 concerning consumers) lilia rosa siti nurjanah 1, darminto hartono paulus2 1,2 faculty of law, universitas diponegoro, semarang, indonesia 2 harvard law school, cambridge, ma 02138, united states  liliarosa495@gmail.com abstract legislation pertaining to consumer rights is required since consumers continue to face disadvantages in the fields of commerce, education, and negotiation. the adoption of law no. 8 of 1999 protects consumers, which is a wise decision. national development theories serve as the foundation http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i4.59431 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 mailto:liliarosa495@gmail.com 458 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia for this government-community partnership. this study looks at how customer protection law no. 8 of 1999 handles the duties and rights of consumers in the food business. legal normative research is being done here. the information was supplied by the consumer protection law no. 8 of 1999 and the food and medicine administration safety and modernization law no. 18 of 2012. this study demonstrates that distributors of food and drink in indonesia will have legal guarantees and protection. maintain good standards for food and drink. to help customers make purchasing decisions, producers and distributors must clearly label all items that are offered. this rule aids purchasers in making informed decisions. although the producer provided the information that consumers needed, some of them chose not to read it. given that certain manufacturers may still fail to pay attention to product information, the consumer protection law no. 8 of 1999 can still be necessary. customers should be more watchful while purchasing, and producers should be more knowledgeable about product details. keywords: consumer protection, consumer rights, legal protection, indonesian consumer protection law introduction technology advancement and development have advanced human civilisation. the pursuit of development will continue in order to bring about communal prosperity. there appear to be a number of gaps in the rapidly evolving technology and progress that negatively affect human existence. since it is well knowledge that criminal crimes are frequently committed in cunning methods, this has a detrimental effect on technology advancements. the present adverse effect affects the processing of foods that can be processed immediately and are ready for consumption, such as foods that http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 459 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia are generally available in the larger population. the preparation of this kind of food frequently involves dishonesty. this deception, for instance, takes the form of adding chemicals to dough as a processed component that serves as a preservative or food coloring. artificial sweeteners, food preservatives, and food flavorings are all examples of chemicals in food. when utilized in accordance with the guidelines, the chemicals included in food pose no risk to the human body. however, numerous chemicals that are not necessary for food are used in it, posing a risk to individuals who eat it. for example, formalin is used as a food preservative to keep food fresh for a long time, while rhodamin b or methanyl yellow is used as a coloring to make food look more appetizing 1. food, along with clothing and a safe place to live, is one of the most fundamental need for any living organism. it is far simpler to produce quick meals and food that can last longer if dangerous food additives are used in their place, without any regard for the effects on human health or the quality of the food. because in order for the body to operate at its optimum, it need a range of nutrients from the food that it consumes. it is not necessary for the foods that are consumed to have an appealing appearance in order for them to be nutritious and safe in the sense that they do not include elements that are detrimental to the health of the body. therefore, it is vital to have security in the food sector in order to protect consumers from ingesting foods that are unhealthy. food encompasses all components that are utilized in the preparation, processing, and/or production of food or beverages and that are biologically derived from agricultural products, plantations, forestry, fisheries, animal husbandry, waters, and water, regardless of whether or not they have been processed. this concept encompasses food additives in addition to food raw materials and other components of food 2. 1 fadhrian chesar rasyidhito, “perlindungan konsumen terhadap makanan yang mengandung zat kimia,” universitas muhammadiyah magelang, 2017, 13–30. 2 roida nababan et al., “perlindungan konsumen terhadap penggunaan bahan pengawet makanan menurut undang-undang nomor 8 tahun 1999 tentang http://creativecommons.org/licenses/by-nc-sa/4.0/ 460 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the provisions that control the rights and restrictions of customers that are outlined in the consumer protection act are regularly violated by business organizations. when faced with such circumstances, customers typically lack awareness about the food safety of the products they consume; as a result, very few customers demand that producers make things with assurances. because of this, food corporations put the health and safety of their customers last in order to achieve maximum profitability. it is a non-ministerial government organization that manages government affairs in the areas of drug and food control in accordance with the requirements of the applicable invitation law by inspecting food products that are circulating in the community. another name for the pom agency is the food and drug supervisory agency 3. when it comes to the distribution of commodities and the marketing of different products, a methodical pursuit of productivity and commercial effectiveness between manufacturers and end users is essential. as a result of this, the engagement of the government in safeguarding the interests of consumers is important in this circumstance. because of this, the government has a responsibility to take measures to protect customers from potentially hazardous products by regulating, supervising, and managing the production, distribution, and distribution of goods. this is necessary to ensure that the health and financial well-being of customers is not put in jeopardy. this protection is provided by the government in the form of law that safeguards customers against issues such as the issue of the quality of goods, the manner in which manufacturing processes are carried out, health requirements, packaging requirements, environmental standards, and so on. 4. perlindungan konsumen,” pkm : pengabdian kepada masyarakat 2, no. 2 (2021): 122– 35. 3 riska wildawati, “perlindungan konsumen atas peredaran makanan tanpa izin ditinjau dari undang-undang no. 8 tahun 1999,” universitas islam kalimantan muhammad arsyad al-banjari banjarmasin 1, no. 3 (2020). 4 rina shahriyani shahrullah, “perlindungan konsumen terhadap produk makanan kadaluarsa di kota batam,” journal of law and policy transformation 5, no. 1 (2020): 85–112. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 461 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia because customers typically still have inferior positions in the economic, educational, and negotiating sectors, it is essential to have legislation that defends the rights of consumers who have gotten less attention. this law must be passed as soon as possible. consumers are now better protected thanks to the passage of law no. 8 of 1999, which was an important step in the right direction. this endeavor is jointly undertaken by both the government and the community, and its foundation rests on ideas that are significant to the fundamentals of national development. as a consequence of this, it is hoped that the community of dissatisfied customers would have a sense of security. this is crucial since the law has the power to force compliance from corporate players and also imposes serious penalties. additionally, the legislation carries harsh sanctions. on the other hand, the status of consumers as vulnerable parties is also accepted on a worldwide scale. this is demonstrated by the united nations general assembly resolution no. a/res/39/248 of 1985 about guidelines for consumer protection, which states that: “taking into account the interest and needs of consumers in all countries, particularly those indeveloping countries, recognizing that consumers often face imbalance in economics terms, educational levels, and bargaining power, and bearing in mind that consumers should have the right of access to nonhazard-out products, as well as the right to promote just, equitable and sustainable economic and social development” according to the guidelines for consumer protection from 1985, consumers from all countries, regardless of where they are situated or their socioeconomic situation, are to have access to a set of essential rights. these rights were established to protect consumers. these fundamental rights include the right to information that is unambiguous, truthful, and honest; the right to safety and security; the right to vote; the right to be heard; the right to compensation; the right to basic human needs; the obligation to safeguard the environment; and the right to obtain a minimum education. the united nations organization called with each of its member states to pass legislation that would protect the rights of consumers in their own http://creativecommons.org/licenses/by-nc-sa/4.0/ 462 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia countries 5. one of the studies on consumer protection that has been discussed, ernawati's study on "consumer protection of household industry food," revealed factors that prevent the government and north buton regency consumer institutions from stopping the distribution of foods that contain textile coloring agents. these factors include a lack of funding to organize activities that have been scheduled so that an agenda is not carried out, a bureaucratic system that is still in place, and bureaucracy. in addition, the study revealed that the distribution of foods that contain in addition, tri sulistmuji wiyono is the author of a paper that was published under the title "legal protection of the consumer on food products containing hazardous materials." legal protection is required for consumers and the community here against products that pose a health risk. customers have the right to demand that corporate actors be held legally accountable for their health and safety in the event that a product they purchased turns out to be hazardous to them. product accountability works to protect consumers by putting legal sanctions on corporate actors who are responsible for causing financial harm to customers. in order to have a deterrent effect on the offenders and to prevent other parties from engaging in the same activity, the use of criminal sanctions for the purpose of securing food, beverage, and drug products must be done in accordance with the statutory regulations, specifically by imprisonment, criminal penalties, and additional crimes (payment of compensation). this is done in order to have an impact on the offenders themselves and to prevent other parties from engaging in the same activity 6. it has been around 17 (seventeen) years since it was established that the consumer protection act no. 8 of 1999 (hereinafter referred to as uupk) was lawful; nonetheless, it appears that the execution of the uupk 5 rinitami njatrijani, “posisi undang-undang perlindungan konsumen nomor 8 tahun 1999 dalam upaya perlindungan terhadap konsumen,” diponegoro private law review 1, no. 1 (2017): 23–35. 6 tri sulismuji wiyono, “perlindungan hukum konsumenterhadap produk pangan yang mengandung bahan berbahaya,” jurnal ilmu hukum alethea 4, no. 1 (2020): 21–40. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 463 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia still confronts a number of problems brought on by a variety of circumstances. mistakes, defects, and weaknesses in the uupk's own regulation are among these. specifically, these errors and flaws and weaknesses are related to (1) grammatical law, (2) systematic law, (3) the responsibility of corporate actors, (4) the treatment of consumer complaints, and (5) institutional. it is imperative to make changes to the uupk in order to improve it and bring it in line with the original intent behind its creation, which was the protection of indonesian consumers. based on some of the aforementioned considerations, it is imperative to make changes to the uupk in order to improve it and bring it in line with the original intent behind its creation. as a result, it is essential to take into consideration the manner in which the consumer protection act no. 8 of 1999 handles the responsibility of consumers and the protection of their rights within the food business. consumer protection concept as the pace of science and technology quickens, which is a driving force for the productivity and efficiency of business actors for the goods and/or services it creates, consumer protection is considered to be both physically and formally becoming highly essential. this is because science and technology is a driving force for the productivity and efficiency of business actors. in conclusion, in order to pursue and accomplish these two objectives, it is necessary for all parties involved, directly and indirectly, to take actions that provide adequate protection for the interests of consumers. it is hoped that the consumer protection efforts in indonesia can be further improved with the existence of the law of the republic of indonesia number 8 of 1999 concerning consumer protection. this will ensure that consumers are not always put in a vulnerable position and that business actors can also further improve the quality of the products that http://creativecommons.org/licenses/by-nc-sa/4.0/ 464 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia are offered to consumers 7. the consumer protection act of 1999, also known as undangundang nomor 8 tahun 1999, is a piece of legislation that was enacted in 1999 and created principles for both customers and those who run businesses. the following provisions, which relate to the handling of consumer complaints and were derived from section 45 of the undangundang, are included in these recommendations; they are as follows: 1) every irate consumer has the choice to file a lawsuit against a business actor either through the organization that is in charge of mediating disputes between consumers and company actors or through the system of justice that is found in a general court setting. 2) the resolution of consumer disputes can take place either in court or outside of court, depending on the parties' respective decisions made voluntarily. 3) the fact that a dispute was settled outside of court, as described in paragraph (2), does not exonerate a person of criminal responsibility under law. 4) if the parties to the case or one of the parties has elected to use the consumer dispute resolution attempts, and the attempt is judged unsuccessful, the parties to the case or one of the parties may choose to utilize the alternative dispute resolution. as a result of the historically precarious position that customers have occupied, it is abundantly evident that the purpose of this legislation is to serve the function of safeguarding customers like us. in the context of this act, the term "consumer protection" refers to any activities that offer consumers with more clarity and protection from the law 8. customers are less likely to be provided legal protection due to the predisposition of corporate actors, which is largely driven by the inability or inadequateness 7 maria alberta liza quintarti, “perlindungan hukum bagi konsumen akibat produk makanan yang tidak memenuhi standar mutu menurut undang-undang republik indonesia nomor 8 tahun 1999,” jurnal inovasi penelitian 1, no. 4 (2020): 859–864. 8 nababan et al., “perlindungan konsumen terhadap penggunaan bahan pengawet makanan menurut undang-undang nomor 8 tahun 1999 tentang perlindungan konsumen.” http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 465 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia of legal safeguards to effectively guarantee consumers' interests. law enforcement (law and forcement) is a guarantee of the ability of business actors that are solely profit-oriented in the short term to continue operating, in a manner analogous to how paying attention to the safety of customers in a long-term context is a guarantee of the ability of the business actor to continue operating. therefore, in this context, the term "consumer protection" refers to all measures that establish legal clarity in order to give consumers protection, and the settlement of complaints is governed by article 45, which can be seen above. article 1 point 3 of law number 8 of 1999 defines business actors as "any individual or business entity in the form of a legal entity or not established and domiciled or carried out activities in the jurisdiction of the republic of indonesia either themselves or jointly through agreements on the implementation of business activities in various economic fields." this definition applies to "every individual or business entity in the form of a legal entity or not established and domiciled or carried out activities in the jurisdiction of the republic of indonesia either themselves or jointly through agreements on the implementation of in addition to their knowledge of business, actors in the law also explained their familiarity with customers. in accordance with indonesian law, the following is the formal legal meaning of the term "consumer," which can be found in law number 8 of 1999, article 1 point 2: "consumers are anybody who consumes items and/or services that are supplied in the community, regardless of whether it is for personal, family, social, or any other cause that is not commercial," in article 1 number 5 of law number 7 of 1996 concerning food, "the activity or process of creating, preparing, managing, manufacturing, preserving, packing, packaging, and or modifying food shape" is defined as "the activity or process of creating, preparing, managing, manufacturing, preserving, packing, packaging, and or modifying food shape." article 1 number 2 of the food law defines processed food as "food or beverage processed by particular procedures or ways with or without additional components." the production of food http://creativecommons.org/licenses/by-nc-sa/4.0/ 466 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia typically involves processed food, which can be defined as "food or beverage processed by particular procedures or ways with or without additional components." 9 basis of legal theory once legal responsibility has been established, the subjects will have rights and obligations once it has been determined whether or not they will be held accountable for the activities they have taken or the legal connections they have formed. because the concept of legal obligation is one that must be maintained because of its link to the law. according to research done by satjipto rahardjo in the year 2000, the term "legal association" (rechtsverkeer) is common parlance and, from a legal perspective, indicates that there are legal actions (rechthandeling) and legal ties (rechtbetrekking) between different legal matters. association, action, and legal ties are all fraught with potential legal repercussions and/or are governed by specific statutory mandates. when two or more legal people, each of whom is independently subject to rights and obligations, engage with one another, this scenario is known as "interaction" (rechten en plichten). in order for each legal subject to correctly complete their obligations and gain their rights, the goal of law is to manage the association of law so that the law may do its job. in addition to this, the legislation acted as a protection (hebrew: beschermingen) for those who were required to comply with it. to put it another way, the application of the law is what constitutes the process of justice. the right to be held accountable and required to repair or restore rights that have been violated when a legal subject disregards legal duties that should be carried out and the right to be held accountable and compelled to repair or restore rights 9 berliana meidy putri, “tanggung jawab pemerintah kabupaten jember dalam proses pengurusan dokumen kependudukan berdasarkan undang-undang republik indonesia nomor 24 tahun 2013 tentang perubahan atas undang-undang nomor 23 tahun 2006 tentang administrasi kependudukan,” universitas muhammadiyah jember, 2019. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 467 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that have been violated. whether an individual, a legal organization, or the government, if a legal subject breaks the law, that subject has responsibility and may have claims for restitution or rights. this is true regardless of the subject's legal status 10. there is a significant connection between the concepts of rights and obligations and the concept of legal responsibility. the concept of rights places an emphasis on being aware of one's rights in conjunction with having a good understanding of one's obligations. many people hold the view that one's responsibilities toward other people are inextricably linked to that person's rights. that a person is legally responsible, which denotes that he is answerable for a punishment in the event that his actions are in violation of the law, or that a person is legally liable for a specific action or behavior. according to hans kelsen's notion of legal responsibility, the phrase "legally culpable for a given conduct" or "that he bears legal responsibility" alludes to a consequence in the form of competing acts that may be taken against the person who is being held accountable for the behavior in question 11. according to the comprehensive bahasa indonesia dictionary, the necessity to bear legal accountability for any and all effects that may be attributed to one's activities is the definition of responsibility (kbbi) 12. however, according to the titik triwulan pertanggungjawaban, there must be a foundation, and that foundation is the occurrence of events that give rise to a person's legal right to punish another person and, at the same time, to the person's legal duty to punish the perpetrator. this foundation is the occurrence of events that give rise to a person's legal right to punish another person and, at the same time, to the person's legal obligation to 10 hana afifah, “tinjauan hukum islam terhadap perlindungan konsumen pasca layanan service (studi kasus di samsung service center purwokerto),” hukum ekonomi syari’ah institut agama islam negeri (iain) purwokerto, 2019. 11 youky surinda, “konsep tanggung jawab menurut teori tanggung jawab dalam hukum,” id.linkedin.com, 26 juli 2022, https://id.linkedin.com/. 12 badan pengembangan dan pembinaan bahasa, “kementrian pendidikan dan kebudayaan republik indonesia,” kemendikbud, 2017, https://kbbi.kemendikbud.go.id/entri/tanggung jawab. http://creativecommons.org/licenses/by-nc-sa/4.0/ 468 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia punish the perpetrator. responsibility refers to the moral disposition to carry out one's obligations, whereas liability refers to the legal disposition to hold another party accountable for violating one's obligations or the rights of a third party13. however, it is possible to view responsibility as the moral disposition to carry out one's obligations. liability refers to the legal disposition to hold another party accountable for violating one's obligations or the rights of a third party 14. method this strategy employs a method that is known as a normative juridical approach in order to address the problem that has been presented. this is due to the fact that this approach is founded on study on legal standards in addition to the analysis of legal documents and legislation. the activities of reading, recording, and quoting from books are the means by which the objectives of data processing methods and literary studies are accomplished. in the course of this approach, laws that are relevant to the problems that are being investigated are also subjected to scrutiny. in the following step, we are going to do a qualitative analysis on all of the material that was acquired in the prior phase. research on legal norms does not always entail an investigation of legal norms. in general, juridification norm research is only acknowledged as a legal study that regulates the norms in the law. this is the common consensus. the investigation of normative law is more in-depth 15. according to johnny ibrahim, normative legal research is a type of scientific inquiry that aims to uncover the truth based on normative applications of scientific reasoning. normative legal research is an example of how scientific inquiry 13 titik triwulan dan shinta febrian, perlindungan hukum bagi pasien (jakarta: prestasi pustaka, 2010). 14 zainal asikin et.al, pengantar hukum perusahaan (jakarta: prenadamedia group, 2017). 15 johnny ibrahim, teori dan metodologi penelitian hukum normatif, (malang: bayu media, 2018). http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 469 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia may be used in the legal field. the normative component of this extends beyond the laws that are now in place 16. according to the research that amiruddin and zainal asikin conducted in 2004, secondary data sources are taken into consideration to be normative legal data sources. primary legal information, which includes legislation and regulations, is deemed to be binding and positive legal content within the framework of this research. 2) the food and drug administration safety and modernization act no. 18 of 2012; and for secondary legal resources, specifically the material that is used to explain primary legal materials and consists of literature that offers the perspectives of legal experts on consumer protection and food. 1) the consumer protection act no. 8 of 1999; 2) the food and drug administration safety and modernization act no. 18 of 2012; and for primary legal resources. when it comes to the collecting of data, one of the methods that is used is to analyze the information contained in databases. this method is both one of the strategies that is used and one of the tactics that is employed. the information that was gathered will be analyzed quantitatively using descriptive statistics in order to provide a better understanding of the connections that may be drawn between commonly held beliefs and the observable data. this will be done in order to provide a better understanding of the connections that may be drawn between commonly held beliefs and the observable data 17. the goal of this essay is to analyze the legal safeguards granted to customers by law no. 8 of 1999 in the context of the food manufacturing business. some examples of the theoretical and practical benefits that have emerged from this research initiative are shown below: theoretically, one's understanding of consumer protection in the food industry as well as one's 16 prahassacitta, 2019 17 bachtiar, metode penelitian hukum, ed. oleh m.h dr. oksidelfa yanto, s.h., fiat justisia jurnal ilmu hukum, (pamulang – tangerang selatan: unpam press, 2018), http://eprints.unpam.ac.id/8557/2/mih02306_modul utuh_metode penelitian hukum.pdf. http://creativecommons.org/licenses/by-nc-sa/4.0/ 470 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia expertise and awareness on such topics may be enhanced. the author also has the goal that the findings of the study might potentially be utilized as a source of reading material or as a literary work for those individuals who have an interest in consumer protection. in a more tangible sense, it may be of assistance to the community in gaining an awareness of and information pertaining to consumer protection in the field of equality and how to resolve concerns that occur as a result of this. additionally, it may be of assistance to the community in gaining this awareness and information 18. result &discussion given that they are, at their essence, economic notions, it would be illogical to expect players in the business world to be aware of them. the objective of the business actor is to maximize profits while simultaneously cutting costs to the greatest extent possible. therefore, it is very necessary to take action to improve both the agency and the protection provided to customers. people need to be encouraged to buy food from the firm so that there is less of a chance that their interests will be harmed in a direct or indirect way. as a result, it is essential to find ways to encourage customers to make purchases of food from the company. the fact that many consumer goods, including meals, drinks, and snacks, do not comply to the standards that control the inclusion of labels is a source of concern for consumers who buy in a variety of demographic categories. it is irrelevant to this part of the issue that customers have access to a broad variety of products, beverages, and snacks from which to choose. in particular, the consumption of foods that include artificial colors and preservatives presents a major risk to human health, and there is even the potential that this risk might threaten the continuation of life. these 18 rizaldy fatha pringgar, “penelitian kepustakaan(library research) modul pembelajaran berbasis augmented realitypada pembelajaran siswa,” jurnalit-edu 5, no. 1 (2020): 317–29, https://ejournal.unesa.ac.id/index.php/itedu/article/view/37489/33237. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 471 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia chemical substances do not occur in nature and have no connection to food in any manner, shape, or form. these components have no business being included in the finished product and ought to be eliminated right away. it is up to individual consumers to educate themselves in a manner that is both factually correct and clearly clear, as well as one that is inclusive of individuals of all different backgrounds and identities. this is because consumers have the misconception that they have an expert degree of knowledge regarding the products that they purchase and use in their daily lives. in addition, given that the expansion of indonesia's commercial banking industry has turned it into an indispensable component of the economy of a developing nation, there is an urgent need to place a higher focus on the safety of customers 19. this need is exacerbated by the fact that the expansion of the commercial banking industry in indonesia has transformed it into an indispensable component. in spite of the fact that it is predicted that this will have a positive impact on the degree to which firms compete with one another in the market, there is still a potential that this will have a negative effect on the degree to which consumers are protected. 1. consumer protection's goals the purpose of consumer protection is to increase consumer knowledge so that consumers can take preventative measures to protect themselves from potential risks, to reduce the likelihood that consumers will experience unintended consequences as a result of their purchases, and to give consumers more of a say over the products and services that they choose to make use of 20. in accordance with article 5 of the consumer protection 19 heni susanti, “studi eksplorasi perilaku konsumen dalam membuat keputusan pembelian anjing ras di kennel d.i yogyakarta” (universitas atma jaya yogyakarta, 2018), http://e-journal.uajy.ac.id/id/eprint/16346. 20 i wayan gede asmara, i nyoman sujana, dan ni made puspasutari, “perlindungan hukum terhadap hak konsumen atas informasi produk import,” jurnal analogi hukum 1, no. 1 (2019): 120–24. http://creativecommons.org/licenses/by-nc-sa/4.0/ 472 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law, consumers are obligated to fulfill certain responsibilities in this domain. these obligations include having good intentions while purchasing products and services, such as paying the agreed-upon exchange rate, reading and following the instructions and instructional processes offered with the purchase, and having good intentions while using the product or service. in addition, these obligations include having good intentions while purchasing products and services, such as paying the agreed-upon exchange rate. when searching for goods and services, having good intentions means doing things like reading and acting in accordance with the instructions and guiding techniques that come packaged with the purchase. for example, reading and acting in accordance with the instructions and guiding techniques that come packaged with the purchase. it is conceivable that it will be essential to make an effort to understand and stick to any recommendations and protocols that come bundled together with the particular item or service that is causing the issue. in keeping with the current efforts that are being made to find a solution to the proper discussion over the laws that control consumer protection, the following will be discussed. the government has been assigned the role of leading and monitoring the implementation of consumer protection law in accordance with "article 29 paragraph (1) law no. 8 of 1999," which states that this obligation was handed to the government. the following provisions are included in this piece of legislation: 1) the establishment of new commercial entities that are distinct from those designed to foster mutually beneficial interactions between customers and firm participants; 2) the formation of groups that look out for the interests of customers; 3) following the fourth paragraph of article 29 of law no. 8 of 1999 increasing the amount of effort put into research and development activities linked to consumer protection while simultaneously enhancing the quality of the human resources that are already available. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 473 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. producers engaged in illegal behavior to be more exact, the following is an excerpt from the first sentence of article 8 of law no. 8 of 1999 on the protection of consumers. it is a violation of the law for business actors to create or sell products, services, or information that either 1) does not specify an expiration date or a window of time during which a product is at its peak quality; or 2) is not accurate. this is because the law protects consumers from receiving misleading information. 2) willfully omits the name of the product, the size, the weight/content of clean or net, the composition, the rules of use, the date of manufacture, the name, and address of business actors, as well as any other information for use that, by the provisions, is required to be included on the label or in an explanation of the product. this includes any information that is required to be included on the label or in an explanation of the product. this is a breach of the norms that have been established. according to article 6 of law no. 8 of 1999, "during the process of creating and manufacturing goods, commercial players are expected to adhere to the rules governing the label to preserve the safety of customers and the integrity of the legal system." this provision was added to the law to ensure that commercial players would comply with the rules governing the label when creating and manufacturing products. explain the legal status of the most important players in the global economic system; 1) you have the legal right to be paid under contracts that control the state and/or exchange rates; 2) obtain legal protection against unethical action on the part of consumers; 3) the legislation that governs the resolution of consumer disputes includes provisions for self-defense, thus it is important to place attention on this aspect of the law. 4) if it can be shown in a court of law that the products and/or services that are being transacted do not do any harm to the consumers, then http://creativecommons.org/licenses/by-nc-sa/4.0/ 474 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia both parties may be able to rehabilitate themselves and restore their reputations. as a direct consequence of these rights, participants in the commercial sector are directly responsible for adhering to the requirements that are defined in article 7 of law no. 8 of 1999. the following conditions must be met: 1) act appropriately when working on set; provide information that is precise, forthright, and honest on the terms and circumstances of any warranties that apply to the products or services being purchased, as well as instructions on how to utilize, improve, and maintain it; 2) whenever a customer is obtaining goods or services, they should be handled in a manner that is fair, honest, and devoid of any bias; 3) will take measures to guarantee that products and/or services are made, traded, or delivered by the quality requirements applicable to the relevant goods and/or services; 4) provide consumers with the opportunity to test or try particular products or services, and provide consumers assurances or guarantees for products that are created or exchanged; 5) remuneration, payment, and/or compensation should be given in exchange for the use of traded products and/or services; 6) provide consumers the opportunity to try out certain products or services and to do so for free; 7) provide consumers the opportunity to try out certain products or services and to do so for free; 8) if the goods or services that you bought or used do not comply with the terms of the agreement, you are required to make amends by either paying compensation, giving compensation, or modifying the item that violated the contract in some way. on the other hand, it is planned that anyone who creates food and drinks or distributes food and drinks within the borders of indonesia will be able to receive a guarantee of legal protection and assurance. this will be possible because of the indonesian food and drug administration (pusat perawatan kesehatan). this is done so that the food and beverage http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 475 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia business is held to the highest possible standards. trading in food and drinks in a way that is both ethical and responsible serves more than only the goal of safeguarding the interests of customers who purchase food and beverages. this is only one of the numerous advantages that may be gained as a result of participating in this kind. this is because it is anticipated that owners of major as well as smaller companies that participate in the food industry will be able to distribute and trade their food items to all regions of indonesia with assurances that they will do so honestly and with the ability to account for their purchases. the reason for this is anticipated that owners of major as well as smaller companies that participate in the food industry will be able to do so. the reason for this anticipation is because it is anticipated that proprietors of significant as well as smaller businesses that are involved in the food sector will be able to the key factor that contributes to this notion is the presence of both large companies and enterprises that are on a smaller scale but actively participating in the food industry. consumers in the united states of america or any other nation who intend to purchase food and beverages are required to read the labels of the items they intend to purchase with extreme caution. the information that the manufacturer wants the person who will eventually buy the things to know is placed on the label. this information is intended for the person who will buy the items. when a consumer is considering whether or not to make a purchase, it is in the consumer's best interest to have as much information as possible shown on the product label. business actors (producers) and business actors linked with the circulation of food and drink are required to provide customers with clear information to facilitate the consumers' ability to make educated decisions about the consumption of food and drink. this is done to ensure that customers can make informed decisions about the consumption of food and drink. the purpose of this stipulation is to guarantee that consumers can make well-informed decisions about the use of ingestible goods like food and drink. http://creativecommons.org/licenses/by-nc-sa/4.0/ 476 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. business actors' contractual responsibilities it appears that business actors, including household industry business actors, are given more credit for acting in good faith in the law of the republic of indonesia number 8 of 1999 concerning consumer protection because it covers all phases of carrying out their business activities. as a result, it can be interpreted that business actors' obligation to act in good faith begins when goods are designed or produced and continues through the after-sales stage, while consumers are only required to: this is undoubtedly a result of the likelihood of customer losses beginning with the items created or generated by producers or other business players, as well as the opportunity for consumers to injure producers beginning with their interactions with producers. it is possible to circulate food or beverages that do not fulfill the health standards, namely: safe, quality, and nutritious, in connection with the manufacturing of home goods and beverages that are readily available on the market. particularly if the food they make results in both losses to human health and the death of those who consume it, every individual who produces food that is circulated needs to bear the weight of accountability. consumer losses, whether in the form of health issues or fatalities brought on by ingesting hazardous or harmful food items, are solely the responsibility of producers or business players. according to article 41 paragraph (1) of law no. 7 of the republic of indonesia concerning food, if a food product causes losses to customers, there must be a party accountable for the product's safety. in other words, it is the producer's responsibility to provide accountability. the law of the republic of indonesia number 7 of 1996's article 41, paragraph 4, which states that "in addition to the provisions referred to in paragraph (3), in the event that the business entity and or people in the business entity can prove that this is not due to his mistakes, the business entity and or individuals in the business entity are not required to compensate for losses," also lays out the foundation for the producer's responsibility. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(4) 2022 477 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia consumer losses, whether in the form of health issues or fatalities brought on by ingesting food and beverage goods that are toxic or harmful, are entirely the responsibility of business actors in the case of a loss of food items intended for consumers. the targeted compensation may take the shape of health care services, payments to injured customers or their heirs, or agreements between the parties. legal repercussions include the withdrawal of food products and beverages, the destruction of food and beverages if they are found to be dangerous to human health or life, and the revocation of production permits or business licenses against household industry food and beverage businesses that are proven to have violated the law by using harmful substances in the production process. conclusion this paper concluded that the goal of consumer protection is to provide a sense of security, clarity, and legal parity between producers and consumers. according to article 3 of uupk 8 of 1999 (indonesian consumer protection law), which may be defined as follows, the goal of consumer protection is to: (1) increased self-defense knowledge, skills, and independence among consumers, (2) enhancing the worth and dignity of customers by protecting them from harmful overuse of products or services, (3) increased consumer empowerment in terms of deciding what products to buy and claiming their legal rights, and (4) establishing a consumer protection system including components of information disclosure, legal certainty, and access to information. according to law no. 8 of 1999 about consumer protection, there are two options for resolving consumer disputes: through the courts or outside of them through the quick fulfillment of requests for compensation through the consumer dispute settlement agency (bpsk). http://creativecommons.org/licenses/by-nc-sa/4.0/ 478 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references afifah, hana. “tinjauan hukum islam terhadap perlindungan konsumen pasca layanan service (studi kasus di samsung service center purwokerto).” thesis, iain purwokerto, 2019. asikin, zainal, et.al. pengantar hukum perusahaan. jakarta: prenadamedia group, 2017. asmara, i wayan gede, i nyoman sujana, dan ni made puspasutari. “perlindungan hukum terhadap hak konsumen atas informasi produk import.” jurnal analogi hukum 1, no. 1 (2019): 120–124. bachtiar. metode penelitian hukum. diedit oleh yanto, oksidelfa. fiat justisia jurnal ilmu hukum. pamulang,tangerang selatan: unpam press, 2018. ibrahim, johnny. teori dan metodologi penelitian hukum normatif. malang: bayu media, 2018. nababan, roida, jinner 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terhadap produk makanan kadaluarsa di kota batam.” journal of law and policy transformation 5, no. 1 (2020): 85–112. surinda, youky. “konsep tanggung jawab menurut teori tanggung jawab dalam hukum.” online. susanti, heni. “studi eksplorasi perilaku konsumen dalam membuat keputusan pembelian anjing ras di kennel d.i yogyakarta.” thesis, universitas atmajaya yogyakarta, 2018. triwulan, titik, and shinta febrian. perlindungan hukum bagi pasien. jakarta: prestasi pustaka, 2010. wildawati, riska. “perlindungan konsumen atas peredaran makanan tanpa izin ditinjau dari undang-undang no. 8 tahun 1999.” thesis, universitas islam kalimantan, banjarmasin, 2021. wiyono, tri sulismuji. “perlindungan hukum konsumen terhadap produk pangan yang mengandung bahan berbahaya.” jurnal ilmu hukum alethea 4, no. 1 (2020): 21–40. acknowledgment thank you for mr dr. darminto hartono paulus s. h,. ll.m (universitas diponegoro, semarang, indonesia) for his invaluable support and feedbacks for this research and formulating this paper. first author as the provide main idea and concept, finding data and analyzed the data. second author provide some improvements concerning to the concept and theories, as well as supervise the research funding information none http://creativecommons.org/licenses/by-nc-sa/4.0/ 480 journal of law & legal reform volume 3(4) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conflicting interest statement the authors stated that there is no conflict of interest in the publication of this article. publishing ethical and originality statement the author stated and declared that all sources cited in this work adhere to the fundamental norms of scientific quotation, and that this work is entirely original and has never been published in any format or media or been accepted for publication in any journal. about author(s) lilia rosa siti nurjanah, was born in wonosobo on january 31, 1998. she graduated from bachelor of law, semarang state university, and continued the master of law postgraduated (s2) at the faculty of law, diponegoro university, semarang. curretly, she works as an advocate at law office nh&co in semarang. she finished the study while working. in carrying out has profession, there are several problems that have been resolved, including bankruptcy cases and delays in paying debt obligations, inheritance, crime and etc. darminto hartono, s.h., ll.m, born on august 1, 1960. he is a lecturer at the faculty of law, university of diponegoro. he is known expert on capital markets, bankruptcy and tax law. he is a graduate of harvard university. he is currently to continue his studies at harvard university to get a doctorate. http://creativecommons.org/licenses/by-nc-sa/4.0/ attention required! | cloudflare please enable cookies. sorry, you have been blocked you 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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: 7fbf23cdbd6920cd • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 3(2) 2022 215 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia volume 3 issue 2, april 2022 editor in chief: assoc. prof. dr. indah sri utari, s.h., m.hum universitas negeri semarang, indonesia associate editors: prof. ngboawaji daniel nte, ph.d. novena university, nigeria assoc. prof. frankie young, ph.d. university of ottawa, canada issn (print): 2715-0941 issn (online): 2715-0968 history of article submitted: february 27, 2021 revised: march 22, 2022 accepted: april 21, 2022 available online since: april 30, 2022 how to cite: candra, achmad beni. 2022. “implications of changing the terminology of a contract of work to a mining business permit for mineral and coal mining”. journal of law and legal reform 3, no. 2 (2022): 215-242. https://doi.org/10.15294/jllr.v3i2.55214. © 2022 authors. this work is licensed under a attributionnoncommercial-sharealike 4.0 international (cc by-nc-sa 4.0). 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. this title has been indexed by science & technology index (sinta 3), directory open access journal, google scholar, and garuda type: research article implications of changing the terminology of a contract of work to a mining business permit for mineral and coal mining achmad beni candra advocate at law office a.b. law & partners  alkhawarizmicandra@gmail.com abstract the existence of a paradigm that has changed from being young to investing has created various opinions on law number 3 of 2020 concerning minerals and coal. so, it is necessary to make a comprehensive study that examines the implications of changing the terminology of a http://creativecommons.org/licenses/by-nc-sa/4.0/ https://scholar.google.co.id/citations?user=yyrfqzyaaaaj&hl=id&oi=ao https://scholar.google.co.id/citations?hl=id&user=vnlmc58aaaaj https://indigenous.uwo.ca/faculty/frankie-young.html https://indigenous.uwo.ca/faculty/frankie-young.html http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf https://doi.org/10.15294/jllr.v3i2.55214 https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://creativecommons.org/licenses/by-nc-sa/4.0/ https://sinta.kemdikbud.go.id/journals/detail?id=8405 https://doaj.org/toc/2715-0968 https://doaj.org/toc/2715-0968 https://scholar.google.co.id/citations?hl=id&authuser=2&user=dqjnpkgaaaaj https://garuda.kemdikbud.go.id/journal/view/16931 https://orcid.org/0000-0001-6847-2846 216 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia contract of work to a mining business permit (iup). for this reason, researchers can formulate two problem formulations, first, how are the differences between contracts of work and mining business permits (iup) in indonesia. second, what are the implications of changing the contract of work into a mining business permit (iup) for mineral and coal mining in indonesia. this research is normative juridical research using a statutory approach and a conceptual approach. the results show that the term contract of work has a long history with changing regulatory concepts, where in law number 3 of 2020 there is a cut in regional authority, as well as a change in the contract of work regime which was changed to a mining business permit regime. these changes also have implications for the economic, social, cultural, and environmental sectors. therefore, the central government must be able to ensure that these changes are also able to have a positive impact on the welfare of the people in the region, both economic, social and cultural welfare in the region. keywords: terminology; contract of work; mining license; impact introduction the earth and water and the natural resources contained therein are controlled by the state and used for the greatest prosperity of the people. that is the sound of article 33 paragraph (3) of the 1945 constitution which was ratified on saturday, august 18, 1945. as the supreme law, the 1945 constitution must be used as a guide in the administration of a country, not least in the administration and management of natural resources. existing in indonesia. the purpose of the formation of the law is to optimally protect the economic interests of the people and the strategic interests of the nation and be able to become a catalyst for the welfare of the people. as a country that is geographically located in the tropics and surrounded by many volcanoes, it is not wrong if then indonesia has a lot of natural wealth, both on land and in the ocean. therefore, if the abundant http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 217 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia natural wealth can be managed properly by the government, then indonesia can become one of the world's economic powers. reflecting on japan, which after its defeat in the second world war suffered many losses and severe environmental damage due to the atomic bombs dropped by the allies, has now transformed into one of the world's economic powers that are respected by various countries. it is not impossible if indonesia is also capable and even has the potential to exceed what has been achieved by japan at this time with the various advantages possessed by indonesia. in terms of energy resources, indonesia has three types of fossil energy resources that can be utilized for national energy needs, namely oil, natural gas, and coal. based on data released by the central statistics agency (bps) the quantity of fossil energy resource stocks owned by indonesia at the end of 2014 and 2018 in terms of oil and coal resources that are classified as class a experienced an increase in-stock quantity. meanwhile, class a natural gas resources decreased by 9.21 percent. this condition is also not only for class a resources, natural resources belonging to class b, namely resources that have the potential to be exploited commercially also experience a decrease in-stock quantity. not only natural gas, but class b oil resources also experienced a decrease in stock, and only coal resources experienced an increase in stock for the b class. this can be seen in table 1. table 1 year-end stock of energy resources in indonesia by class (physical unit), 2014 and 2018 source: central bureau of statistics (bps) http://creativecommons.org/licenses/by-nc-sa/4.0/ 218 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia from a monetary perspective, there have been significant changes to the composition of mineral and energy resource values between 2014-2018. in this case, coal resources have increased quite sharply. in 2014, coal resources had a monetary value of 38 percent of the total energy resources. but in 2018 the value was almost 60 percent. this condition can be seen in table 2. table 2 proportion of monetary value of indonesian mineral assets, 2014 and 2018 source: badan pusat statistik (bps) this fact shows that the value of natural wealth owned by indonesia is still large enough to be used as a catalyst for development. however, this can only be achieved if the management system is fully aimed at the interests of the nation and state. for this reason, it is necessary to have an optimal, effective and efficient management system so that it can encourage and support the development, as well as the independence of the development of an independent national industry based on mineral resources and/or coal energy. however, in its development, the existing http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 219 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia legal basis, namely law number 4 of 2009 concerning mineral and coal mining and its implementing regulations, still cannot answer the problems and actual conditions in the implementation of the mineral and coal mining business, including cross-sectoral problems between the mining sector and the mining sector non-mining. in all, mining cities have made a substantial contribution to the development of the world economy through supplying minerals, but due to the intertwined social, economic, and environmental issues, they are faced with serious hinders and challenges toward sustainable development.1 therefore, a new law was issued, namely law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning mineral and coal mining. on this legal basis mining business is an activity within the framework of mineral or coal exploitation which includes the stages of general investigation, exploration, feasibility study, construction, mining, processing and or refining or development and/or utilization, transportation, and sales, as well as post-mining activities which are then contracted works are also regulated in the law. the contract of work or what is often abbreviated as kk is an agreement between the government and an indonesian legal entity company that acts to carry out mineral mining business activities. in its implementation, the contract of work as stated in law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning mineral and coal mining reaps many pros and cons. some people believe that the changes in law number 3 of 2020, night has liberalized indonesia's economic wealth which should be used for the full interest of the nation and state to foreign parties. this of course would be contrary to article 33 paragraph (1) of the 1945 constitution which states that the national economy is structured as a joint effort based on the principle of kinship. this principle is a collective principle (togetherness) that can be interpreted in the present context, namely brotherhood, humanism, and humanity. this means that the economy is 1 jiaqi guo wenting jiao, xiaosen zhang, changhong li, “sustainable transition of mining cities in china : literature review and policy analysis,” resources policy xxx, no. xxxx (2020): xxx, https://doi.org/https://doi.org/10.1016/j.resourpol.2020.101867. http://creativecommons.org/licenses/by-nc-sa/4.0/ 220 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia not seen as a form of liberal competition that is left to the western-style market mechanism, but there are moral nuances and similarities in it. on the other hand, some parties argue that the changes that occur in law number 3 of 2020 will be able to accommodate the interests of the nation and state, especially in the management and utilization of mineral and coal natural resources. as vale stated, "this mining project is important to the economy of the region due to its potential for income generation, job creation, and high iron ore production with environmentally friendly conditions compared to previous mining projects in the region."2 in the case of mineral and coal mining contracts of work where changes seem forced during the covid-19 pandemic, various speculations have arisen. in article 169a paragraph (1) law number 3 of 2020 concerning minerals and coal states that "kk and pkp2b as referred to in article 169 are guaranteed an extension to iupk as continuation of contract/agreement operations after fulfilling the requirements with the following conditions: a. contracts/agreements that have not yet received an extension are guaranteed to receive 2 (two) extensions in the form of iupk as continuation of operations for each contract/agreement for a maximum period of 10 (ten) years as a continuation of operations after the expiration of the kk or pkp2b by considering efforts to increase revenue country. b. contracts/agreements that have obtained the first extension are guaranteed to be given a second extension in the form of an iupk as a continuation of contract/agreement operations for a maximum period of 10 (ten) years as a continuation of operations after the expiration of the first extension of kk or pkp2b taking into account efforts to increase state revenues. the changing paradigm of youth investing which seems to weaken state sovereignty in the management of natural resources, especially on 2 vale, “code of ethical conduct,” accessed july 15, 2021, http://www.vale.com/sitecollectiondocuments/ codigoetica/assets/docs/en_codigocondutaetica_vf.pdf. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 221 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia mineral and coal resources, creates various views and opinions on law number 3 of 2020 concerning mineral and coal. based on the above thoughts, it is necessary to make a comprehensive study that examines the implications of changing the terminology of a contract of work to a mining business permit (iup) in law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning mineral and coal mining. for this purpose, the researcher can formulate two problem formulations, first, what are the differences between a contract of work and a mining business permit (iup) in indonesia. method this research is normative juridical research using a statutory approach and a conceptual approach.3 while the conceptual approach is carried out by examining all the views and doctrines that develop in the science of law, especially civil law so that researchers will be able to find ideas that give birth to legal definitions, legal concepts, and concepts. legal principles about mineral and coal mining contracts of work. by using this approach, in the end, the researcher can analyze the principle of the contract of work in the legislation (law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning mineral and coal mining), as well as being able to analyze the impact of the contract of work on mining. minerals and coal in indonesia. in this study, the primary legal material used is law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning mineral and coal mining and the civil code (kuh perdata), along with its implementing regulations. while secondary legal materials are obtained from journals, books, jurisprudence (legal decisions), and articles related to mineral and coal mining contracts of work. 3 peter mahmud marzuki, penelitian hukum, edisi revi (jakarta: pernadamedia group, 2005). p. 83. http://creativecommons.org/licenses/by-nc-sa/4.0/ 222 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the data collection method used in this study uses the method of documentation (documentary) (burhan bugin, 2001: 152). the documentation method is a data collection technique that is not directly shown to the research subject. this document is in the form of written legal materials and objects related to a particular activity/event. the documents used in this regulation are statutory regulations, opinions of legal experts (doctrine), journals, and articles related to the contract of work. the data analysis technique used is content analysis, with the assumption that the analysis always displays three conditions, namely objectivity, systematic approach, and generalization. results & discussion i. contract of work arrangements a. history of contract of work arrangements the journey of the current contract of work regulatory system in indonesia, which has been changed to the terminology of mining business permits, has experienced various dynamics in its journey. the laws and regulations governing contracts of work can be reviewed and read in the following various laws and regulations: 1. law number 1 of 1967 concerning foreign investment in conjunction with law number 11 of 1970 concerning amendments and supplements to law number 1 of 1967 concerning foreign investment. 2. law number 6 of 1968 concerning domestic investment in conjunction with law number 12 of 1970 concerning amendments and supplements to law number 6 of 1968 concerning domestic investment. 3. article 10 of law number 11 of 1967 concerning basic mining provisions. 3 things are regulated in article 10 of law number 11 of 1967 concerning basic mining provisions, namely: a. the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 223 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia government/minister can appoint contractors to carry out work related to exploration and exploitation; b. the agreement is stated in the form of a work contract; c. the momentum of the agreement after being ratified by the government. in article 1 of the decree of the minister of mining and energy number 1409.k/201/m.pe/1996 concerning procedures for processing the granting of mining authorizations, principle permits, contracts of work and coal mining concession work agreements, it has been determined that the contract of work (kk) is "an agreement between the government of the republic of indonesia and a foreign private company or a joint venture between foreign and national (in the context of pma) for mineral exploitation by referring to law no. 1 of 1967 concerning foreign investment and law no. 11 of 1967 concerning provisions". general mining principles". furthermore, in article 1 number 1 decree of the minister of energy and mineral resources number 1614 of 2004 concerning guidelines for processing applications for contracts of work and coal mining concession work agreements in the context of foreign investment. in that provision, it is called the definition of a contract of work. contract of work (cow) is an "agreement between the indonesian government and a company incorporated as an indonesian legal entity in the context of foreign investment to carry out the mining business of minerals, excluding petroleum, natural gas, geothermal, radioactive, and coal". 4. law number 4 the year 2009 concerning mineral and coal mining. 5. in this law, there are main adjustments that become the strength for the regulation of the coal mining business model, namely the provisions regarding the licensing model. in the previous law, the business model applied was still using the contract regime. meanwhile, law 4 of 2009 uses a business license regime. since 2009 this has begun to change the term contract of work becomes a mining business permit (iup). as the implementing regulation, government regulation no. 23 of 2010, which was later amended by government regulation no. 24 of 2012 and government regulation no. 1 of 2017. http://creativecommons.org/licenses/by-nc-sa/4.0/ 224 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia in the provisions of the 2017 pp, the terminology of the contract of work began to be changed to a special mining business permit (iupk). 6. changes to the contract of work arrangement will then occur again. in-law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning mineral and coal mining, it is stated that a contract of work is an agreement between the government and an indonesian legal entity company to carry out mineral mining business activities. the various changes in the arrangement of the contract of work are inseparable from the dynamics of legal politics in indonesia. for example, since the issuance of government regulation no. 1 of 2017 which requires that contract of work (kk) holders change their status to special mining business permits (iupk) to export concentrates (minerals that have been processed but have not yet reached the refining stage). if the use of the contract of work regime is still used, the state does not even have a bargaining position to regulate the legal relationship between mining companies and natural resources owned by the state. not to mention related to the issue of royalties which seem to castrate the sovereignty of the state in the management of its natural resources. moreover, it is also possible that maintaining the concept of a contract of work, will only enrich mining companies and impoverish the country with disproportionate fees for services. the use of licensing terminology will give the state a higher position, where the state plays a role in granting permits to miners who have met the criteria and requirements to carry out mining activities. in this context, the state is not present as a direct implementer or manager. however, it only performs supervisory and management functions by granting permission to other parties to carry out mining management. this has implications for the management function (beheersdaad) as mandated by the constitution cannot be implemented. therefore, a strategic reflection of what china is doing through several approaches. they derived three main policy approaches to diversify economic structure, including extended industry, substitute industry, and circular economy. through http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 225 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia two case studies, they concluded that an innovation-driven development strategy and the incorporation of a shrinkage plan with balanced considerations of economic, environmental, and social issues are crucial in policymaking.4 with this change, it is expected to be able to prosper the people as mandated by article 33 paragraph (3) of the 1945 constitution, "earth, water and natural resources contained therein are controlled by the state and used as much as possible for the prosperity of the people". this effort to improve the welfare of the people is also elaborated in article 2 paragraph (2) of the bal where the scope of the state's right to control includes: a) regulating and administering the allocation, use, supply, and maintenance of the earth, water, and space; b) determine and regulate legal relations between people and the earth, water, and space; c) determine and regulate legal relationships between people and legal relationships concerning the earth, water, and space. efforts to control the state over its natural resources are also a form of state protection against state interests. as stated by ruggie "on the other hand, embedded liberalism also allowed states sufficient discretion in domestic policymaking to cushion their economies and citizens from the more adverse effects of international liberalization."5 this is inseparable from the role of the state for the welfare of the people as stated by richard a posner6 who stated that: "...as for the positive role of economic analysis of law, the attempt to explain legal rules and outcomes as they are rather than to change them to make them better". according to the point of view of positivism is to explain the rules of law and its goal of change for the better. furthermore, the efficiency theory of common as a system to maximize the wealth of society is added. this 4 wenting jiao, xiaosen zhang, changhong li, “sustainable transition of mining cities in china : literature review and policy analysis.” p. 7 5 jeffrey mcgee and jens steffek, “the copenhagen turn in global climate governance and the contentious history of differentiation in international law,” journal of environme ntal law 28 (2016): 37–63, https://doi.org/doi: 10.1093/jel/eqw003. 6 darminto hartono, economic analysis of law atas putusan kppu tetap (jakarta: fakultas hukum ui, lembaga study hukum dan ekonomi, 2009). 18. http://creativecommons.org/licenses/by-nc-sa/4.0/ 226 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia analysis is oriented towards efficiency which in principle improves the welfare of the community. another opinion was also expressed by jeremy bentham who stated that the purpose of the law is to provide the greatest benefit and happiness to as many citizens as possible. so, the concept puts benefit as the main goal of the law. the measure is the greatest happiness for as many people as possible. assessment of good or bad, fair or not this law depends on whether the law can give happiness to humans or not. the benefit is defined the same as happiness. b. concept of contract of work and mining business permit referring to article 1 letter 6a of law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning mineral and coal mining it is stated that a contract of work is an agreement between the government and an indonesian legal entity company to carry out mineral mining business activities. contract (contract, contract) can also be called an agreement. however, according to subekti, the definition of a contract is narrower than an agreement because a contract requires that it is always in written form, while an agreement other than in writing can be done orally. therefore, contract law is a species of contract law.7 generally, in the mining sector, the term contract of work is known. the term contract of work is a translation from english, namely the word work of contract or it can be interpreted that foreign capital cooperation in the form of a contract of work occurs when foreign investment forms an indonesian legal entity and this legal entity cooperates with a legal entity that uses national capital.8 a different opinion was conveyed by suharyati hartono who stated that a contract of work is a contract between the government of indonesia and a company with an indonesian legal entity, to carry out the mining business of 7 s abrar, hukum pertambangan (yogyakarta: uii press, 2004). 8 h. s salim, hukum pertambangan di indonesia (jakarta: raja grafindo persada, 2005). 63. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 227 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia minerals. meanwhile, according to nanang sudrajat, the definition of a contract of work is the legality of exploitation of minerals intended for foreign investors, through foreign investment (pma) facilities.9 in article 1 of the decree of the minister of mining and energy number 1409.k/201/m.pe/1996 concerning procedures for processing the granting of mining authorizations, principle permits, contracts of work and coal mining concession work agreements, the definition of a contract of work (kk) is an agreement between the government of the republic of indonesia and a foreign private company or a foreign and national joint venture (in the context of pma) for mineral exploitation.10 referring to this definition, a contract of work is constructed as an agreement. where the subject of the agreement is the government of indonesia with foreign private companies or joint ventures between foreign companies and national companies. the object is mineral exploitation. another definition of a contract of work can be read in article 1 point 1 of the decree of the minister of energy and mineral resources 1614 no. 2004 concerning guidelines for processing applications for contracts of work and coal mining concession agreements in the context of foreign investment. in this provision, the contract of work (cow) is an agreement between the government of indonesia and an indonesian legal entity in the context of foreign investment to carry out the mining business of minerals, excluding oil, natural gas, geothermal, radioactive and coal. according to salim, the definition of a contract of work needs to be refined so that what is meant by a contract of work is an agreement made between the indonesian government and a foreign contractor solely and/or a joint venture between domestic legal entities to carry out exploration and exploitation activities in the general mining sector, under the terms time agreed upon by both 9 n.sudrajat, teori dan praktik pertambangan indonesia (yogyakarta: pustaka yustisia, 2013). 67 10 n trihastuti, hukum kontrak karya: pola kerjasama pengusahaan pertambangan indonesia (malang: setara press, 2013). 50. http://creativecommons.org/licenses/by-nc-sa/4.0/ 228 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia parties.11 so that can be described the substantive elements of the contract of work in the form of: 1. the existence of a contractual, namely an agreement made by the parties; 2. the existence of legal subjects, namely the government of indonesia/regional government (province/district/city) with foreign contractors solely and/or groups between foreign parties and indonesian parties; 3. the existence of objects, namely exploration and exploitation; 4. in the general mining sector, and 5. there is a period in the contract.12 permits are one of the most widely used instruments in administrative law, to guide the behavior of citizens.13 apart from this definition, licensing can also be defined as a dispensation permit or release/exemption from a prohibition. referring to article 1 point 7 states that a mining business permit, hereinafter referred to as iup, is a permit to carry out a mining business. referring to the terminology of licensing, it can be interpreted that licensing is the granting of legality to a person or business actor/certain activity, either in the form of a license or a business registration certificate. as for the definition of mining business as referred to in article 1 point 6, namely "mining business is an activity in the context of mineral or coal control which includes the stages of an investigation, exploration, feasibility study, construction, mining, management and purification of transportation and sales as well as post-mining". so it can be concluded that the meaning of mining business permit (iup) in its entirety is a permit for carry out activities in the context of mineral or coal exploitation which include the stages of general investigation activities (knowing regional geological conditions and indications of mineralization), exploration (activities to obtain detailed, accurate information about the shape, location, distribution, dimensions, 11 salim, hukum pertambangan di indonesia. 129. 12 ibid. 13 philipus and m.hadjon, pengantar hukum perizinan (surabaya: yuridika, 1993). 2. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 229 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia quality and measured resources from minerals and information on the social and environmental environment), feasibility studies (activities to obtain detailed information on all aspects related to determining the economic and technical feasibility of a mining business, including environmental impact analysis and post-mining planning), construction (activities to carry out mining of all facilities production operations, including environmental impact control), mining (activities to produce minerals and/or coal and their associated minerals), processing and refining (activities to improve the quality of minerals and/or coal and utilize and obtain associated minerals), transportation and sales (activities to transferring mineral mining products and/or selling these products), as well as post-mining (planned and systematic activities, and continuing after the end or part of mining business activities to restore natural environmental functions and social functions according to local conditions throughout the mining area. c. changes in contract of work arrangements to mining business permits the occurrence of dynamics in the regulation of contracts of work and mining business permits in indonesia is certainly based on several considerations, which with these changes also have implications for the regulatory system therein. these changes include cutting regional authority, which was originally regulated in law number 4 of 2009, which authorizes the issuance of mining permits by the provincial government as well as district and city governments, according to the location of the mine. however, law number 3 of 2020 removes the provisions of article 7 and article 8 in law number 4 of 2009, which regulates the authority of local governments in mining governance. article 6 of government regulation no. 23 of 2010 concerning the implementation of mineral and coal mining business activities stipulates that an iup is granted by the minister, governor, or regent/mayor by their respective authorities. iup is granted to: http://creativecommons.org/licenses/by-nc-sa/4.0/ 230 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. business entities, which can be in the form of private companies, state-owned enterprises, or regional-owned enterprises; 2. cooperatives; and 3. individuals, which can be individuals who are indonesian citizens, firm companies, or limited partnership companies. however, article 35 paragraph (1) of law number 3 of 2020 states "mining businesses are carried out based on a business license from the central government." furthermore, in paragraph (4) it is stated that "the central government may delegate the authority to grant business licenses as referred to in paragraph (2) to the provincial government by the provisions of the legislation. this change has implications for regional authorities in issuing permits in the mining sector. local governments are no longer able to issue permits for mining business activities. however, this change does not necessarily change the regional authority in terms of licensing. article 35 paragraph (4) of law number 3 of 2020 states that the central government can delegate the authority to grant business permits to the provincial government by the provisions of the legislation. in addition to changes to a regional authority. the contract of work regime was also changed to the mining business permit regime. in article 1 point 13bit is stated that "iupk as continuation of contract/agreement operation is a business license granted as an extension after the completion of the contract of work or concession of work agreement. coal mining. the article is re-elaborated in article 169a paragraph (1) which states "kk and pkp2b as referred to in article 169 are given a guarantee of extension to iupk as continuation of contract/agreement operations after fulfilling the requirements with the following conditions: a. contracts/agreements that have not yet received an extension are guaranteed to get 2 (two) extensions in the form of iupk as a continuation of operations for each contract/agreement for a maximum period of 10 (ten) years as a continuation of operations after the expiration of the kk or pkp2b by considering efforts to increase revenue country. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 231 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia b. contracts/agreements that have obtained the first extension are guaranteed to be given a second extension in the form of an iupk as a continuation of contract/agreement operations for a maximum period of 10 (ten) years as a continuation of operations after the expiration of the first extension of kk or pkp2b by considering efforts to increase state revenues. according to research conducted by rizkyana zaffrindra putri and lita tyesta a.l.w, the change in the authority to grant mining business permits (iup) was based on several reasons, namely: a. there are many legal irregularities in the licensing sector at the regency/city government level; b. low legal certainty and investment certainty for investors.14 d. implications of changing the terminology of a contract of work to a mining business license changes that occur in mineral and coal mining regulations have implications for the mining and the indonesian economy. the implications can cover the economic, social, cultural, and environmental sectors. this is also done by various countries. mining stakeholders around the world have grown increasingly wary of conventional approaches to mineral development, which at their worst have been associated with adverse environmental impacts, social and cultural disruption, and local economic instability. stakeholders now demand that companies align themselves more closely with the tenets of sustainable development, of which increased community participation in decision making is a central goal. the industry has in many cases responded positively to these demands, having recognized the old ways of doing business are no longer an option 14 lita tyesta a l w putri, rizkyana zaffrindra, “kajian politik hukum tentang perubahan kewenangan pemberian izin usaha pertambangan mineral dan batubara,” jurnal law reform 11, no. 2 (2015): 203. http://creativecommons.org/licenses/by-nc-sa/4.0/ 232 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia if the sector is to remain viable.15 in this case, there is a paradigm shift in the arrangement of the contract of work, which previously still used a pearto-pear contract of work regime and used the realm of private law. changed with the permit regime where the government has a better bargaining position than the contract of work regime. however, it must also be linear with the interests of the state as the main paradigm, not foreign interests. therefore, the law must be the commander-in-chief so that the state's sovereignty over its natural resources can be used for the greatest prosperity of the people. reflecting on the experience of the new order where the existence of the law was damaged by the authorities who defended the economic interests of developed countries and conglomerates and the interests of multinational corporations. for this reason, legal certainty and protection are needed for all parties,16 both the community and the state as well as foreign investors so that the benefits can be felt by all parties all of them have just realized the importance of legal authority to create a conducive economic climate and to attract investment. establishing the pancasila economic system as an indonesian economic system is not easy, because for hundreds of years we have consumed a liberal quality economic law system or served the interests of capitalist countries.17 the use of article 8 of law number 1 of 1967 concerning foreign investment stipulates that: (1) foreign investment in the mining sector is 15 b. barton, “underlying concepts and theoretical issues in public participation in resources development,” human rights in natural resource development: public participation in the sustainable development of mining and energy resources, 2002, 77– 119. 16 prita amalia putri, resha roshana, an-an chandrawulan, “peringkat arus investasi indonesia dalam kerangka asean-china free trade agreement (perbandingan dengan singapura, malaysia, thailand, dan vietnam) ditinjau dari prinsip fair and equitable treatment,” jurnal hukum & pembangunan 48, no. 2 (2018): 275, https://doi.org/http://dx.doi.org/10.21143/jhp.vol48.no2.1664. 17 adi sulistyono, “pembangunan hukum ekonomi untuk mendukung pencapain indonesia 2030,” in pidato pengukuhan guru besar hukum ekonomi pada fakultas hukum universitas sebelas maret surakarta (surakarta: universitas sebelas maret surakarta, 2007), 23. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 233 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia based on cooperation with the government based on a contract of work or another form by the applicable laws and regulations; and (2) the system of cooperation based on a contract of work or in other forms can be implemented in other business fields to be determined by the government. furthermore, in law number 11 of 1967 concerning the basic provisions of mining, the regulation in the pma law is emphasized by the existence of the same substance in article 10 of law no. 11 of 1967 which states: (1) the minister may appoint another party as a contractor if necessary to carry out works that have not been or cannot be carried out by the relevant government agency or state company as the holder of the mining authorization; (2) in entering into work agreements with contractors, government agencies or state companies must adhere to the guidelines, instructions, and conditions given by the minister; (3) the work agreement shall come into force after being ratified by the government after consulting with the house of representatives when it concerns the exploitation of class a as long as the minerals specified in article 13 of law no. 11 of 1967 and/or whose work agreement is in the form of foreign investment. from here, foreign parties can enter and carry out mining activities in indonesia. in the minerba law, the conditions for mineral and coal mining agreements are not limited to national or foreign companies, as long as the company is an indonesian legal entity, they are allowed to participate in mining activities. the dilemma begins to emerge when the state, as the owner of natural resources in indonesia, has a weak bargaining position for its natural wealth. in the contract of work pt. freeport, for example, the state only gets a revenue sharing of 1% (one percent), then based on government regulation number 9 of 2012 concerning types and tariffs of non-tax state revenues applicable at the ministry of energy and mineral resources, pt freeport's royalties changed to 3.75% (three-point seventyfive percent) for gold and silver, and copper. however, the state revenue that should have been obtained in 2013 was only paid by pt. freeport in 2014. here it can be seen that the sovereignty of the state looks weak in dealing with foreign companies. although currently pt freeport 51% http://creativecommons.org/licenses/by-nc-sa/4.0/ 234 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia shares have been controlled by pt indonesia asahan aluminum (inalum) which is a state-owned company. however, the realization of state revenues from pt freeport indonesia is still very far from the target set at the beginning of 2020. based on the data as reported by mining industry indonesia (mind id), as of may this year freeport's total contribution to the new country was us$ 117.6 million or 18 percent of the target planned in the 2020 budget work plan (rkab) of us$ 650.9 million. the change in the mining contract of work into a mining business permit is one of the state's efforts to protect its natural wealth. the principle of a market economy as the fruit of adam smith's thought, which forbids government intervention because the market is considered capable of mediating itself, needs to be reduced to a system based on pancasila economic principles in article 33 paragraph (1). this neoliberal view will not prosper the people as the legal owners of natural wealth in their country. but it only impoverishes the country and causes future environmental impacts. in a speech dated june 1, 1945 bung karno once said "if we truly understand, remember, and love the indonesian people, let us accept the principle of political equality and in the economic field we must establish equality, meaning good common welfare". bungkarno's school of thought related to "people's sovereignty" can also be explored in the preamble of the 1945 constitution, article 33 and its explanations, as well as articles 23, 27 paragraphs (2), 31 and 34, which can briefly mean that public goods and services must be controlled, regulated, is intended and utilized for the highest prosperity of the people at large, without any dictation by the market mechanism. historically, the issue of the struggle between the mercantilists who tried to protect national economic interests against the industrialists who refused to protect the state's wealth had existed since the early 19th century. where the climax point of this struggle for understanding is the struggle for markets and energy and production resources. the fruit of the failure of neo-classical understanding eventually gave birth to the notion of market liberalization and the birth of the washington consensus which can be summarized as (1) the prohibition of subsidizing the people and http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 235 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia financing the provision and management of public goods and services through the term fiscal discipline; (2) if the government is already involved in providing public services, then it must be sold to the private sector or what is known as privatization; and (3) liberalizing all economic sectors by imposing the principle of non-discrimination between foreign players and national players. according to the national bureau of economic research, 33 economic crises from 1854 to 2007 were caused by the failure of the neoliberal economy. in his study of political economy and development sociology, he stated that neoliberal economics has always faced failures in overcoming budgeting, poverty, and inequality. with the change in mining management in indonesia, which previously used a contract of work system and was updated with a mining business permit system, in this context the state is not present as a direct executor or manager. however, it only performs supervisory and management functions by granting permission to other parties to carry out mining management. the form of the contract of work, which is a standard agreement, should provide a greater share of profits and bargaining position to indonesia. it does not even provide a balanced bargaining position with mining companies. for example, in the case of pt freeport where according to prof. hikmahanto juhana the extension of freeport's contract of work ii carried out by the government of indonesia has not undergone much improvement to provide significant additional financial benefits for the indonesian side. the only changes that occur are in terms of share ownership and terms of taxation. meanwhile, the number of royalties did not change at all, although there has been a change in the number of gold reserves. the main goal of mining companies is nothing but exploitation of natural resources and subjugation of local people, both socio-culturally and economically-politically.18 as things stand, in most mining communities in developing countries, there is a level of 18 marulak pardede, “implementasi hukum kontrak karya pertambangan terhadap kedaulatan negara,” jurnal penelitian hukum de jure 18, no. 1 (2018): 17. http://creativecommons.org/licenses/by-nc-sa/4.0/ 236 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia dissatisfaction, disaffection, and destabilization.19 even a study conducted by bonita meyersfeeld said that "mining as an instrument of development and poverty reduction is indeed mythology".20 in addition to changing the terminology of the contract of work into a business license. other implications also arise in connection with the taking over of local government power in the administration of mining permits, which has implications for disaster risk mitigation in the regions. where the regions certainly understand more about the components of hazard (hazard), (vulnerabilities), and capacities (capacities) in each province and district/city within their jurisdiction. hazard components are natural phenomena that can cause disasters such as earthquakes, tsunamis, volcanic eruptions, floods, and others. the vulnerability components are (1) physical condition, (2) socio-cultural, (3) economic, and (4) vulnerable environment exposed to disasters. the presence of extractive industries such as mineral and coal mining also has an impact on non-natural risk factors, as well as on environmental changes due to extractive industries which have an impact on increasing vulnerability as well as the capacity of residents in dealing with disasters. according to a report released by the mining advocacy network (jatam) shows that the revision of law no. 4 of 2009 has now changed to law no. 3 of 2020 concerning minerals and coal shows that many changes in the minerba law and the job creation law and their derivative regulations have an impact on workers, the wider community and people in the closest circle of extractive investments. likewise, in the context of a disaster, some articles and paragraphs in the two regulations also increase the risk and vulnerability to living spaces, local ecosystems, and residents who are the target of investment.21 19 kolk and van tulder, “shell is a favourite example of exploitative business operations in the developing world,” n.d., 798. 20 meyersfeld and bonita, “empty promises and the myth of mining : does mining lead to pro-poor development ?,” business and human rights journal 2, no. 2013 (2006): 31– 53. 21 zamzami arlinus merah johansyah, ahmad saini, ahmad ashov birry melky nahar, “bencana yang diundangkan: bagaimana potret awal investasi ekstraktif http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 237 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia contemporary use in mining links social license to perceptions that locallyimpacted communities hold about a company's activities and the impact those activities have on local culture, environment, economy, and livelihoods. therefore, efforts to grant permits must also find a point of equilibrium between understanding that local perceptions or responses can determine a company's ability to access land, water, and other financial and human resources for mineral exploration, extraction, and processing and transfer to markets.22 conclusion changes to the terms of the contract of work. a contract of work is defined as an agreement made between the government of indonesia and a foreign contractor solely and/or a joint venture between domestic legal entities to carry out exploration and exploitation activities in the general mining sector, by the period agreed by both parties. referring to article 1 letter 6a of law number 3 of 2020 concerning amendments to law number 4 of 2009 concerning mineral and coal mining it is stated that a contract of work is an agreement between the government and an indonesian legal entity company to carry out mineral mining business activities. according to salim, the definition of a contract of work needs to be refined so that what is meant by a contract of work is an agreement made between the indonesian government and a foreign contractor solely and/or a joint venture between domestic legal entities to carry out exploration and exploitation activities in the general mining sector, by the terms time agreed upon by both parties. so that can be described the substantive elements of the contract of work in the form of: energy kotor dan keselamata rakyat dikawasan resiko bencana indonesia,” seri pertama (jakarta selatan baca selengkapnya di artikel: home https://www.jatam.org/en, 2021).36. 22 deanna kemp john r. owen n, “social licence and mining: a critical perspective,” resources policy, 2012, 3, https://doi.org/http://dx.doi. org/10.1016/j.resourpol.2012.06.016. http://creativecommons.org/licenses/by-nc-sa/4.0/ 238 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 1. the existence of a contractual, namely an agreement made by the parties; 2. the existence of legal subjects, namely the government of indonesia/regional government (province/district/city) with foreign contractors solely and/or groups between foreign parties and indonesian parties; 3. the existence of objects, namely exploration and exploitation; 4. in the general mining sector, and 5. there is a period in the contract. permits are one of the most widely used instruments in administrative law, to guide the behavior of citizens. apart from this definition, licensing can also be defined as a dispensation permit or release/exemption from a prohibition. referring to article 1 point 7 states that a mining business permit, hereinafter referred to as iup, is a permit to carry out a mining business. so it can be concluded that the meaning of mining business permit (iup) in its entirety is a permit to carry out activities in the context of mineral or coal exploitation which includes the stages of general investigation activities (knowing regional geological conditions and indications of mineralization), exploration (activities to obtain detailed information, careful about the shape, location, distribution, dimensions, quality and measurable resources of the excavated materials as well as information on the social and environmental environment), feasibility studies (activities to obtain detailed information on all related aspects to determine the economic and technical feasibility of a mining business, including environmental impact analysis and post-mining planning), construction (activities to carry out mining of all production operating facilities, including environmental impact control), mining (activities to produce minerals and/or coal and associated minerals), mining processing and refining (activities to improve the quality of minerals and/or coal and utilize and obtain associated minerals), transportation and sales (activities to move mineral and/or selling products), and post-mining (planned and systematic activities, and continue after end or part of mining business activities to restore the http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 239 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia natural environment and social functions according to local conditions of the entire mining area. the emergence of changes in terminology in the regulation of coal mining in indonesia also has implications for various regulations in it. these changes include cutting regional authority, which was originally regulated in law number 4 of 2009, which authorizes the issuance of mining permits by the provincial government as well as district and city governments, according to the location of the mine. however, law number 3 of 2020 removes the provisions of article 7 and article 8 in law number 4 of 2009, which regulates the authority of local governments in mining governance. in addition to changes to a regional authority. the contract of work regime was also changed to the mining business permit regime. article 1-point 13b states that "iupk as continuation of contract/agreement operation is a business license granted as an extension after the completion of the contract of work or coal mining concession work agreement. the article is re-elaborated in article 169a paragraph (1) which states "kk and pkp2b as referred to in article 169 are guaranteed an extension to iupk as continuation of contract/agreement operations after fulfilling the requirements with the provisions. in addition to these implications, other impacts arise after the change in terminology on the substance of the regulations contained therein. other implications also arise in the form of impacts on the economic, social, cultural, and environmental sectors. mining stakeholders around the world have grown increasingly wary of conventional approaches to mineral development, which at their worst have been associated with adverse environmental impacts, social and cultural disruption, and local economic instability. stakeholders now demand that companies align themselves more closely with the tenets of sustainable development, of which increased community participation in decision making is a central goal. the industry has in many cases responded positively to these demands, having recognized the old ways of doing business are no longer an option if the sector is to remain viable. http://creativecommons.org/licenses/by-nc-sa/4.0/ 240 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia references abrar, s. hukum pertambangan. yogyakarta: uii press, 2004. adi sulistyono. “pembangunan hukum ekonomi untuk mendukung pencapain indonesia 2030.” in pidato pengukuhan guru besar hukum ekonomi pada fakultas hukum universitas sebelas maret surakarta, 23. surakarta: universitas sebelas maret surakarta, 2007. b. barton. “underlying concepts and theoretical issues in public participation in resources development.” human rights in 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birry melky nahar, zamzami arlinus. “bencana yang diundangkan: bagaimana potret awal investasi ekstraktif energy kotor dan keselamata rakyat dikawasan resiko bencana indonesia.” seri pertama. jakarta selatan baca selengkapnya di artikel: home https://www.jatam.org/en, 2021. meyersfeld and bonita. “empty promises and the myth of mining : does mining lead to pro-poor development ?” business and human rights journal 2, no. 2013 (2006): 31–53. n.sudrajat. teori dan praktik pertambangan indonesia. yogyakarta: pustaka yustisia, 2013. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 3(2) 2022 241 © author(s). this work is licensed under a creative commons attribution – non commercial share a like 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia peter mahmud marzuki. penelitian hukum. edisi revi. jakarta: pernadamedia group, 2005. philipus, and m.hadjon. pengantar hukum perizinan. surabaya: yuridika, 1993. putri, resha roshana, an-an chandrawulan, dan prita amalia. “peringkat arus investasi indonesia dalam kerangka asean-china free trade agreement (perbandingan dengan singapura, malaysia, thailand, dan vietnam) ditinjau dari prinsip fair and equitable treatment.” jurnal hukum & pembangunan 48, no. 2 (2018): 275. https://doi.org/http://dx.doi.org/10.21143/jhp.vol48.no2.1664. putri, rizkyana zaffrindra, lita tyesta a l w. “kajian politik hukum tentang perubahan kewenangan pemberian izin usaha pertambangan mineral dan batubara.” jurnal law reform 11, no. 2 (2015): 203. salim, h. s. hukum pertambangan di indonesia. jakarta: raja grafindo persada, 2005. trihastuti, n. hukum kontrak karya: pola kerjasama pengusahaan pertambangan indonesia. malang: setara press, 2013. vale. “code of ethical conduct.” accessed july 15, 2021. http://www.vale.com/sitecollectiondocuments/ codigoetica/assets/docs/en_codigocondutaetica_vf.pdf. wenting jiao, xiaosen zhang, changhong li, jiaqi guo. “sustainable transition of mining cities in china : literature review and policy analysis.” resources policy xxx, no. xxxx (2020): xxx. https://doi.org/https://doi.org/10.1016/j.resourpol.2020.101867. acknowledgment none funding information none conflicting interest statement the authors states that there is no conflict of interest in the publication of this article. http://creativecommons.org/licenses/by-nc-sa/4.0/ 242 journal of law & legal reform volume 3(2) 2022 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license. published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia publishing ethical and originality statement all authors declared that this work is original and has never been published in any form and in any media, nor is it under consideration for publication in any journal, and all sources cited in this work refer to the basic standards of scientific citation. about author(s) achmad beni chandra is an advocate at law office a.b. law & partners, indonesia. he also enrolled as a postrgraduate student, master of laws, at the faculty of law universitas negeri semarang, indonesia. http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23ce9f6e1fef • your ip: click to 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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: 7fbf23cedbfda607 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 2(3) 2021 365 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article role of damang (tribal chief) on domestic violence (study at palangka raya city, indonesia) agustina rahayu husein1 1 postgraduate program master of laws universitas negeri semarang, indonesia  rahayuhusein@students.unnes.ac.id cited as husein, a. r. (2021). role of damang (tribal chief) on domestic violence cases (study at palangka raya city, indonesia). journal of law and legal reform, 2(3), 365-376. https://doi.org/10.15294/jllr.v2i2.46534 submitted: january 25, 2021 revised: april 19, 2021 accepted: june 8, 2021 abstract this study aims to introduce the community to the customs of the dayak tribe as well as to describe the role of the traditional head damang in handling cases of domestic violence that occurred in the city of palangka raya. the people of central kalimantan carry out their lives based on rules, norms or orders in navigating life that are regulated by traditional institutions in the form of kedamangan which in this kedamangan customary institution consists of damang, sub-district customary mantir, and village customary mantir. damang is a customary leader and head of the district level customary peace mantir density who is authorized to enforce dayak customary law in a customary area. keywords: customary law; tribal chief; damang; dayak; domestic violence introduction central kalimantan is one of the provinces in indonesia, has the capital city of palangka raya and has thirteen other urban districts. the majority of the population in the city of palangka raya itself is occupied by the dayak people who have various traditions or customs that have been passed down from generation journal of law and legal reform (2021), 2(3), pp. 365-376. doi: https://doi.org/10.15294/jllr.v2i2.46534 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46534 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 366 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia to generation and have been in effect since ancient times until today. in carrying out their lives, the dayak people have rules, norms or arrangements in navigating life which are regulated by traditional institutions in the form of kedamangan which in this dedamangan customary institution consist of damang, sub-district customary mantir, and village customary mantir. tjilik riwut in his book says that the traditional head damang was formed in 1938 as a ransom to replace the traditional head official during the temple period which was seen by the dayak tribe as a restoration given to the community's feelings as an acknowledgment of their ancestral customs (tjilik, 1973). the dayak community has a basic life or philosophy of "belom bahadat" which means "traditional life" (kusni, 2011). the meaning in this philosophy is the basis for all aspects of the life of the dayak people. the role of adat in the dayak tribal community is very strong, one of which is the implementation of marriages and the resolution of problems that occur in the dayak indigenous peoples where this is still maintained today. the dayak community in maintaining the rules for navigating life requires someone who is believed to be responsible, understands the customs and who can make the dayak community always in a state of peace and tranquility. therefore, the dayak community has a traditional kedamangan institution consisting of a traditional head damang as a forum that can shape indigenous peoples into indigenous peoples who are harmonious and peaceful in navigating life side by side as indigenous peoples. the community, then an institution is formed which is called the traditional kedamangan institution. the implementation of the damang itself in which there is a traditional head damang who functionally carries out duties in the form of organizing traditional marriages, disputes between indigenous peoples, customary crimes, divorce, distribution of inheritance and so on. so, in this case the person who is trusted or appointed as the damang of the customary head has a strong and important position to maintain peace in indigenous peoples as well as to regulate the order of indigenous peoples. to carry out its function as a customary head, the damang acts as a peacemaker to restore balance and maintain harmony in indigenous peoples.(central, 1998) the traditional head damang who is in the jekan raya sub-district does not carry out his duties and functions alone but is also assisted by 3 (three) customary mantir, each consisting of 3 (three) foreman in bukit tunggal village, 3 (three) foreman in katimpun village, 3 (three) foremen from palangka village, 3 (three) foremen from menteng village, and 3 (three) foremen in jekan raya district. all cases that occur in indigenous peoples first go through the mantirmantir. cases that occur in indigenous communities involving married couples explained by the damang of jekan raya sub-district are common, he often finds domestic cases experienced by married couples, especially in cases of domestic violence. in the explanation, damang jekan raya said that the dayak indigenous http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 367 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia people believe that marriage is a very sacred procession taken from a meaning that a woman is so noble compared to other god's creatures (cardinal, 2020). cases of domestic violence are one of the factors in divorce that occur between husband and wife, while in the dayak indigenous community divorce is an act that is not expected and is considered a very embarrassing thing, this is because the dayak indigenous people have the belief that husband and wife's decision to divorce is something that should not happen, in fact it is not expected that a divorce will occur when two individuals (a man and a woman) have been linked to become husband and wife which in custom is called "tende sinde hentang bones". method this writing study uses a case study. case studies are a translation of the english "a case study" or also called "case studies". the word "case" is taken from the word "case" which means "instance or example of the occurrence of the case", "actual state of affairs: situation", "circumstances or special conditions relating to a person or thing"(horby, 1989) the meaning is "example of the occurrence of something", "actual condition of a situation or situation", and "a certain environment or condition about a person or thing". the description above can be interpreted that a case is a series of scientific activities carried out intensively, in detail and in depth regarding a program, event, and activity, either at the individual level, a group of people, institutions, or organizations to gain in-depth knowledge about the event (mudjia, 2017). this research is a qualitative descriptive research. descriptive research is a study of problems in the form of current facts from the point of view of the population which includes activities to assess attitudes or opinions towards individuals, organizations, circumstances, or procedures. while qualitative research is a contextual research that uses humans as instruments, and is adapted to a reasonable situation in relation to data collection which is generally qualitative in nature. this research is based on field observations with research questions that include: what is the role of the damang in resolving cases of domestic violence in jekan raya district, palangka raya city? focusing on problems or cases of domestic violence that occurred in jekan raya district, palangka raya city, which in this case involved the damang to resolve the case as someone who has a position and is trusted by the dayak indigenous people to be able to solve problems that occur in indigenous communities. this method is expected to provide an overview of the role of the damang in solving various cases in the dayak tribal community, jekan raya district, palangka raya city, especially on the problem of domestic violence. http://creativecommons.org/licenses/by-nc-sa/4.0/ 368 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia damang (tribal chief) of dayak and the role on preventing of domestic violence cardinal tarung said that basically the dayak tribal people believe that a woman is a very expensive treasure. they really appreciate the existence of women as very special creatures of god.(cardinal, 2020)therefore, in the dayak indigenous people who want to get married first carry out traditional marriages in which there is a procession "palaku" which comes from the word behavior which means asking or requesting. this is done as a form of placing a woman as the foremost position, meaning that the presence of a woman is the main thing and is highly respected, thus palaku is a form of protection and care for women as weak people (dayak, 2010). women in the indonesian dictionary are the opposite of men (poerwadarminta, 2003). the word woman comes from the word empu which means appreciated. in terms of social science, women are known as feminism which is an association that thinks that women are oppressed and exploited as well as efforts to stop women from being oppressed and exploited (fakih, 1997). scientists such as plato also explain about women, according to him mentally women are weaker than men when viewed from physical or spiritual strength. however, this difference does not cause any disparity between men and women in having talent (murthada, 1995). the feminist approach says that domestic violence in heterosexual relationships is a consequence of patriarchy, social structure systems and practices in which men dominate, oppress and exploit women. domestic violence is a consequence of men's desire to exercise power and exercise greater control over their female partners, this is a behavior that is legal and justified in the patriarchal system (linda, 2020). cases of domestic violence are still common, in the city of palangka raya itself, dayak traditional institutions still find these problems, one of which occurs in the district of jekan raya where a husband commits violence against a partner by injuring his wife's hand with a sharp weapon. the physical violence received by a wife should be a big concern for the community to care about the protection of women, including in this case the dayak customary institutions have a role and responsibility for this case because it involves indigenous peoples. according to the hard language comes from the english language violence which means strong or power. hardness is an affix which means not soft, not soft, and not smooth. according to the term violence means an expression, whether done physically or verbally, which reflects aggressive actions and attacks on any freedom or dignity of a person that can be carried out by individuals or groups of people (ali, 1997) . domestic violence (kdrt) as explained in law number 23 of 2004 is any act against a person, especially a woman, which results in physical, sexual, psychological misery or suffering, or neglect of the household including threats to http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 369 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia commit acts, coercion, or unlawful deprivation of liberty within the household (law, 2004). gender-based violence is a form of violence perpetrated by a person against a different gender, such as men committing acts of violence against women or vice versa. but in reality many acts of violence occur to women than men, women are more victims than perpetrators this is because women are defined as weak compared to men. domestic violence (kdrt) as explained in law number 23 of 2004 is any act against a person, especially a woman, which results in physical, sexual, psychological misery or suffering, or neglect of the household including threats to commit acts, coercion, or deprivation of liberty against the law in the domestic sphere (undang-undang, 2004). there are several factors that cause domestic violence, namely: first, individual factors. where a person becomes a newspaper of child neglect, psychological deviation and alcohol abuse, as well as a history of violence that has occurred in the past. second, family factors in this family factor can be seen such as poor parenting patterns, conflicts that occur during marriage, violence perpetrated by spouses, low socioeconomic status obtained, as well as linkages or involvement of parties in domestic violence problems. third, community factors, community factors can be exemplified such as poverty, high crime rates, high population mobility, lack of employment opportunities which result in high unemployment, drug trafficking, weak institutional policies, lack of service facilities for victims, and situational factors. fourth, social environmental factors, these factors include rapid changes in the social environment, economic inequality, gender inequality, poverty, economic weakness, weak law enforcement, culture that contains violence, high use of illegal firearms and the period of conflict or post-conflict (kemenkes, 2012). according to criminology, violence that results in physical damage is violence that is against the law. therefore, violence is defined as a form of crime. according to sanford kadish, violence is all types of unlawful behavior in the form of real actions or in the form of criticism that can result in destruction or damage to property rights (fakih, 1997). domestic violence is violence that occurs in the household where the male sex in this case the husband becomes the perpetrator of abuse both physically and verbally to the female sex or wife (humm, 1996). anne grant defines domestic violence as a pattern of deviant behavior (assaultive) and coercive (corsive), including attacks in the form of physical, sexual, psychological, and economic coercion by adults to their partners (achmad, 2000). violence against women in the household does not only include physical violence, as stated in article 1 paragraph 1 of the anti-domestic violence bill: (undang-undang, 2002) 1. what is meant by physical violence is any attitude and action that causes pain, injury, injury or disability to a person's body, and or causes death. http://creativecommons.org/licenses/by-nc-sa/4.0/ 370 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. what is meant by psychological violence is any attitude and action that results in fear, loss of self-confidence, loss of ability to act, feeling helpless, and/or causing severe psychological suffering. 3. what is meant by sexual violence is any attitude and action directed against a person's body or sexuality for the purpose of degrading the dignity and integrity of his body or sexuality, which has a physical or psychological impact. 4. what is meant by economic violence is any attitude and action that results in economic loss and or creates economic dependence and which results in reduced, limited, and or no access, control and participation with respect to economic resources. the existence of domestic or family violence can result in the rights and obligations of the victim, which is an indicator of an imbalance in the responsibilities of community members of a particular community. in this kind of society, humans are not well protected. furthermore, the explanation of violence in the family is a variety of actions that can cause mental, physical, and social suffering to family members by fellow family members such as children or in-laws, mothers or wives, and fathers or husbands (arif, 1993). according to annisa, domestic violence is a form of violence that occurs or is based on gender differences that results in pain or suffering, especially for women, including threats, coercion, restrictions on freedom that occur in the public or domestic sphere (annisa, 2010). the impact that occurs on domestic violence that afflicts the wife is physical violence directly or indirectly which can cause the wife to suffer physical pain that can cause injury due to the violence given. sexual violence committed can result in loss of sexual desire because the wife becomes afraid and lacks the normal response to an invitation to have sex. psychological violence can cause the wife to feel depressed, traumatized, shocked, afraid, angry, emotionally unstable and explosive, lack of socialization, and deep depression. economic violence can result in limited fulfillment of daily needs needed by wives and children in the form of physical violence. on the basis of the perpetrator's actions against newspapers that do not cause disease or obstacles to carrying out work or livelihoods or daily activities, they can be sentenced to a maximum of 4 years or a maximum fine of five million rupiah. some observers of domestic violence say that there is an unequal power relationship between husband and wife, the economy, the tendency of violence as a tool to resolve conflicts. the impact of domestic violence that occurs against the wife is direct physical violence which can cause the victim to suffer physical pain due to the injuries that are felt due to violence by the husband. some observers of domestic violence say that there is an unequal power relationship between husband and wife, the economy, the tendency of violence as a tool to resolve conflicts. the impact of domestic violence that occurs against the wife is direct physical violence which can cause the victim to suffer physical pain due to http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 371 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the injuries that are felt due to violence by the husband. some observers of domestic violence say that there is an unequal power relationship between husband and wife, the economy, the tendency of violence as a tool to resolve conflicts. the impact of domestic violence that occurs against the wife is direct physical violence which can cause the victim to suffer physical pain due to the injuries that are felt due to violence by the husband. not all women in carrying out married life feel lucky and get independence in the form of freedom and their rights as a wife to get love and protection from a husband, some women, especially those in the city of palangka raya, jekan raya sub-district, get unfavorable treatment by their husbands when they get married. since the marriage or those who have been married for a long time, both verbal and non-verbal treatment. in this case, the damang of the dayak customary head plays a very important role as someone who has a position in the judiciary, namely as a customary head to provide protection to his community in order to ensure peace between others, especially in this case guaranteeing peace between husband and wife, basically, a damang is someone who is trusted and appointed to carry out his role as a traditional head in carrying out his duties and responsibilities to maintain peace and order in society and to keep culture and customs preserved and implemented properly so that they are not lost by the times. the perspective in sociology is known as role theory which considers most daily activities to be actors in social categories (e.g. mothers, managers, teachers, police). each social role is a set of rights, obligations, expectations, norms, and behavior of a person in dealing with and fulfilling. this model is based on the observation that people behave individually in a particular context, based on position and other factors. the role is defined as the characteristics that are carried by an actor in a drama stage, which in the social context of the role is defined as a function that is performed by someone when occupying a position in the social structure. the role of an actor is a boundary designed by another actor, who happens to be both in one performance or role performance. according to biddle and thomas, the role is a series that can limit the behaviors expected of the holder of a certain position (sarwono, 2015) furthermore, suhardono further defines the role as a set of principles that limit what behavior should be carried out by someone who has a position in a certain position (edy, 1994) . biddle thomas divides the terms in role theory into four groups, namely terms relating to people who take part in social interactions, behaviors that arise in those interactions, people's positions in behavior, and the relationship between people and behavior. the role has several dimensions, including: 1. role as a policy. according to this understanding, the role is an appropriate and good policy to be implemented. http://creativecommons.org/licenses/by-nc-sa/4.0/ 372 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 2. role as strategy. according to this understanding, it proves that the role is a strategy to get support from the community (public supports). 3. role as a communication tool. role is applied as an instrument or tool to get input in the form of information in the decision-making process. this opinion is based on the idea that the government is designed to serve the community so that the views and preferences of the community are valuable inputs to realize responsive and responsible decisions. 4. role as a dispute resolution tool, the role is applied as a way to reduce or reduce conflict through efforts to achieve consensus from existing opinions. the assumption underlying this perception is that exchanging ideas and views can increase understanding and tolerance and reduce mistrust and confusion. 5. role as therapy. according to this view, the role is carried out as an effort to solve the psychological problems of society such as feelings of helplessness, insecurity and the feeling that they are not an important component in society (arimbi, 2003). the definition of damang itself is regulated in article 1 number 28 of the regional regulation of central kalimantan province number 15 of 2009 is the customary leader and the head of the density of customary peace mantrs at the sub-district level who are authorized to enforce dayak customary law in a customary area whose appointment is based on the results of elections by the lurah, the heads of the damang. village community, the sub-district dayak traditional mantir, the village peace customary mantir included in the kedamangan area. kedamangan is a dayak customary institution which has customary territory, customary community units and customary law in the province of central kalimantan which consists of a collection of several villages or sub-districts or districts and cannot be separated (perda, 2009) damang has the duties and functions as the head of the dayak adat which is regulated in article 8 of the regional regulation of the province of central kalimantan number 1 of 2009: 1. upholding customary law and maintaining the authority of traditional kedamangan institutions. 2. assist in the smooth implementation of executions in civil cases that have permanent legal force, if requested by the competent authority. 3. resolving disputes and or violations of adat, it is also possible for problems that are included in criminal cases, both in the first examination and in the final settlement trial, as is usually the case according to the applicable customary law. 4. strive to resolve by peaceful means if there are internal tribal disputes and between one tribe and another in its territory. 5. give consideration, whether requested or not, to local governments on issues related to their duties. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 373 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 6. maintain, develop and explore indigenous arts and culture of the region as well as preserve historical objects and places inherited from their ancestors. 7. assist local governments in seeking the smooth implementation of development in all fields, especially in the fields of customs, habits and customary law. 8. confirming the custom when requested by the local indigenous community, public officials and other officials who have been appointed as a customary honor. 9. can provide legal status according to customary law on values regarding matters relating to disputes or customary civil cases if requested by interested parties. 10. organizing guidance and development of dayak traditional values, in order to enrich, preserve and develop national culture in general and dayak culture in particular. 11. managing customary rights, customary assets or traditional assets to maintain and even improve the progress and standard of living of the community in a better direction. 12. determine the amount of court fees, table fees, commission fees, road fees and single laps in the context of service or settlement of cases and/or disputes by the density of customary peacekeepers, both at the sub-district and village or sub-district levels. the customary head damang also has the functions regulated in article 9 of the central kalimantan provincial regulation number 15 of 2009 namely: 1. the function of the traditional head of the damang is to manage, preserve, empower and develop customs, habits, customary law and the damang institution he leads. 2. enforcing customary law by handling cases or disputes based on customary law and being the judiciary at the last level 3. enforcing customary law by handling cases or disputes based on customary law and being the judiciary at the last level the case of domestic violence experienced by a wife is the responsibility of the traditional head damang as a person who has the position and position to handle this case, the customary head damang is trusted by the community because he is considered a chosen person who is believed to be able to carry out the responsibility as a customary head and understand the ins and outs of the problems that occur in society. this case of domestic violence is of particular concern to the damang because the damang acts as someone who can resolve disputes using methods or methods such as placing both parties to listen to opinions and giving directions or advice in accordance with what has been stipulated in customary law. damang also acts as a mediator where in this case damang is considered competent as therapy, where through advice and education about the nature of the household and the existence of god as the only one who is trusted by humans, http://creativecommons.org/licenses/by-nc-sa/4.0/ 374 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia it is hoped that a wife who experiences domestic violence can relieve pain. mentally, such as the trauma experienced and providing education to perpetrators of domestic violence that everything is good can be communicated with a cool head and involve god in any case so that emotions do not smolder, causing attitudes or actions that can harm their partner. furthermore, in the process of resolving domestic violence conflicts, the damang adat chief is the last door for the community to resolve cases, as has been explained in the regional regulations in the adat institution. village level. the community who complains the problem to the customary institution must first be resolved through the village level customary supervisor where he lives next, if it cannot be resolved then this case can be raised to the district level customary peace supervisor. zastrow & browker state that there is a theory of aggression that can state that there are three main theories that can explain the occurrence of violence, namely biological theory, frustration-aggression theory, and control theory (charles, zastrow & bowker, 1984). the frustration-aggression theory describes violence as a way of suppressing the tension that results from a frustrating situation. this theory comes from the opinion that someone who feels frustrated is often involved in acts of aggression. aggressive behavior is a form of negative behavior that arises due to stimuli obtained from the environment which often result in a greater impact. this aggressive behavior can be physical or verbal and can also occur in other people or objects that are the target of aggressive behavior. robert bacon defines aggressive behavior as individual behavior that aims to injure or harm other individuals who do not want or want the behavior to come (robert, 2003). aggression theories describe that there is aggressive behavior that occurs because of the real factors that cause it. aggressive behavior can occur from many stimuli, both external and internal. the frustration aggression theory (frustration aggression hypothesis) argues that if a person's efforts to achieve a goal are hindered, an aggressive impulse will arise which in turn will motivate behavior designed to injure the person or object that causes frustration. according to this formulation, aggression is not a person's innate drive, but because frustration is a fairly universal condition, aggression remains an impulse that must be channeled (sarwono, 2002). there are several causes that influence the occurrence of aggressive behavior, one of which and the most common is influenced by the presence of external and internal stimuli. aggressive behavior, which is a form of negative emotion, does not just happen, but often occurs because of a continuous process. the emergence of aggressive behavior is closely related to the anger that occurs in a person, anger can arise due to the causes of other people's attacks and the occurrence of frustration in a person. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(3) 2021 375 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the first anger results from attacks or disturbances by others. it was seen that one time suddenly there was someone who badmouthed someone with harsh words. second, frustration which is a disturbance or failure to achieve goals, one of the principles in psychology is that frustration tends to evoke feelings of aggression. cases that befell husband and wife so that domestic violence can occur can be caused by anger or frustration felt by a husband so that it results in stimulation to hurt or harm his wife, in this case the anger felt by a husband is due to the fatigue factor he feels when he comes home. work and a wife who does not heed her husband's request not to leave the house for any reason, thereby causing a husband to become unbearable in anger so that he commits an act that can injure or harm his wife. conclusion damang acts as someone who can resolve disputes by using methods or methods such as placing both parties to listen to opinions and giving directions or advice as stipulated in customary law which aims to reduce or suppress conflicts that occur in domestic relations so that they do not occur. the violence experienced by the wife and to avoid the husband and wife relationship to divorce, given that in dayak customary law itself a woman is very high in position and highly respected by her existence, therefore the damang also has a role as a person who protects women from acts that are harmful to women. inappropriate for women, such as domestic violence and sexual harassment. damang acts as a mediator where in this case the damang is considered competent as therapy, where through lectures and education about the nature of the household and the existence of god as the only one who is trusted by humans. as well as acting as a person who can give a decision that is final because it has legal force that has been regulated in regional regulations. furthermore, in the process of resolving domestic violence conflicts, the damang adat chief is the last door for the community to resolve cases, as has been explained in the regional regulations in the adat institution. village level. the community who complains the problem to the customary institution must first be resolved through the village level customary supervisor where he lives next, if it cannot be resolved then this case can be raised to the district level customary peace supervisor. references achmad, c. (2000). menggugat harmoni. yogyakarta: rifka annisa wcc. ali, a. (1997). kamus llengkap bahasa indonesia. bandung: penabur ilmu. annisa, r. (2010). kekerasan terhadap perempuan. the global fund for women. https://doi.org/10.31219/osf.io/xqsp5 http://creativecommons.org/licenses/by-nc-sa/4.0/ 376 journal of law & legal reform volume 2(3) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia arif, g. (1993). masalah koran kejahatan. jakarta: akademika pressindo. bab i ketentuan umum pasal i huruf r, mantir adat adalah perangkat adat atau gelar bagi seseorang yang duduk di dalam majelis adat. charles, z., & bowker, l. (1984). social problems: issues and solutions. nelson-hall. edy, s. (1994). teori peran. jakarta: pt. gramedia pustaka utama. fakih, m. (1997). analisis gender dan transformasi sosial. jakarta: pustaka pelajar. horby, a. s. (1989). oxford advanced learner’s dictionary. (fourth edi). oxford: oxford university press. horoepoetri arimbi, s. a. (2003). peran serta masyarakat dalam pengelolaan lingkungan. jakarta: walhi. humm, m. (1996). mengapa perempuan disiksa? perempuan, 1 agustus, 4. kardinal, t. (2020). damang kepala adat. kelembagaan adat dayak di kota palangka raya. kemenkes, r. (2012). pedoman pengendalan kekerasan dalam rumah tangga. jakarta: kemenkes ri. kusni, s. (2011). budaya dayak permasalahan dan alternatifnya. jakarta: bayu media. linda, m. (2020). understanding domestic violence: masculinty, culture, traditions. south africa: departement of sociology university of johannesburg. mudjia, r. (2017). studi kasus dalam penelitian kualitatif. jurnal sains dan seni its, 6(1), 51–66. murthada, m. (1995). hak-hak wanita dalam islam. jakarta: lentera. peraturan perkawinan menurut hukum adat dayak kalimantan tengah, 2010. poerwadarminta. (2003). kamus umum bahasa indonesia. jakarta: balai pustaka. rancangan undang-undang anti kekerasan dalam rumah tangga. tim perumusan draft rancangan undang-undang anti kekerasan dalam rumah tangga. robert, a. b. (2003). psikologi sosial. surabaya: airlangga. sarwono, s. (2002). psikologi sosial dan teori-teori psikologi sosial. jakarta: pt. raja grafindo. tjilik, r. (1973). kalimantan tengah membangun. jakarta: pt. tirta wacana. undang undang nomor 23 tahun 2004 tentang kekerasan dalam rumah tangga. http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23cf59012007 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare journal of law & legal reform volume 2(1) 2021 225 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia research article indonesian anti-corruption law enforcement: current problems and challenges suramin suramin1 1 law independent law office, indonesia jalan raya mertokondo no.24 kutosari kebumen, central java, indonesia  suraminsh1978@gmail.com cited as suramin, s. (2021). indonesian anti-corruption law enforcement: current problems and challenges. journal of law and legal reform, 2(2), 225-242. https://doi.org/10.15294/jllr.v2i2.46612 submitted: november 22, 2020 revised: january 29, 2021 accepted: april 11, 2021 abstract corruption needs to be prevented and tackled not only because of its foul, but also economically cause financial losses to the state and is a violation of the rights of the social and economic community. this research is intended to analyze the law enforcement on some corruption cases in indonesia. the results showed that the number of corruptions is still increase caused by factors such as lack of understanding of the law enforcement officers on duties and responsibilities, lack of morality of apparatus, as well as the lack of a functioning supervisory institutions. in completing a corruption case, should be implemented sincerely, careful meticulous in making the concept of charges and match with the formulation of the offense and the principles of the criminal before the case was transferred to the court. it should also improve the quality and improve the mental attitude of law enforcement officers. keywords: anti-corruption; corruption eradication; law enforcement journal of law and legal reform (2021), 2(2), pp. 225-242. doi: https://doi.org/10.15294/jllr.v2i2.46612 issn (print) 2715-0941, issn (online) 2715-0968 http://creativecommons.org/licenses/by-nc-sa/4.0/ https://doi.org/10.15294/jllr.v2i2.46612 http://issn.pdii.lipi.go.id/data/sk1572939820.pdf http://issn.pdii.lipi.go.id/data/sk1572940693.pdf 226 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia introduction corruption in indonesia has entered into an acute area or it can be said that it is at a very nadir point. corruption is not only carried out jointly but has been carried out systemically by the parties in the hope of enriching themselves and others. the corruption cases are a form of resistance to the law committed by a part of the community or a small number of certain members of society who take refuge behind power or authority for their personal interests by harming state finances. the powerlessness of law enforcement officers in this case makesit is increasingly clear that corruption must be stopped immediately. restoring trust in law enforcement officers must be carried out immediately. a strong sense of desire for law enforcers must be stimulated. the existence of this extraordinary corruption certainly hinders the sustainability of development in indonesia. corruption as an extraordinary crime behavior threatens the ideals of the state which requires a more serious legal action, how corruption has hit indonesian society everywhere and has entered all circles, as if there is no fear, shame, or sin for them. who commits a criminal act of corruptions. to combat the corruption crime is very necessarylaw enforcers who are concerned with eradicating it. therefore, based on the mandate of law no. 30 of 2002, the corruption eradication commission (kpk) is expected to be able to eradicate the criminal act of corruption, therefore there is a need for strengthening to carry out its duties not to weaken or criminalize the role and function of the kpk. in the order of life as a state, the law regulates and is needed in almost all aspects of the behavior of social life. this is because the law, among other things, comes from the will of community behavior. various problems that occur in society and in state life such as in indonesia, should be related to the existence of law. basically, because indonesia is a country based on law (rechts-staaat) and not a country based on power (machtstaat) alone. when a case occurs involving the social, cultural, economic, education, religion, and political dimensions, it is inevitable that the existence of law is questioned and even sued by the community. in indonesia, the criminal act of corruption, which is detrimental to state finances and can torment the people, is carried out by means of the modus operandi of enriching oneself or others by abusing one's position on the trust of the state that has lasted since the state was founded. the state often faces financial crises, is also heavily indebted, to international financial institutions, state losses as a result of heinous acts of corruption that never compromise the state's money. indeed, the issue of corruption has become an inseparable part of history from the journey of the indonesian nation in filling the era of the proclamation of independence. the erosion of state finances for the benefit of certain individuals http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 227 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia or groups has occurred since indonesia was proclaimed a sovereign state. incidents of corruption seem to have become part of a deviant cultural behavior in many government and state bureaucratic institutions, as well as detrimental to the state and a sense of welfare justice for the people. as a state based on law (rechtstaat), the indonesian people need just legal protection, so that the people feel prosperity and prosperity, which is part of the goals and interests of humans who live in society, nation and state. according to thomas aquinas, the law which is based on iustum (justice), is an absolute product of reason. regarding justice, aquinas differentiates into three categories: (i). distributive justice (distributive justice) which refers to the principle that the same is given equally, to those who are not given the same who are not. this is called geometric equality. (ii). iustitia commutativa (commutative justice or exchange), refers to justice based on arithmetic principles, namely adjustments that must be made in the event of an act that is not in accordance with the law. (iii). iustitia legalis (legal justice), which refers to obedience to the law. corruption in indonesia is not committed by the public in the middle and lower level, but it is carried out by the middle to upper class society or it can even be said by people who are already overweight and highly educated. the question is why do they want to do this? behaviors and lifestyles cannot be avoided but what is there is how to maintain the continuity of these behaviors and lifestyles so that they always run without stopping. committing the corruption crime, is now using a different format from the corruption crime in the past. now this is done neatly by formatting from upstream to downstream and involving all parties, the government, in this case the technical ministry, the dpr as the supervisor and budget approver, the company that runs the project also has a very strategic role to regulate project activities so that the desire to win and run the project without getting hindered. currently, the misappropriation of state funds is carried out by state officials and those who are not state officials continue to increase even though the reform era has rolled out. corruption, both at present and in the future data, remains a serious threat that can endanger the life of the nation and state, so that corruption should be an extraordinary crime. within the framework and scope of the reforms that have taken place in this country, people are increasingly made aware of the important role of law as a means of protection (social defense) in regulating the life of society, nation, and state in various aspects of life such as politics and economics. the role of law as a protector is reflected in neglecting the function of law as a means of social control, social change (social engineering) and law as a means of integration. for the indonesian nation constitutionally, law functions as a means of upholding a democratic life, upholding a socially just life and upholding a humane life (budiharjo, 2001; pond, 1996). http://creativecommons.org/licenses/by-nc-sa/4.0/ 228 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia the public's guidance to eradicate corruption is a reflection of the problem of law enforcement in this country, because corruption is a form of illegal act that harms the state and society. corruption that occurs everywhere is an indication of the weakness of the legal function as a means of control, a means of change and an integrated means. hard efforts to eradicate corruption, collusion and nepotism (kkn) both in the fields of general government and development have not been followed by real and serious steps by the government, including law enforcement officials in implementing the state of indonesia highly upholds legal protection for every citizens so that strength is needed over the facilities and infrastructure needed to support development in the legal field. in an effort to achieve the success of development in the field of law, it is necessary to support the improvement of facilities and infrastructure as well as an increase in the empowerment of the law enforcement apparatus, the strengthening, position and role of law enforcement agencies which are directly related to the law enforcement process. therefore, development planning must also include planning for community protection against law violations. the indonesian nation is currently hit by a crisis of confidence in every segment of the life of the nation and state in the social, political, economic, trade, financial and industrial fields. a crisis of confidence occurs in economic institutions, government institutions, including the executive, judiciary and legislative bodies, financial institutions, banks and non-banks as well as party institutions, this is because a good, clean and free government from corruption has not been created. poerwadarminta states that corruption is a bad act such as embezzlement of money, receipts, bribes and so on. syed husein alatas as quoted by martiman prodjoamidjojo explained that four types of corruption in practice have the characteristics of (1) always involving more than one person, (2) generally carried out in full secrecy, (3) involving elements of obligation and mutual benefit, and (4) with various kinds of reason protect behind the legal justification. the material formulation of law number 31 of 1999 concerning eradication of corruption is carried out as a preventive effort to anticipate criminal acts of corruption which are increasingly difficult to prevent and eradicate. for cases of corruption that are difficult to prove, according to the provisions of article 27 of law number 31 of 1999, the regulation allows for a joint team to be formed coordinated by the attorney general which has the task and authority to investigate and prosecute corruption crimes. however, based on the judicial review submitted to the supreme court, this authority is no longer the authorization of the attorney general. currently there is a corruption eradication commission which has very broad duties and powers to investigate and prosecute acts of corruption, however, in theoretical and practical discourse, these laws and regulations have a function as an instrument (tool/means) in law enforcement efforts. this shows http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 229 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia that the tools/means or instruments to prevent, cope with, and take action against perpetrators of criminal acts of corruption are available. the urge to eradicate corruption has echoed, but in reality, the resolution of criminal acts of corruption, especially those that have attracted public attention, has had unsatisfactory results. the performance of the prosecutor's office in enforcing the law on corruption is considered by the public to be not optimal and maximized as demanded by the community. based on these, the criminal law rules contain rules that determine the actions that cannot be carried out accompanied by threats in the form of punishment (sorrow) and determine the conditions for which the punishment can be imposed. the public nature of criminal law has a consequence that the criminal law is national in nature. thus, indonesian criminal law is enforced throughout the territory of the indonesian state. whereas the material of criminal law which is full of humanitarian values results in criminal law often being described as a double-edged sword. on the one hand, criminal law aims to uphold human values, but on the other hand, criminal law enforcement actually imposes sanctions on misery for humans who violate it. method whereas this research method is carried out with two approaches, namely the normative juridical approach and the sociological juridical approach or socio legal research (non-doctrinal), to evaluate the relationship between normative and empirical aspects, to study/research (a combination) between normative juridical and sociological juridical. type of this research is descriptive analysis in order to provide an overview of real facts accompanied by accurate analysis of laws and regulations that can be used as material for analysis or analysis related to the authorities and functions of the police, attorney general's office and the corruption eradication commission (kpk). corruption crime: the growth of crimes law, as a set of regulations (orders and prohibitions) that govern the order of a society, must be obeyed by all communities involved in the life of society, nation and state. in the law, there are prohibitions or orders that guide every person or legal subject to carry them out. obedience is the main standard that will determine the image of the law in society, including for the implementer and for the law enforcer itself. thus, the law will continue to maintain order in human relations where they are, so that security and order are maintained, in accordance with the objectives. very essential law, namely justice. http://creativecommons.org/licenses/by-nc-sa/4.0/ 230 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia law is directed entirely as a means to support development. whereas what should have been development was only a means of enhancing human dignity. so, it is clear that by law we will create or make welfare for the community. laws are made by the state and are not merely toolssocial engineering, but more than that, namely upholding justice and protecting human dignity. not a few human rights have been entrusted to the law to be guarded or protected, because without any protection from this law, there will be many actions that have the character of being violated. if a country has positioned itself as a rule of law (rechtsstaat), then the consequence is that the product of legislation becomes the benchmark for rule of game in the middle of people's lives, where the content of the norms in it will mention about prohibitions, orders, compliance and binding sanctions. this means that make the law a commander who cannot be defeated by any situation and condition. if the law is abandoned, not only will its image fall and be tarnished, but its future will also be bleak and lose its credibility. reference to this law is not intended to fulfill the needs of the authorities in behaving but is related to the macro interests of the life of the nation and the state, short and long term interests, including normative interests in associating with the international community which has entered the era of globalization. if, the state issues laws and regulations, for example, related to "prevention and eradication of corruption crimes", as a form of legal product, of course the problems that should be considered or anticipated are not only short-term problems, but also related to welfare, as well as safeguarding state assets in a period of time. relatively long term. the law contains norms for protecting the interests of the people such as justice, freedom of choice, fair treatment, humane treatment, the right to welfare and decent work, including those with law enforcement. if the organizer of power implements the duties outlined by this law according to the will of the law, it is the duty of the rulers to supervise that people must carry out their work in a position that is attained in accordance with their abilities, including in carrying out, enforcing legal problems as a regulatory system. the formulation of the definition of corruption can contribute to positive legal formulation, which illustrates that corruption regarding moral aspects, bad character and condition, abuse of position in government apparatus institutions, abuse of power due to giving, economic and political factors as well as the placement of families, groups or groups into the service under office power, are part of the modus operandi of the criminal act of corruption. according to baharuddin lopa, there are eleven causes of corruption, namely: 1) moral depravity; 2) weaknesses of the system; 3) vulnerability of socio-economic conditions; http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 231 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 4) indecisiveness in law enforcement; 5) the frequency of officials requesting donations from entrepreneurs; 6) extortion; 7) lack of understanding of the criminal act of corruption; 8) government implementation and development that is completely closed; 9) there is still need to improve the control mechanism by the dpr; 10) the existing legislation is still weak; and 11. combination of a number of factors (causes) (lopa, 1997). efforts to eradicate corruption are influenced by the weak commitment of the power holders or the government and political elites to seriously fight corruption. rule of law positively structured well to govern the whole country”. a less comprehensive strategy to eradicate corruption, namely paying more attention to repressive actions, has also influenced it. moreover, if the repressive actions taken are half-hearted, it will certainly not be effective in fighting corruption. repressive actions that are firm and consistent need to be accompanied by preventive measures, improve the government management system, increase supervision, improve public service standards, transparency and openness of government administration, and public accountability as part of the development of good governance. she every implementation of his duties in the government apparatus which is corrupt is marked by acts of bribery, extortion, nepotism and embezzlement. so that the eradication of criminal acts of corruption needs to be carried out with strong political will by the power holders through strong legal instruments, as well as to provide answers that the law has an interest in the rights and obligations of the legal community. from a philosophical point of view, according to roscoue pound, the benefits of the classification of legal interests are (1) law as an instrument of social interest, (2) helping to make ambiguous premises clear, and (3) making legislators (legislators) become be aware of the principles and values involved in each specific issue. law as protection of human interests is different from other norms. because the law contains orders and / or prohibitions, and divides rights and obligations. in terms of appreciating legal interests, it will produce conceptual legal products for legal interests that are related to the objectives of the law that are formally realized and are a concrete form of legal function. sudikno mertokusumo, regarding the objectives and functions of law emphasized that: "in function as protection of the interests of human law has a goal to be achieved. the main purpose of law is to create an orderly social order, to create order and balance, by achieving order in society, it is hoped that human interests will be protected” (mertokusumo, 1999). in achieving this goal, the law has the duty to divide rights and obligations among individuals in society to divide authority and regulate how to solve legal problems and maintain legal certainty. an orderly society is an orderly behavior http://creativecommons.org/licenses/by-nc-sa/4.0/ 232 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia and obeys the various laws and regulations that live and develop in society. orderliness is a condition in which people live in an orderly manner, which means the balance of a state of society, which has the same rights and obligations without discrimination. the main legal duties are: 1) dividing rights and obligations among individuals in society; 2) share authority; 3) regulate how to solve legal problems; and 4) maintain legal certainty; for solving the collapse of the law in eradicating criminal acts of corruption, it is necessary to have a concept of a legal product in the form of statutory regulations as needed. activities of institutions that have the authority can take a legal system approach in order to make efforts and actions to eradicate corruption crimes. law is directed entirely as a means to support development. whereas what should have been development was only a means of enhancing human dignity. so, it is clear that by law we will create or make welfare for the community. but how will prosperity be realized through development in all sectors because the law is violated by the perpetrators of corruption. development (order/system) of law in essence builds the entire system of national life, in essence, "law" is indeed a part (subsystem). from the sociophilosophical, socio-political, socio-economic, and socio-cultural systems. however, after the legal system/order that starts from socio-philosophical, socio-political, socio-economic and socio-cultural values is structured or formed democratically, the entire national life order in the social, political, economic, cultural and so on. it is stated in the legal system/order. so, the legal system that is formed/compiled basically means "the system of order (norms and values) of national life in the political, social, economic, cultural, and so on." among the three components of the legal system, the substance component gives birth to legislation regulating the authority of law enforcement institutions in eradicating corruption crimes, as well as a positive (formal) legal basis that provides formulations on corruption, legal actions, and legal sanctions against perpetrators of corruption. on the formulation of the criminal act of corruption, the state can carry out legal processes and efforts against perpetrators of criminal acts of corruption. law enforcement in corruption cases in indonesia challenges in the dynamics of legal events that occur, especially in indonesia, are challenges for the state in its position as a rule of law. conceptual dynamism, application and enforcement of the law are elements of the legal system that are http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 233 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia continuously addressed, in order to create a legal position in a state of law and benefit the interests of society, nation and state. there is a law that is responsive, the validity of the law is based on substantive justice and rules are subject to principles, and wisdom. discretion is implemented in order to achieve goals. coercion is more visible in the form of positive alternatives such as positive incentives or a system of independent obligations. the morality that appears is the "morality of cooperation", while legal and political aspirations are in a unified state. injustice is assessed in terms of size and substantive losses and is seen as a growing problem of legitimacy. opportunities for integration are expanded through the integration of legal aid and social assistance. soerjono soekanto that in order for the law to function in society, it is necessary to have harmony between four factors, namely first, there is a systematic synchronization between legal principles or regulations both vertically and horizontally so that they do not conflict with one another; second, law enforcers have clear guidelines regarding their authority in carrying out their duties, as well as the quality of the officers' personalities to implement and obey the enacted regulations; third, the degree of community legal compliance with the law greatly affects the implementation of the law. the degree of legal compliance depends on the law-making process. fourth, facilities or means of supporting the implementation of the law must be physically adequate. it is undeniable that legal norms are the means used by society to direct the behavior of community members when they interact with one another. when it is mentioned here about "directing behavior", of course the question in us, "directing where"? these norms direct human behavior as a priority in society itself. it is society that determines these directions and therefore we can see these norms as a reflection of the will of society. the will of society to direct the behavior of members of society is carried out by making a choice between the behavior which is approved and which is not approved which then becomes the norm in that society. therefore, the legal norm is a requirement of judgments. all living humans always want to be protected from their rights and obligations as intelligent living beings. equity of law in all fields is a basic need that immediately gets a solution, so that each sector has protection. one form of protection provided by law is if it is enforced by law enforcement officials. the definition of law enforcement can be formulated as an effort to carry out the law properly, to monitor its implementation so that there is no violation, and if there is a violation of the law then restore the violated law so that it is re-enforced. satjitpto rahardjo formulated law enforcement as a process to bring legal desires into reality. satjipto rahardjo revealed that there are three things involved in the law enforcement process: 1. elements of legislators 2. elements of law enforcement officers http://creativecommons.org/licenses/by-nc-sa/4.0/ 234 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia 3. environmental elements that include citizens and social persons. law enforcement on corruption cases in indonesia is still a homework for the indonesian nation so that it can be accepted in its own country, “perpetrators of corruption and legal mafia”, a sentence that becomes a polemic for the nation's children in upholding the law, in their own country as has been revealed in the 1945 constitution. observe loebby loqman's thoughts, that in the practice of law enforcement in terms of eradicating criminal acts of corruption it affects the operation of the integrated criminal justice system as regulated by kuhap, so that if the system is integrated it will close the possibility of weakening in law enforcement. furthermore, eradicating criminal acts of corruption in indonesia, requires a firm commitment to law enforcement, so that these crimes do not continue to develop. police, prosecutors, judges, advocates, and the community must be committed to fighting and eradicating corruption in indonesia. in indonesia, the existence of the kpk is a form of constitutional law politics in order to eradicate "corruption crime" which is considered an extra ordinary crime. "crime", according to bambang purnomo, (to use the term "criminal act"), is an act which is prohibited by the rules of the criminal law and punishable by any person who violates the prohibition ". the formulation contains the sentence "criminal law rule", intended to fulfill legal conditions in indonesia which are still familiar with the life of written and unwritten law. tasks and the authority of the kpk according to law number 30 of 2002 articles 6 and 7, commission of corruption eradication has the task of: a. coordination with agencies authorized to eradicate corruption. b. supervision of agencies authorized to eradicate criminal acts of corruption c. carry out investigations, investigations, and prosecutions of acts corruption crime. d. take steps to prevent criminal acts of corruption. e. monitor the implementation of state governments. the mandate of the law makes the kpk a super body (super-body). all legal proceedings and legal remedies, since the investigations and prosecutions were carried out by the kpk. corruption suspects are tried in a special corruption court (corruption court), not by a general court. law number 30 of 2002 gives the kpk the authority to take over cases of criminal acts of corruption that are currently being handled by other law enforcement agencies (police investigators and the prosecutor's office), if up to the specified limit the cases handled have not been resolved. kpk is given the authority by law to take legal action of expropriation in a process of legal action against the perpetrator of a criminal act of corruption. conditions for taking over investigation and prosecution process according to law number 30 of 2002 article 9, namely: takeover of investigations and prosecutions as referred to in article 8, is carried out by the corruption eradication commission for the following reasons: http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 235 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia a. public reports regarding criminal acts of corruption are not followed up. b. the process of handling corruption crimes drags on or is delayed without justifiable reasons. c. handling of corruption is aimed at protecting the real perpetrators of corruption. d. the handling of criminal acts of corruption contains elements of corruption. e. obstacles in handling criminal acts of corruption are due to interference from the executive, judiciary, or legislative. in other circumstances, according to the consideration of the police or the prosecutor's office, handling corruption is difficult to carry out properly from being accountable. in carrying out its duties and functions, the kpk has the authority to carry out investigations, investigations and prosecutions against perpetrators of corruption. this authority is the same as that of police investigators and public prosecutors. that is why these three institutions have a relationship of authority in the eradication of corruption in indonesia. in accordance with the criminal justice system, the task of investigating and investigating corruption is carried out by police investigators. in indonesia, since the beginning of the reform era, the condition of law enforcement, especially regarding criminal acts of corruption, has been considered an emergency act against corruption. that is why the kpk institution was formed. even though there is a kpk, it does not mean that police investigators are no longer entitled to investigate corruption cases. investigating corruption is one of the duties of the police in the context of law enforcement. in police law number 2 of 2002 concerning the indonesian national police, article 14 paragraph (1) g, states that the police are tasked with conducting investigations and investigations of all criminal acts in accordance with the criminal procedure law and other laws and regulations. corruption is a criminal act so that legal action can be taken by police investigators. there is no special division of authority between police investigators and the kpk. however, the two institutions can take legal action against the perpetrators of criminal acts of corruption, based on reports that have been received regarding the allegation of corruption. to date, there is no legal provision that does not authorize police investigators to deal with corruption crimes. big or small, related to a suspected corruption crime, police investigators are obliged to take legal action. thus, the existence of the kpk is not an obstacle to police work. however, based on the provisions of the law substantially, the corruption eradication commission can carry out a functional relationship with authority, such as legal actions for coordination, supervision, the two law enforcement institutions, the police and the prosecutor's office based on the law, can and or have the opportunity to combine their functions of authority to work together in eradicating corruption crimes, including coordination, supervision and exchange of intelligence information about corruption crimes that have occurred and sharing data on progress of cases http://creativecommons.org/licenses/by-nc-sa/4.0/ 236 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia handled. the two institutions can also synchronize the data obtained in relation to corruption cases so that each institution can complement each other if there is a lack of data. the team of investigators and investigators at the kpk are currently from the police. this is because the police institution has qualified and well-trained investigative and investigative capabilities as well as professionals. police investigators who are seconded to the kpk are fulfilled based on needs. the kpk submitted a request to the police to assist its members to assist the kpk based on the number of needs. after that administrative selection is carried out by the kpk, then a potential, competency and health test is carried out and then ends with an interview. the same procedure also applies to personnel who come from the prosecutor's office. at the time of carrying out an investigation and investigation of a corruption case, the police investigator has full authority to carry out the investigation. for this reason, as long as polri investigators are professional and proportional, the kpk cannot take other actions apart from the police investigator. in the law, the kpk can take other actions if, among others, there are complaints from the public regarding the investigation process. complaints can be caused because the handling of the case is too long-winded and unclear, resulting in allegations of disproportionate agreements between the investigator and the suspect. or there are allegations of manipulation of case investigations so that the main actors of corruption are spared punishment. apart from the police, the kpk also has a relationship with the prosecutor's office. this relationship is because the kpk also has the authority to carry out prosecutions. the task of the prosecution has been the domain of the prosecutor's office. the prosecutor's law no. 16 of 2004, article 30 paragraph (1) a, states that the prosecutor's office has the duty and authority to carry out prosecution in the criminal field. of course, as an institution that also has the authority to carry out prosecutions, the kpk needs personnel from the prosecutor's office to carry out the prosecution. to recruit prosecutors from the prosecutor's office, the kpk submitted a request for the need for public prosecutors to the attorney general. after the request is approved by the prosecutor's office, an internal selection will be carried out by the kpk for these people. through such a mechanism, we get the best public prosecutors to eradicate corruption within the kpk. the consequences of the issuance of law number 30 of 2002 concerningthe kpk is the establishment of a special corruption crime court (tipikor court) which is in the environment of the general court. the corruption court has the duty and authority to examine and decide on criminal acts of corruption whose prosecution has been filed by the corruption eradication commission. its existence is to adjudicate criminal acts of corruption, namely, the district court and the corruption court. the difference lies in the agency that filed a criminal action against corruption, namely the kpk, or the attorney http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 237 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia general's office. meanwhile, the criminal act of corruption under the authority of the two courts is the same, namely the criminal act of corruption as regulated in law no. 20 of 2001 concerning the eradication of corruption crime. substantially and structurally, law enforcement in indonesia requires legal empowerment in accordance with the functions and objectives desired by the law (mahendra, 2003). the term "corruption" comes from the latin corruptio or corruptus. furthermore, it is stated that the corruptio comes from the word corrumpe, which is ancient latin. it is from latin that it is translated into european languages, such as in english it becomes corruption, corrupt; in french there is corruption; and in dutch it becomes corruptive (korruptie). in the indonesian encyclopedia, it is stated that corruption comes from the word corruption which means bribery, and corrumpore which means destructive. corruption is thus a symptom where officials in government agencies abuse their authority, resulting in bribery, counterfeiting, and other bad things. literally, the word corruption can mean crime, ruthlessness, bribery, immorality, corruption, and dishonesty. bad actions such as embezzlement of money, receiving bribes and so on; actions which in fact can lead to bad conditions. thus, the definition of corruption is so broad and is also strengthened by the many problems that arise as a result of these actions and result in low social morality in society. whereas one of the objectives of law is the existence of order or being fulfilled by the existence of rules of order, the provisions related to this order in terms or norms that state their position in society as legal norms. with the existence of such norms, the position that is most emphasized is legal norms, although other norms are no less important in people's lives (purnomo, 1983). to create a social order, the state establishes and ratifies laws and regulations to regulate society. these regulations have legal sanctions that are compelling. this means that if the rule is violated, the violator can be punished. the type of punishment that will be imposed on the offender will depend on the type of rule being violated. in principle, each regulation contains a coercive nature, meaning people who do not want to submit to and are subject to sanctions for the violation. the law used as a means of renewal can be in the form of law or jurisprudence or a combination of both. in indonesia, the most prominent thing is legislation. jurisprudence also plays a role, but to a lesser extent. it is different in countries that adhere to common law and precedential systems, of course the role of jurisprudence will be much more important (rasjidi, 2004: 79). political parties are not used as a tool to fight for the interests of the people at large, but instead become an arena for exploiting personal wealth and ambition. even though the criminal act of corruption is a very serious problem, because the criminal act of corruption can endanger the stability and security of the state and society, endanger social, political and economic development of society, it can even damage democratic values and national morality because it http://creativecommons.org/licenses/by-nc-sa/4.0/ 238 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia can have an impact on the culture of corruption. the. so, it must be realized that the uncontrolled increase in criminal acts of corruption will have an impact not only limited to losses to the state and the national economy but also on the life of the nation and state. violation of the law in the criminal act of corruption is a violation of social rights and economic rights of society, so that the criminal act of corruption can no longer be classified as an ordinary crime but has become an extraordinary crime. one of the factors of the occurrence of corruption in indonesia according to abdullah hehamahua, based on studies and experiences there are at least eight causes, namely as follows: 1) wrong state administration system 2) low compensation for civil servants 3) the greedy official 4) law enforcement doesn't work 5) because law enforcement does not work where law enforcement officers can be paid starting from the police, prosecutors, judges and lawyers, the sentences imposed on corruptors are very light so that they do not have a deterrent effect on corruptors. 6) ineffective surveillance 7) no leadership exemplary 8) community culture that is conducive to corruption, collusion, and nepotism according to the 1945 amendment to article 1 paragraph (3): indonesia is a rule of law country. as befits a constitutional state, the interests of the public must receive protection from the government, as stated in paragraph iv of the 1945 constitution. such protection is the rights of citizens which are regulated and spelled out in various laws and regulations. citizens have the right to live in safety, peace, tranquility, and avoid various crimes. whenever a crime occurs, law enforcement officials must immediately act according to their authority. with the actions taken by law enforcement officials, it is hoped that crimes will not become more widespread. when law enforcement is not good as it is today, crime will develop, corruption is increasingly rampant, bribery cases occur everywhere. for instance, the offender of narcotic crime can only be controlled from the correctional institution. finally, however good the existing laws and regulations ultimately depend on the law enforcement apparatus. in the process of law enforcement against corruption crimes, there is a fact that selective logging law enforcement practices exist. not only is this contrary to the principle of law that all citizens have the right to be treated equally before the law, but it is also treated unequally. as for the reason for the law enforcement of the police and prosecutors, not only because corruption cases are often seen as cases that bring 'blessings', especially for lawyers, but also because of the existence of the corruption crime law and the corruption eradication commission law. http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 239 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia dualism in the eradication of corruption crimes as stipulated in the corruption crime law and the corruption eradication commission law. the reasons and facts that selective logging and unequal treatment before can be put forward as follows: 1) the practice of law enforcement in selective cutting of defendants or suspects occurs when both the police, prosecutors, and community forces, as a civil society movement, allow criminals not only to roam freely and even become candidates for regional head, but also after obtaining a judge's decision even though they can be returned to certain public positions. this usually happens when a defendant, suspect or convict can be used as a source of money because they are able to pay law enforcement officers who abuse their authority. 2) the treatment of law enforcers is unequal or selective due to the nature of the corruption eradication commission law which deliberately includes the grouping of law enforcement processes into two categories. the first category is corruption which causes state losses of less than rp. 1 billion to be processed by the police and prosecutors. in this model of corruption crime enforcement, the public gives the impression that law enforcement officials, both at the central and regional levels, have flexible space to postpone investigations and investigations. as a result, the perpetrators of this model of corruption crimes show not only the absence of legal certainty in their prosecution but with this delay inviting dissatisfaction for the public. meanwhile, the second category of corruption is an act of someone who has caused state losses over idr 1 billion, whose legal process authority is through the kpk. in cases handled by the corruption eradication commission (kpk), the impact was enough to cause frightening shocks for the accused, suspect and convicted. the kpk is much more assertive and is seen as the most trusted law enforcement agency in the country. in criminal law theory, legal sanctions imposed on criminals are not only seen as laws that cause physical and psychological suffering and are limited by freedom of civil and political rights, but it is also hoped that the perpetrators of crimes will feel deterred so that they do not want to commit again. defendants in corruption cases are only sentenced to probation or even acquittal or release, so that with this verdict, corruption defendants no longer need to serve a sentence in prison. the eradication of corruption in indonesia is experiencing a setback. generally, they were sentenced to one year in prison with a probation period of two years. total that there is a tendency for judges to sentence a corruption defendant in accordance with the minimum penalty limit stipulated in the corruption criminal act. http://creativecommons.org/licenses/by-nc-sa/4.0/ 240 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia conclusion whereas criminal acts of corruption are generally related to power because with that power the authorities can abuse their power for personal, family and crony interests. corruption always develops in the public sector with clear evidence that it is with this power that public officials can pressure or blackmail justice seekers or those who need services from the government. corruption in indonesia has been classified as a crime that destroys, not only the state's finances and the country's economic potential, but also has destroyed the pillars of socio-culture, morals, politics and the legal system and national security. at present, efforts to eradicate corruption crimes through fair law enforcement still require a tough struggle. because the crime of corruption is an extra ordinary crime, which is different from ordinary crimes, the efforts that must be made require an integrated and extraordinary system as well. as an extra ordinary crime to eradicate corruption, it requires extraordinary political power so that the president as head of state becomes an important figure in mobilizing and coordinating the roles of the police, prosecutors, corruption court, and kpk to become a powerful force, so that the practice of corruption, collusion and nepotism is like bribery, price inflations, gratuities, and other misuse of authority are carried out by unscrupulous civil servants or state officials. references arief, b. n. (2000). pokok-pokok pemikiran supremasi hukum. semarang: undip. atmasasmita, r. (1982). strategi pembinaan pelanggar hukum dalam konteks penegakan hukum di indonesia. bandung: alumni. badan pemeriksa keuangan dan pembangunan. (1999). strategi pemberantasan korupsi nasional. jakarta: bpkp. budiharjo, a. (2001). perilaku menyimpang budaya korupsi. jakarta: grafindo press. ermansjah, d. (2001). memberantas korupsi bersama kpk. jakarta: sinar grafika. gunawan, g. (1994). peran kejaksaan dalam penegakan hukum dan stabilitas politik. jakarta: sinar grafika. hamzah, a. (2006). pemberantasan korupsi. jakarta: raja grafindo. harahap, y. (2002). pembahasan permasalahan d an penerapan kuhp. jakarta: sinar grafika. indonesia jaksa agung ri. (2007). “kekuatan, kelemahan, kendala dan peluang penegakan hukum dalam pemberantasan korupsid indonesia.” paper http://creativecommons.org/licenses/by-nc-sa/4.0/ journal of law & legal reform volume 2(1) 2021 241 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia presented on seminar aspek pidana pada kebijakan. universitas borobudur. lopa, b. (1997). masalah korupsi dan pemecahannya. jakarta: kipas putih aksara. mahendra, o. (2003). merajut benang yang kusut. jakarta: pancur siwah. mertokusumo, s. (1999). mengenal hukum: suatu pengantar. yogyakarta: liberty. poernomo, b. (1983). asas-asas hukum pidana. jakarta: ghalia indonesia. pond, r. (1996). an introduction to the philosophy of law. jakarta: bhatara niaga media. prabowo, i (1998). memerangi korupsi dengan pendekatan sosiologis. surabaya: dharmawangsa media press. rahardjo, s. (1983). masalah penegakan hukum. bandung: sinar baru. rahardjo, s. (2000). ilmu hukum. bandung: citra aditya. rasyidi, l. (1988). dasar-dasar filsafat hukum. bandung: alumni. santiago, f. (2006). memerangi korupsi. jakarta: cintya press. santiago, f. (2007). pidato orasi ilmiah pengukuhan guru besar. jakarta: universitas borobudur. thania, r. (2004). dasar-dasar filsafat dan teori hukum.bandung: citra aditya. http://creativecommons.org/licenses/by-nc-sa/4.0/ 242 journal of law & legal reform volume 2(2) 2021 © author(s). this work is licensed under a creative commons attribution-noncommercial-sharealike 4.0 international license published by postgraduate program, master of laws, faculty of law, universitas negeri semarang, indonesia this page is intentionally left blank http://creativecommons.org/licenses/by-nc-sa/4.0/ 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: 7fbf23d03d0da619 • 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: 7fbf23cdadc62007 • your ip: click to reveal 129.74.145.123 • performance & security by cloudflare