volume 1, issue 2, july 2018 : 95 102 | 95 community involvement in preparation of eia documents as implementation of participatory principles in law no.32 year… community involvement in preparation of eia documents as implementation of participatory principles in law no.32 year 2009 about protection and environmental management (study at pt mandiri mining corporindo) rahmat, rahmat faculty of law, universitas tomakaka email: rahmatlawyers@gmail.com abstract pt. mandiri mining corporindo (mmc) is a mining company of mangan in bonehau village, bonehau district of mamuju regency, west sulawesi province with exploration license number 418/2009 and production operation license number 333 of 2010, where production process has started since october 2010, while the area of mining business license owned by pt.mmc is 178 ha covering 178 ha area covering production forest area 125 ha and community plantation 53 ha, but a newly managed area about 30 percent. since the beginning of the opening of mining companies in this village has raised concerns about the negative impact of environmental damage, given the location of the mine directly bound to the plantation and rice fields of local communities. this is an interesting issue studied from the legal aspects of licensing, especially environmental permissions so that the problems in this research are; first what is the position of environmental impact assesment eia in pt.mmc environmental permit? second, how does the community engage in the document of environmental impact assesment eia pt.mmc implementation. the results of this study indicate that the eia position in the environmental permit is an absolute obligation and prerequisite if a company violates the environmental permit, the business license or activity may be canceled. and the pt.mmc eia issuance procedure has been in accordance with the legislation but in its implementation is not in accordance with the planning. keywords: environmental impact assesment eia of pt.mmc; environmental permit; licensing law; amdal introduction eia is a very important part of a plan for environmental or natural resource exploration activities. the legal basis of eia is contained in law number 23 year 1997 regarding environmental management, as it has been amended through law number 32 year 2009 on environmental protection and management hereinafter its implementation rule through government regulation no. 27/1999 on environmental impact analysis life and regulation of the state minister of environment no.11 of 2006 on the type of business plan and or activity that must be completed eia. thus eia is a technical means used to estimate the negative and positive impacts that will be generated by a planned activity on the environment, considering that in the preparation of eia documents it is necessary to https://creativecommons.org/licenses/by-sa/4.0/ mailto:rahmatlawyers@gmail.com volume 1, issue 2, july 2018 : 95 102 | 96 community involvement in preparation of eia documents as implementation of participatory principles in law no.32 year… involve the public widely and openly,1 as it is the principle of participative in law number 32 of 2009 on the protection and management of the environment. with the implementation of a participatory eia, then decision-making on the plan of an activity has been based on consideration of ecological aspects. from the above description, then the problem we face is how malaksanakan development that does not damage the environment and natural resources, so that development can improve the environmental capability in supporting the continuation of development as a whole. with the support of environmental capabilities that are maintained and built in harmony and balance, the implementation of development, and the results of development can be implemented and enjoyed on an ongoing basis from generation to generation. the mining business is one of human effort to improve the quality of its economy, because the mining industry promises prosperity and prosperity of the people. but behind it there is also a big threat to the environment if the mining business management is done irresponsibly. mamuju district, west sulawesi province is an area rich in natural resources potential in the form of gold, oil, natural gas, coal and manganese materials. one of the areas with potential coal and manganese mines, is bonehau village, bonehau district, mamuju district with an area of 96,176 km2, which can even be assumed that it could damage the tourism potential in other regions due to the lack of attention to environmental sustainability that may affect the visit or the decision of the tourists who participate in providing foreign exchange for regional development.2 among the companies that have a mining business license are pt. mandiri mining corporindo (mmc) with exploration license no. 418/2009 and production operation license no. 333 of 2010, which is engaged in mining of manganese, where the production process has started since october 2010. the area of mining business license owned by pt.mmc is 178 ha covering a production forest area of 125 ha and community plantation of 53 ha. but the newly managed area is about 30 percent. since the beginning of the opening of mining companies in the village of bonehau has caused pros and cons in the community, where some people judge if the socialization is not done by the company or local government, so it is feared the opening of manganese mining company will cause the impact of environmental damage in various sectors, directly adjacent to the plantations and rice fields of local communities, as hasmin, a local youth figure (author interview on 19 march 2012). it is, therefore, necessary to have a comprehensive assessment of the environmental law instruments, existing licensing laws and their impact on the communities affected by the development of manganese mining 1 baharuddin, h. 2008. hak gugat lembaga swadaya masyarakat (lsm) dalam rangka kontrol terhadap pelayanan publik, pt. umitoha ukhuwah grafika: makassar. 2 bahari, a. f., & ashoer, m. (2018. pengaruh budaya, sosial, pribadi dan psikologis terhadap keputusan pembelian konsumen ekowisata. jurnal minds: manajemen ide dan inspirasi, 5(1), 68-78. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 95 102 | 97 community involvement in preparation of eia documents as implementation of participatory principles in law no.32 year… business through an eia study. this study will examine eia as an important instrument in every environmental permit, and how it is implemented in pt.mmc that manages manganese mines in bonehau village, mamuju district, west sulawesi province. for that matter, this study formulates the following issues: how is the implementation of pt. mmc preparation eia? and how is community involvement in the eia document team of pt. mmc ? method this article uses legal research with an empirical approach and forms the formulation of the problem set out to review and provide an analysis of the implementation of eia pertamabangan business (study at pt. mandiri mining corporindo in mamuju district, west sulawesi province). analysis and discussion implementation of pt.mmc eia preparation against the implementation of eia pt.mmc, a survey of thirty respondents comprising communities around the pt.mmc mining site, measured by participation and community involvement in the implementation of the eia. the results of the interviews and questionnaires to measure community knowledge on eia are arranged in the form of tables as follows: table.1 public knowledge of eia no opinions responden frequency percentage 1. 2. 3. do not know know some ever heard 20 3 7 70 5 25 total 30 100 source: primary data, 2016 in the table above there is 70 percent of people do not understand about the eia and only 30 percent who know some and have heard about the eia. furthermore, the researchers conducted a survey of community involvement in the socialization of eia pt.mmc, found the following things, as much as 10 percent of respondents answered that community involvement only in the early stages of socialization and discussion eia course, the remaining 90 percent said no even not know about the existence socialization eia pt.mmc, more fully illustrated in the following table. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 95 102 | 98 community involvement in preparation of eia documents as implementation of participatory principles in law no.32 year… table 2. community involvement in eia socialization no opinions responden frequency percentage 1. 2. 3. there is socialization at the stage of announcement and discussion of eia there is no do not know 5 20 5 10 80 10 total 30 100 source: primary data, 2016 from the data presented above, it is clear that in the implementation of the preparation of eia pt.mmc has not maximally involved the community so that the participative principles explicitly stipulated in article 26 paragraph (1) to paragraph (3) of law no.32 of 2009, protection and management of the environment, in the article it is explained that the eia document is prepared with the involvement of the community in a transparent manner, especially the people who will be affected by a business activity. the question that arises then is whether or not the public involvement in the preparation of the eia document, the pt.mmc mining business license can be reviewed ?. administrative law enforcement instruments are part of the rule of law (besturen), then the enforcement of state administration law is subject to general principles (government law), namely the principle of validity (rechtmatigheid van bestuur), the principle of efficiency and effectiveness (doelmatigheid an doeltreffendheid), the principle of openness openbaarheid van bestuur) and the principle of planmatigheid (planmatigheid).3 mas achmad santosa stated that the administrative law enforcement devices in a legal system and the government should at least include five devices which are prerequisites for the effectiveness of administrative law enforcement in the environmental field4. the five devices are : 1. permission, which is utilized as a control and control device 2. conditions of consent with reference to eia, environmental quality standards, legislation 3. structuring control mechanism; 4. the presence of adequate supervisory officials in both quantity and quality 5. adminisrative sanctions 3 aditia syaprillah, 2016, penegakan hukum administrasi lingkungan melalui instrumen pengawasan, jurnal bina hukum lingkungan, p. 103, vol.i no.1 oktober 2016. 4 ibid, hal, 104 https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 95 102 | 99 community involvement in preparation of eia documents as implementation of participatory principles in law no.32 year… there is a model of law enforcement of the administrative environment with some kind of administrative sanctions that are usually applied to violations committed by the perpetrators of activities are: 1. bestuursdwang (government coercion). 2. withdrawal of favorable decisions (permits, subsidies, payments, and so on) 3. the imposition of forced money by the government (dwangsom). 4. imposition of administrative fine (administrative boete).5 this view is a form of administrative law enforcement developed in the netherlands, which is expected to be a comparator in the formation and practice of administrative law in indonesia. a pyramid form in enacting sanctions in the enforcement of environmental law is the imposition of administrative sanctions as mentioned above applied systematically and gradually (ranging from mild, medium to heavy), uuplh set the implementation of three types of administrative sanctions namely: 1. coercion of government article 25 paragraph (1) 2. payment of a certain total of money article 25 paragraph (5) 3. revocation of business license article 27 paragraph (1)6 that enforcement of environmental law in the environmental field has several strategic benefits compared to other law enforcement devices (civil and criminal) such benefits are as follows: 1. enforcement of environmental administration law can be optimized as a preventive tool 2. enforcement of administrative law (which is prevention) can be more efficient in terms of financing than criminal and civil law enforcement. financing for administrative law enforcement includes routine field inspection costs and cheaper laboratory testing compared to evidence collection efforts, field investigations, hiring expert witnesses to prove causality (causality) in criminal and civil cases. 3. the enforcement of the administrative law has more ability to invite community participation.7 administrative law enforcement devices in a legal and administrative system should at least include permits, permit requirements with reference to eia, environmental 5 rahmat, 2015, hukum perlindungan dan pengelolaan lingkungan hidup, the phinisi press, yogyakarta, hal 33. 6 helmi, 2012. hukum perizinan lingkungan hidup, sinar grafika, jakarta. hal-27 7 loc.cit, hal 35 https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 95 102 | 100 community involvement in preparation of eia documents as implementation of participatory principles in law no.32 year… quality standards, statutory regulations, regulatory oversight mechanisms, the presence of regulatory authorities and administrative sanctions.8 these five devices are the preliminary requirements of the effectiveness of environmental administration enforcement. officials authorized to impose administrative sanctions of governmental coercion and payment of a certain total of money are the governor. the governor may transfer the authority to the regent / mayor. for the application of administrative sanction in the form of revocation of business license, the authorized person is the officer issuing the business license concerned. the governor is only authorized to propose the revocation of a business license to the authorized official issuing the permit. therefore, based on the above studies, the mamuju district government of west sulawesi province can perform administrative actions in the form of a recommendation to improve the eia document of pt. mandiri mining corporindo (mmc). community involvement in assessment team of pt.mmc eia document the eia document assessment shall be undertaken by the eia appraisal commission to assess the eia documents of strategic business and/or activities, located over one province, located in the disputed territory, in the ocean spaces, and/or their location across the borders of the republic of indonesia with other countries. in the implementation of regional autonomy, for the provincial level, the eia document assessment is undertaken by provincial development planning agency at sub-national level (bappeda), which is to assess businesses and/or activities that are located in excess of one district. for regency/municipality level is also available the assessment team is the officials who have received the certificate of appraiser (eia). the eia document assessment is undertaken for several documents and includes assessments of administrative completeness and document contents. as for the documents assessed, include : 1. assessment of the terms of reference document. 2. assessment of environmental impact analysis documents. 3. assessment of environmental management plan. 4. assessment of environmental monitoring plan. the based on the results of research related to the implementation of pt. mmc amdal/eia issuance as the holder of a business license for manganese mine management in bonehau village, bonehau subdistrict, mamuju district, west sulawesi province. based on the author's interview with the head of bappedalda of mamuju district as the institution issuing the environmental permit, according to him pt.mmc has fulfilled 8 gatra, dwi, et al. "stagnancy of land use arrangement former cultivation rights." substantive justice international journal of law 1.1 (2018): pp. 1-8. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 95 102 | 101 community involvement in preparation of eia documents as implementation of participatory principles in law no.32 year… all the administrative requirements for the issuance of its environmental permit, but in the implementation acting as the assessment team are the officials led by the head of bappeda (development planning agency at sub-national level) formed by the bupati without involving the affected communities. in government regulation no. 27/1999 on an analysis of the environmental impacts, it is explained that the amdal/eia assessment team's membership consists of government elements, affected community representatives, universities/experts, and non-governmental organizations. there is a kind of ambiguity in eia policies in which the document is placed as a scientific environmental feasibility study that serves as a tool for decision-making in development. however, the assessment commission charged with assessing eia consists of the majority of representatives of government agencies that reflect heavy bureaucracy and advocacy representatives. from the composition there may result in the following: (1) environmental feasibility decisions are dominated by votes based on bureaucratic interests; (2) community and ngo representatives as counterbalance forces can easily be captured or co-opted due to various factors; (3) the decision is quite difficult to achieve because the dominant is not an objective scientific consideration but the interests of government or interests of society / ngo unilaterally. the eia assessment process should be an important instrument in the management of natural resources and environment, adhering to the principle of prudence in order to maintain the sutainable potential of natural resources that are limited in nature such as mining commodities, especially if the natural resources is a buffer for community life, because the community itself is a resource for regional development, as well as to pt.mmc as the initiator or proponent of the eia should voluntarily have the awareness to abide by implementing environmental management plans in accordance with the principles set forth in law no.32 of 2009 environmental protection and management is the principle of sustainability. conclusion based on the description of the discussion that has been raised, the conclusions that can be drawn on the two formulations of the problem are as follows: implementation procedures for the preparation of eia pt. mandiri mining corporindo (mmc), does not involve communities that will be affected by mining operations, so it is not in line with the participative principles as referred to in law no. 32 of 2009 on the protection and management of the environment. similarly to the evaluation and assessment of eia documents of pt. mandiri mining corporindo, the elements involved in the eia assessment team/commission which are still dominated by the bureaucratic elements are not in line with the participative principles. a regulation that reinforces licensing supervision is more https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 95 102 | 102 community involvement in preparation of eia documents as implementation of participatory principles in law no.32 year… selective for every business activity that manages natural resources as a concrete form of environmental protection and management. in strengthening the regulation as the first suggestion above, one of the important material, content, and substance are regulated is the review and even cancellation of a business license if the procedure of preparing the company's eia proved not to involve the affected community. reference aditia syaprillah, (2016), penegakan hukum administrasi lingkungan melalui instrumen pengawasan, jurnal bina hukum lingkungan, p. 103, vol.i no.1 oktober 2016. andi hamzah, (2005). penegakan hukum lingkungan, sinar grafika, jakarta. bahari, a. f., & ashoer, m. (2018). pengaruh budaya, sosial, pribadi dan psikologis terhadap keputusan pembelian konsumen ekowisata. jurnal minds: manajemen ide dan inspirasi, 5(1), 68-78. baharuddin, h. (2008). hak gugat lembaga swadaya masyarakat (lsm) dalam rangka kontrol terhadap pelayanan publik, pt. umitoha ukhuwah grafika: makassar. gatra, dwi, et al., (2018), "stagnancy of land use arrangement former cultivation rights." substantive justice international journal of law 1.1. h.j.mukono, (2015), kedudukan amdal dalam pembangunan yang berwawasan lingkungan yang berkelanjutan (sutainable development), jurnal kesehatan lingkungan vol.2 no.1. rahmat, (2015). hukum perlindungan dan pengelolaan lingkungan hidup, the phinisi press, yogyakarta undang-undang dasar negara republik indonesia tahun 1945 undang-undang no.23 tahun 1997 tentang pengelolaan lingkungan hidup undang-undang no.32 tahun 2009 tentang perlindungan dan pengelolaan lingkungan hidup https://creativecommons.org/licenses/by-sa/4.0/ |129 volume 1, issue 2, july 2018 : 129 137 establishment of village regulations in realize autonomy village establishment of village regulations in realize autonomy village roy marthen moonti faculty of law, universitas gorontalo email: roymoonti16@gmail.com abstract provision of regional autonomy is the granting of authority and flexibility to regions to manage and utilize regional resources optimally, of course, the granting of such authority must be balanced with the establishment of adequate regulations. however, there are still many problems related to the formulation of regulations, especially the village regulations. as long as government-cooled development starts from the lowest levels of government, the village has not proceeded as desired. the purpose of this study to determine the status of village rules in autonomy village governance system. the research method used in the preparation of this research is the normative juridical method that is in answering the problem used the legal point of view based on the applicable law regulation, to then be connected with the reality in the field related to the issues to be discussed. village regulations serve as indicators in the successful implementation of village autonomy. in law number 6 year 2014 article 115 letter b and e jo article 112 paragraph 1 stipulates the provision that the regency / municipal government shall supervise and administer the village government which in the case of village regulation in the form of guiding the formulation of village regulation and village head regulation as well as evaluating and supervision of village rules. keyword: village; village regulation; autonomy introduction of the 1945 constitution of the republic of indonesia article 1 paragraph (3) which states that the state of indonesia is a state law.1 it aims to create legal order and legal certainty for the life of government organizations in indonesia, which is based on law. the unitary state of the republic of indonesia based on the law (rechtsstaat) is not based on the mere power (machtsstaat) which is clearly defined in the body of the constitution of the republic of indonesia year 1945.2 provision of regional autonomy as widely as possible means giving authority and flexibility to the region to make the regional resources can be utilized optimally, although the emphasis of autonomy is placed at the level of regency / city, but the essence of 1undang undang dasar negara republik indonesia tahun 1945 pasal 1 ayat 3 2dasril rajab, hukum tata negara indonesia, rineka cipta, jakarta, 2005, hal. 74 https://creativecommons.org/licenses/by-sa/4.0/ |130 volume 1, issue 2, july 2018 : 129 137 establishment of village regulations in realize autonomy village independence should start from the level of government at the lowest level, the village as a support area at a higher level.3 the course of the state history of this republic, the arrangement of the village has undergone several changes since the colonial age, regeeringsreglement, which was the beginning of the village administration. at least there are some rules of legislation that emerged since 1945, among others, law no. 1 of 1945 on the status of the village and the power of the national committee of the region, the decree of the mprs no. iii / mprs / 1960 on the outline of the planet development pattern of first stage 1961-1969, law no. 5 the year 1979 on village government, pp. 76 of 2001 on general guidelines on village regulation, pp. 72/2005 on villages, government regulation no. 47 of 2015, law no. 6 of 2014 on villages, hereinafter referred to as the village law. refer a statement about village autonomy that:4 the village is a unitary legal community that has its original structure based on special privileges of origin. the basic concept of thinking about village governance is diversity, participation, indigenous autonomy, democratization and community empowerment. observing village geography is a result of geographical, social, political, and cultural manifestations in one region and having a reciprocal relationship with other regions,5 the definition is, in fact, the village is an important part for the existence of the indonesian nation because the village is the smallest unit of this nation that shows the diversity of indonesia. as long as it is proved that diversity has become a support force for the existence of a nation. thus the strengthening of the village becomes a thing that cannot be negotiable and can not be separated from the development of this nation as a whole. thus, the existence of the village needs to be empowered and protected, especially in the exercise of its authority. historically, the village was the forerunner to the formation of political and governmental society in indonesia long before the nation was formed. the social structures that exist in similar areas of villages, indigenous peoples, and others have become social institutions that have a very important position. the village is an autonomous institution with its own traditions, customs, and laws and has an independent tendency. this is demonstrated, among other things, by the high level of diversity that the village may be the most concrete form of the nation. however, in law number 23 the year 2014, it is mentioned that villages in districts/municipalities can gradually be changed or adjusted their status to urban village according to the proposals and initiatives of the village government 3thomas, pengelolaan alokasi dana desa dalam upaya meningkatkan pembangunan di desa sebawang kecamatan sesayap kabupaten tana tidung. jurnal pemerintahan integratif, volume 1 nomor 1, 2013, hal.5164 4 haw widjaja, 2003. pemerintahan desa/marga. pt. raja grafindo persada. jakarta. hlm. 3. 5 r. bintaro, dalam interaksi desa – kota dan permasalahannya (jakarta: ghalia indonesia, 1989). https://creativecommons.org/licenses/by-sa/4.0/ |131 volume 1, issue 2, july 2018 : 129 137 establishment of village regulations in realize autonomy village together with the village consultative board established with the regional regulation. assuming that people in the region are more characteristic of urban communities.6 in connection with the enactment of law number 12 the year 2011 on the establishment of laws and regulations, village regulations are not explicitly regulated. previously in law no. 10 of 2004 and the minister of home affairs regulation no. 17 of 2006 on the gazette and regional news stipulates that village regulation is enacted in the regional news. although law number 12 the year 2011 does not stipulate explicitly about village regulations, it does not mean that law number 12 the year 2011 does not recognize village regulations as legislation. village regulations are still recognized as legislation under the provisions of article 8 of law number 12 the year 2011 which reads:7 1. types of legislation regulations other than those referred to in article 7 paragraph (1) include the rules established by the people's consultative assembly, the people's legislative assembly, the regional representative council, the supreme court, the constitutional court, the supreme audit board, the judicial commission, bank indonesia, a minister, a body, body or commission of the same level established by law or government on the order of the act, provincial people's legislative assembly, governor, regency / municipal house of representatives, regent / mayor, village head or equivalent. 2. the legislation, as referred to in paragraph (1), is acknowledged to exist and has binding legal force as long as it is ordered by a higher legal regulation or is established on the basis of authority. based on the above background the author takes a problem formulation in this research is how the position of village rules in the autonomous village government system. method the research method used in the preparation of this research is the normative juridical method that is in answering the problem used the legal point of view based on applicable law8 to be further connected with the reality in the field related to the issues to be discussed.9 analysis and discussion position of village rules in autonomy village governance system the village government is a formal symbol of the village community. the village government as the lowest authority institution, in addition to having the original authority to 6haw widjaja. otonomi desa merupakan otonomi yang asli bulat dan utuh, raja grafindo,jakarta, 2004,hal.4 7 pasal 8 undang undang nomor 12 tahun 2011 tentang pembentukan peraturan perundang undangan. 8 nurul qamar, et.al. metode penelitian hukum, social politic genius (sign), 2017. hal, 50 9 bambang sunggono, metodologi penelitian hukum, raja grafindo persada, jakarta, 2002, hal.43 https://creativecommons.org/licenses/by-sa/4.0/ |132 volume 1, issue 2, july 2018 : 129 137 establishment of village regulations in realize autonomy village regulate its own household (autonomous authority) also has the authority and power as a gradual delegation from the government above it. the village government is organized under the leadership of a village head and his or her assistant village head in organizing or running village governance.10 if we trace the history of village setting we can start in 1854, the dutch colonial government issued regeeringsreglement which was the forerunner of the arrangement of the region and the village. in article 71 or article 128.i.s. affirming the status of the village, firstly that the village which is the regulation is called inlandsche gemeenten for the approval of the regional head is entitled to elect his own village leader and government. secondly, that the village head was given the right to organize and manage his own household by taking into account the regulations issued by the governor-general or from the regional head (resident), the governor-general shall safeguard that right against all violations.11 the regulation has also succeeded in promoting the advancement of village legal status as the owner of its natural resources, in terms of legal history studies, it can also be observed that the regulation of the village as mentioned above has the potential to generate debate among academics as well as internal colonial government. according to van deventer, with the passage of village rules, the right of villages to obtain and control their own property has been given a legal basis. based on the right, the village will be able to arrange their own village income. this is important in relation to the establishment of village schools and village barns at that time.12 the existence of village rules as one form of legislation since the enactment of law number 22 the year 1999 on regional government, and from the moment stated as applicable then as one of the tasks of the village representative body is a body formed as the realization of democracy at the village level. the enactment of law number 32 the year 2004 regarding regional government, still recognizes and reinforces village regulation although it still has not provided a definition or definition of what is meant by village regulation. the definition of the village rule is mentioned in article 1 of law number 10 the year 2004 on the establishment of legislation, namely the legislation regulation made by the village representative body or other names together with the village head or other names. this definition is also used by government regulation no. 72 of 2005 which is a further regulation of the village. further things about the village regulations themselves have not been regulated in law number 32 the year 2004 or government regulation 10 dody eko wijayanto, kepala desa dengan badan permusyawaratan desa dalam pembentukan peraturan desa. jurnal independent. 11 rahardjo, pengantar sosiologi pedesaan dan pertanian,gadjah mada university press, yogyakarta, 1999, hal.12 12 ibid, hal. 14 https://creativecommons.org/licenses/by-sa/4.0/ |133 volume 1, issue 2, july 2018 : 129 137 establishment of village regulations in realize autonomy village number 72 the year 2005 firmly stated. however, both regulations have mandated that further matters concerning village rules are regulated in each region by referring to the minister of home affairs regulation no. 29 of 2006 challenging guidelines for establishment and mechanism of village rule preparation.13 the recognition of the existence of village rules and having binding legal force as long as ordered by a higher regulation or established under the authority (formal), reinforced in article 8 paragraph (2) of law number 12 the year 2011. based on article 101 of law number 12 in year 2011, all laws and regulations that are the implementing regulations of law number 10 the year 2004 are declared valid as long as they are not contradictory to the provisions of law number 12 the year 2011. thus, although law number 10 the year 2004 has been revoked the government regulation is still in effect, also the government regulation of law number 32 the year 2004 which as the implementer of the article on the village in the act, namely government unity number 72 the year 2005 regarding village. although the village government cannot simply form a village rule to elaborate a higher-level legislation if there is no order from the regulation or delegation because the original affairs or authorities held by the village are very limited. the position of the village regulation actually still includes the legislation. this is based on the provisions of article 8 of law number 12 the year 2011 on the establishment of laws and regulations:14 1. the types of legislation other than those referred to in article 7 paragraph (1) include the regulations stipulated by the people's consultative assembly, the people's legislative assembly, the regional representative council, the supreme court, the constitutional court, the supreme audit board, the judicial commission, bank indonesia, a commission, body or commission of the same level established by law or government on the order of the act, provincial people's legislative assembly, governor, regency / municipal house of representatives, regent / mayor, village head or equivalent. 2. the laws and regulations referred to in paragraph (1) are recognized and have the binding legal force to the extent required to be ordered by a higher legal regulation or established by authority. the concept of a democratic constitutional state of the existence of legislation, including the village regulations in its formation, must be based on several principles, which can be distinguished in two (2) categories of legislation formation of appropriate 13 saiful, 2014, eksistensi peraturan desa pasca berlakunya undang undang nomor 12 tahun 2011. jurnal ilmu hukum legal opinion 14 pasal 8 undang undang nomor 12 tahun 2011 https://creativecommons.org/licenses/by-sa/4.0/ |134 volume 1, issue 2, july 2018 : 129 137 establishment of village regulations in realize autonomy village legislation (beginselen van behoorlijk regelgeving), ie formal principles and material principles.15 formal principles include: 1. the principle of clear objectives (het beginsel van duideijke doelstellin); 2. the principle of the right institutions (het beginsel van het juiste orgaan); 3. the principle of necessity of setting (het noodzakelijkheid beginsel); 4. the principle can be implemented (het beginsel van uitvoorbaarheid); 5. the principle of consensus (het beginsel van de consensus). material principles include : 1. the principle of clarity of terminology and systematics (het beginsel van de duiddelijke terminologie en duidelijke systematiek); 2. the principle that legislation is easy to recognize (het beginsel van den kenbaarheid); 3. the principle of equality (het rechts gelijkheids beginsel); 4. the principle of legal certainty (het rechtszekerheids begin sel); 5. the principle of the implementation of the law according to individual circumstances (het beginsel van de individuelerechtsbedeling).16 article 5 of law number 12 year 2011 juncto article 137 of law number 23 year 2014 stipulates that the regional regulation in which includes the village regulation is formed based on the principle of the establishment of legislation, and in the formulation of laws and regulations that are regulatory, including regulations regions must also comply with the principle of content as regulated in article 6 of law number 23 the year 2014 juncto article 138 of law number 23 the year 2014. referring to the principles described above that there is another side that must be understood by those who have the power or authority in establishing the village rule, that is, those with the authority should understand all sorts of issues in depth and the background of the issues and contents that will be governed by village rules. this will be closely linked to the implementation of the above principles. village regulation is a legal instrument for the implementation of the village government in exercising the authority of the village. so that the village rule in accordance with law number 6 the year 2014 serves to organize the village government in the case of village authority to regulate the exercise of the power granted based on the right of the origin and local authority within the village area. the arrangement model can be interpreted that village rule has functioned as an instrument of the implementation of 15abdul latif dan hasbi ali, politik hukum, sinar grafika, jakarta, 2010, hal.62 16ibid https://creativecommons.org/licenses/by-sa/4.0/ |135 volume 1, issue 2, july 2018 : 129 137 establishment of village regulations in realize autonomy village village autonomy as previously explained that the position of the village is located in the regency / city area. in addition, it is necessary to observe the regulation of article 115 letter b and e jo. article 112 paragraph (1) of law number 6 the year 2014 which stipulates that the regency / municipal government shall supervise and administer the village administration, in the case of village regulation in the form of providing guidance on the preparation of village regulation and village head regulation as well as evaluating and supervising village regulation. this provision makes clear that the function of the village rule remains unchanged, ie functioning in the context of good governance. it also needs to be seen that through the regulation of law no. 6 of 2014 related to the village regulation it is clear that the reins of power and the administration of village government are in the village head. head describe bodies that in addition to implementing legislation, is also a body that establishes the village rules in order to maintain national stability.17 this confirms the position and function of bpd that has been discussed in the previous chapter. it is clear that the democratization in the village is generally carried out through the village head, with the bpd as the village parliament and the democratization of the village into an institution that participates through its supervisory function.18 this democratization is carried out within the framework of village autonomy which is actually more blurred, where the village government in accordance with law no. 6 of 2014 cannot be fully autonomous but remains in the unitary state system of the republic of indonesia. conclusion village regulation is one of the implementations of village regulations in implementing all forms of authority in the village. by him the village regulations in this case law no. 6 of 2014 which aims to organize the village government to and regulate the implementation of local-scale authority in the village. this can be interpreted that the village rule serves as an indicator in the successful implementation of village autonomy. in law number 6 year 2014 article 115 letter b and e jo article 112 paragraph (1) stipulates the provision that the regency / municipal government shall supervise and administer the village government which in the case of the village regulation in the form of guiding the formulation of village regulation and village head regulation evaluation and supervision of village rules. 17 qamar, nurul; mustamin, hikmawati; aswari, aan. local wisdom culture of bugis-makassar in legal perspective. adri international journal of law and social science, 2017, 1.1: 35-41. 18 baharuddin, hamza. functions of the house of representatives of the regional (dprd) life in making democracy in the region. jl pol'y & globalization, 2013, 14: 43. https://creativecommons.org/licenses/by-sa/4.0/ |136 volume 1, issue 2, july 2018 : 129 137 establishment of village regulations in realize autonomy village reference abdul latif dan hasbi ali, (2010), politik hukum, sinar grafika, jakarta. baharuddin, hamza. (2013). functions of the house of representatives of the regional (dprd) life in making democracy in the region. jl pol'y & globalization, 14: 43. bambang sunggono, (2002), metodologi penelitian hukum, raja grafindo persada, jakarta. dasril rajab, (2005), hukum tata negara indonesia, rineka cipta, jakarta. dody eko wijayanto, kepala desa dengan badan permusyawaratan desa dalam pembentukan peraturan desa. jurnal independent. haw widjaja, (2003). pemerintahan desa/marga. pt. raja grafindo persada. jakarta. haw widjaja. (2004). otonomi desa merupakan otonomi yang asli bulat dan utuh, raja grafindo,jakarta. matutu, mustamin daeng; latief, abdul; mustamin, hikmawati. (2004). mandat, delegasi, attribusi dan implementasinya di indonesia. uii press, yogyakarta. qamar, nurul; et.al. (2017). metode penelitian hukum, social politic genius (sign), makassar. qamar, nurul; mustamin, hikmawati; aswari, aan. (2017). local wisdom culture of bugismakassar in legal perspective. adri international journal of law and social science, 1.1: 35-41. r. bintaro, (1989), dalam interaksi desa – kota dan permasalahannya (jakarta: ghalia indonesia. rahardjo, (1999). pengantar sosiologi pedesaan dan pertanian,gadjah mada university press, yogyakarta. saiful, (2014), eksistensi peraturan desa pasca berlakunya undang undang nomor 12 tahun 2011. jurnal ilmu hukum legal opinion. https://creativecommons.org/licenses/by-sa/4.0/ |137 volume 1, issue 2, july 2018 : 129 137 establishment of village regulations in realize autonomy village thomas, (2013), pengelolaan alokasi dana desa dalam upaya meningkatkan pembangunan di desa sebawang kecamatan sesayap kabupaten tana tidung. jurnal pemerintahan integratif, volume 1 nomor 1. undang-undang dasar negara republik indonesia tahun 1945 ketetapan mprs no. iii/mprs/1960 tentang garis-garis besar pola pembangunan semesta berencana tahapan pertama 1961-1969, undang-undang no. 1 tahun 1945 tentang kedudukan desa dan kekuasaan komite nasional daerah. undang-undang no. 5 tahun 1979 tentang pemerintahan desa undang-undang nomor 6 tahun 2014 tentang desa undang undang nomor 23 tahun 2014 tentang pemerintahan daerah undang undang nomor 12 tahun 2011 tentang pembentukan peraturan perundangundangan peraturan pemerintah nomor. 76 tahun 2001 tentang pedoman umum pengaturan mengenai desa peraturan pemerintah nomor 47 tahun 2015 tentang perubahan atas peraturan pemerintah nomor 43 tahun 2014 tentang peraturan pelaksanaan undang undang nomor 6 tahun 2014 tentang desa peraturan pemerintah nomor 72 tahun 2005 tentang desa peraturan menteri dalam negeri nomor 17 tahun 2006 tentang lembaran dan berita daerah mengatur bahwa peraturan desa diundangkan dalam berita daerah peraturan menteri dalam negeri nomor 29 tahun 2006 tantang pedoman pembentukan dan mekanisme penyusunan peraturan desa https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 1 8 stagnancy of land use arrangement former cultivation rights… | 1 stagnancy of land use arrangement former cultivation rights (case study of bpn makassar) dwi gatra, syamsuddin pasamai, hasan kadir, andika prawira buana, aan aswari faculty of law, universitas muslim indonesia email: invinciblegatra@gmail.com abstract land issues still cause problems especially in terms of usage rights that are discharged, the allocation is still limited to the obsolete concept that is still applied today, while the increasingly complex needs for the development of the suitability and more appropriate. this study formulates the extent to which the city of makassar in reorganizing this concession as its purpose-built sustainably and sustainable future. this study uses empirical juridical and legal research supported by the results of observation. the results of this study describe the efforts undertaken by the government in this case bpn makassar city seem less innovative so that the impact on potential obstacles of regional development and running haltingly. keywords: stagnancy, landreform, hgu (cultivation rights) introduction the land is the most important part for human natural resources, and therefore the land is also a source of life for human beings,1 in addition to being a dwelling land can also be used to find income from the yields grown from the land in other terms can be used as the economic value.2 the existence of the economic value of the soil so many occurrences of friction-friction arising from the land,3 whether for who is entitled to occupy the land in the sense of residence or for other activities. land is no longer simply seen as an agrarian problem that has been identified as mere agriculture, but has developed both the benefits and its usefulness so that the increasingly complex negative impacts, even the land often cause shocks in the community and the spreading in the implementation of development, the country ideally immediately set precisely 1 djanggih, h., & salle, s. (2017). aspek hukum pengadaan tanah bagi pelaksanaan pembangunan untuk kepentingan umum. pandecta: research law journal, 12(2). doi: https://doi.org/10.15294/pandecta.v12i2.11677 2 syarief, e. (2012). menuntaskan sengketa tanah melalui pengadilan khusus pertanahan. kepustakaan populer gramedia. hal, 51 3 bahkan begitu besarnya nilai ekonomis tanah sehingga dapat menimbulkan konflik berkempanjangan seperti di israel dalam memperebutkan lahan palestina sejak tahun 1948. lihat: syarief, e. (2012). menuntaskan sengketa tanah melalui pengadilan khusus pertanahan. kepustakaan populer gramedia. hal,2 https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 1 8 stagnancy of land use arrangement former cultivation rights… | 2 in order to overcome the problem of poverty, population unevenness, the geographical position of indonesia, centralization of development, and the impact of abandoned land.4 human dependence is so great on the land, both for the needs of settlements and as a source of livelihood, while the stock of land is very limited both amount and extent fixed5 and not increase in all dimensions of human needs. the imbalance between the quantity and area of land available and the increasing need for use causes the land to have a very important meaning, so that 2 state intervention through its apparatus in the land law is an absolute. unbalanced between the supply of land and the need for the soil, has caused many problems in many ways. legal security in indonesia contains pre-emtive elements as effort to prevent conflict,6 the statement indicates the existence of an effort with a legal certainty approach through this study presents the solution of the problem, also in overcoming the land problem, and supported by the statement that every human being would want the protection and guarantee of legal certainty.7 law no. 5/1960 on agrarian mainstream (uupa) on the definition of state land is found in government regulation no. 8 of 1953 (l.n. 1953, no. 14, t.l.n. no. 362), and in the government regulation the state land is interpreted as land occupied full by country.8 the substance of this country's land notion is that the lands are indeed free of the inherent rights on the land, whether western rights or customary rights (vrij landsdomein). the issuance of uupa which states the notion of state land is asserted not fully controlled but is a land which is directly controlled by the state then gives meaning that the country is constructed not as the land owner. the state as a people's power organization acting as the governing body, which is authorized in the following terms: 1. organize and maintain allotment, use, inventory and maintenance; 2. determine and regulate the rights that may belong to (part of) the earth, water and space; 4 rahmi, e. (2010). eksistensi hak pengelolaan atas tanah (hpl) dan realitas pembangunan indonesia. jurnal dinamika hukum, 10(3), 339-348. 5 djanggih, h., & salle, s. (2018). aspek hukum pengadaan tanah bagi pelaksanaan pembangunan untuk kepentingan umum. pandecta: research law journal, 12(2). 6 aswari, a., pasamai, s., qomar, n., & abbas, i. (2017). legal security on cellphone trading through electronic media in indonesia. jurnal dinamika hukum, 17(2), 181-187. 7 rahman, s., & passamai, s. (2017). regional government functions in land procurement for development for public interest. adri international journal of law and social science, 1(1), 10-17. 8 erwiningsih, w. (2009). pelaksanaan pengaturan hak menguasai negara atas tanah menurut uud 1945. jurnal hukum ius quia iustum, 16. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 1 8 stagnancy of land use arrangement former cultivation rights… | 3 3. determine and regulate the legal relationships between persons and legal acts concerning the earth, water, and space. the aim is to realize what is outlined in article 33 paragraph (3) of the 1945 constitution, that the earth, water, and natural resources contained therein, whose control is assigned to the state of the republic of indonesia shall be used for the greatest prosperity of the people, abandoned, meaning deliberately left in a state not utilized, because such things will harm the community and again hamper the development of the government continues to strive as the reality there are still many right to effort (hgu) is still temporary in makassar and requires the concept of arrangement returns that suit the needs of the community to be more appropriate. uupa article 28 paragraph (1) states that the right to use enterprises is the right to cultivate land directly controlled by the state within a certain period of time as set forth in article 29 for agricultural, fishery, or livestock enterprises. based on this understanding, hgu is a right granted by the state to certain legal subjects with certain conditions also to manage and cultivate state lands with an orientation as already described in the loga. the right of the indonesian nation in the control of the land actually has a common element that is civil and element of the task of authority is public.9 the legal debate always arises when the hgu in indonesia in which regulate agriculture, fishery and livestock ends, it is related to legal issues also arise socio-economic problems of people who depend on agriculture, fisheries and livestock, in addition to agriculture, fisheries, and animal husbandry in addition to being the centers of economic growth for the country is also a center of poverty for the community and high coefficient index figures. poverty and social inequality that then make the root of land disputes happen everywhere. land disputes will not occur if social justice requirements can be met by the state as mandated by pancasila and the 1945 constitution, or at least the existing social inequality narrows. based on the above background, the study of "stagnation of land use arrangement forms (case study of bpn makassar)" formed a formulation of the problem which, if clearly according to the factors that determine the process of division of former land of hgu needs to be rearranged, then what is the extent of the rearrangement made by the bpn kota makassar in the designation and distribution of former hgu land? 9 unsur kepunyaan dalam pelaksanaanya bersifat abadi dan tidak memerlukan campur tangan kekuasaan public, namun unsur tugas kewenangan yang bersifat public dan tidak dapat dilaksanakan sendiri oleh masyarakat, oleh karena itu dalam pelaksanaannya diserahkan kepada negara sebagai organisasi tertinggi dalam kekuasaan. lihat: lakburlawal, m. a. (2016). akses keadilan bagi masyarakat adat dalam penyelesaian sengketa tanah ulayat yang diberikan hak guna usaha. jurnal hukum acara perdata adhaper, 2(1), 59-75. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 1 8 stagnancy of land use arrangement former cultivation rights… | 4 method this research was conducted at the office of the national land agency (bpn) of makassar city with a legal research approach mix legal research that aims to describe the law in social context juridical plus the use of participatory observation techniques that also describe the method of observation in the hgu problem where researchers position themselves as participants others are being observed. this review sees the need for legal review of the rearrangement, designation and distribution of former rights of land to secure land tenure law, and it is practical to be able to provide an understanding of legal review of the re-arrangement, designation and distribution of exto the community as well as provide the concept of thinking to develop the re-arrangement of former hgu in addition to efforts that have been made so far for maximum utilization. analysis and discussion condition of landreform and distribution of used land hgu of business in makassar the extension of hgu regulated in article 28 to article 34 of the uupa is further described in government regulation no. 40/1996 on right of use, right to use and land use right hereinafter referred to as pp no. 40 year 1996.10 holders of hgu have the right to control and use the land they own to carry on business in agriculture, plantation and animal husbandry. in order to support the business, the hgu holders are entitled to control and use other natural resources located on the land, taking into account the prevailing provisions and interests of the surrounding community, which are held to meet the needs of modern society today.11 the extension of hgu is a form of success in carrying out the optimal function of the right holder or the owner of the right of effort, this success is certainly a benchmark that hgu is a right that can functionally provide space for legal subjects to be able to jointly invest in the field agriculture, plantation, and animal husbandry. thus, this is certainly a means and infrastructure in the effort of natural resources development and become a means of infrastructure support in the future. the reason why the makassar city cards permit the extension of the right to operate because it is considered to be able to improve the quality and quantity of production in running the business in a sustainable way. this is surely a form of restructuring and distribution of 10 mahadewi, a. a. i. d. (2013). pengaturan prosedur pembatalan sertipikat hak atas tanah yang merupakan barang milik negara. jurnal magister hukum udayana (udayana master law journal), 2(3). 11 ginting, d. (2011). reformasi hukum tanah dalam rangka perlindungan hak atas tanah perorangan dan penanam modal dalam bidang agrobisnis. jurnal hukum ius quia iustum, 18(1), 63-82. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 1 8 stagnancy of land use arrangement former cultivation rights… | 5 former land of hgu by kantah kota makassar although in this case it has not been designated as former hgu because the extension is still done again. the period of twenty-five years may be a measure of the restructuring that is also carried out by the makassar city census as required by the applicable laws, through the arrangements made by extending the tenure of the right, so that this policy certainly helps in the development of the source natural resources of makassar city that exist in a maximum and sustainable, and reduce the potential for conflict.12 the related transition of hgu shall be registered at the makassar city land office if the transition is made through sale and purchase (except auction), exchange, participation in capital and grant, it must be done by the deed of the land deed, while the transfer of rights made through the sale and purchase by auction must be proven by auction report, but if the transfer of right to the business is due to inheritance, it must be proven by a will or inheritance certificate. conflict in society often occurs because of legal inconsistency and also weak law enforcement. weakening of the land administration system is the impact of various factors, including: (a) legal awareness of the community,13 (b) high administrative costs, (c) the passive authority to administer the administrative system. the transition of hgu is certainly a form of change to the rights or status of a right itself, this transfer is inseparable from the change of rights to land rights to make the land more manageable properly, but this is not as easy as turning the palm of the hand because this hgu is the right given by the government through the agency bpn makassar city to be managed destined just for the agriculture and plantation. this is certainly not in accordance with the expectations for each holder of hgu so that sometimes the optimal form to be done rearrangement of land allocation and the former hgu land is considered less precise. further efforts undertaken by bpn makassar city that is changed to the right use of the building or the right of management because it can guarantee a right to land to make the land is not a land abandoned or land with no use or non-productive again, although the effort went smoothly but the right further management becomes ambiguous as happens in the makassar city square 12 bandingkan dengan berbagai permasalahan agraria selama ini, lihat: s. syahyuti. peran strategis departemen pertanian terhadap reforma agraria di indonesia dalam konteks otonomi daerah. pusat penelitian dan pengembangan sosial ekonomi pertanian. 13 urgensi legalitas formal kepemilikan tanah masih rendah oleh masyarakat, teori efektivitas hukum, lihat: yudho, w., & tjandrasari, h. (2017). efektivitas hukum dalam masyarakat. jurnal hukum & pembangunan, 17(1), 57-63. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 1 8 stagnancy of land use arrangement former cultivation rights… | 6 (karebosi) under which there is a right to use the basement that has the potential to inhibit the continuity of various aspects of life to be sustainable.14 15 back to the issue of the transfer of rights, of course, talking about the rights of land in the basic law of article 2 paragraph (2) letter (a) states that the regulation of the implementation and the use of real maintenance is also the right of the state, and the right of the state of course that right has been granted to legal entities as well as individuals is deemed capable and able to perform maintenance and designation of hgu in order to optimize the land so that formerly hgu land can still be rearranged by the transfer of rights itself, but it should be emphasized that as long as it does not cause things that can hinder the orientation of the arrangement / management back. the transfer of rights is deemed to be more prosperous for the land because with the transfer of rights to the land, it is certainly more open space in the re-allocation of land, it is of course more common to determine the former land of hgu can be done reordering, in the hgu we only often encounter that the land can only optimized by way of agriculture, fisheries and plantation. so many companies that when having this hgu has expired and also has been done extension then after that to be able to do the rearrangement is usually by the transfer of rights to the right to use the building and or management rights of course this is a new step in the arrangement and designation of land used hgu itself, for example as applied to karebosi link kota makassar. each transition with this other right as in makassar city must be re-registered at the local land office, so registration is intended as a form of strong proof. the transition of hgu in the framework of designation and distribution of former hgu able to guarantee the right of land is more optimal, so that it will no longer be able to find the previous land is the former hgu land into abandoned land, unusable land, and land dispute. therefore, in order to guarantee the land can not function properly, the transfer of land rights is deemed able to answer the issue so that when the right of the land is transferred its right it can be rearranged one of them with the transfer of right to use the building so that it certainly can be done the establishment of the building, which in which the building will be able to guarantee the designation and re 14 rengki irawan putra wahyudi, penerapan hak guna ruang bawah tanah sebagai lembaga baru hak atas tanah dalam perspektif perkembangan hukum tanah nasional indonesia, (tinjauan yuridis hak atas tanah – ruang bawah tanah di kawasan karebosi link di kota makassar), tesis, fakultas hukum, magister kenotariatan, universitas indonesia, 2012 15 qamar, n., mustamin, h., & aswari, a. (2017). local wisdom culture of bugis-makassar in legal perspective. adri international journal of law and social science, 1(1), 35-41. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 1 8 stagnancy of land use arrangement former cultivation rights… | 7 arrangement of hgu which has been done in some places in makassar city, as well as land management rights that occurred in hertasning square and karebosi field during the day. conclusion bpn kota makassar still has not applied new concept in doing hgu rearrangement, it is based on arrangement by using old concept that still considered more appropriate to fulfill requirement of society of makassar city in short term. the former land of hgu needs to be carried out a more innovative arrangement and prevent stagnation which aims to minimize the neglect of land and / or land so that the land is expected to become an important part in the life of the community, therefore the restructuring of ex-right land is needed in addition to raising the level people's lives can also be an income for the state. the stagnation of government efforts has many adverse effects not only for the people but also for the state, since the land that should be able to function optimally even becomes something that can not be functioned is certainly bad because the land should be a valuable item and its function. arrangement of the land should be able to be more optimal to create and grow the economic activities that exist in the vicinity, and the government through the authorized officials namely bpn makassar city should be careful in responding and reviewing matters related to the reorganization of the designation and the distribution of the former land of the right to operate, so that the target is right to the public or public interest so that the function of the land becomes optimal. reference aswari, a., pasamai, s., qamar, n., & abbas, i. (2017). legal security on cellphone trading through electronic media in indonesia. jurnal dinamika hukum, 17(2), 181-187. djanggih, h., & salle, s. (2018). aspek hukum pengadaan tanah bagi pelaksanaan pembangunan untuk kepentingan umum. pandecta: research law journal, 12(2). erwiningsih, w. (2009). pelaksanaan pengaturan hak menguasai negara atas tanah menurut uud 1945. jurnal hukum ius quia iustum, 16. ginting, d. (2011). reformasi hukum tanah dalam rangka perlindungan hak atas tanah perorangan dan penanam modal dalam bidang agrobisnis. jurnal hukum ius quia iustum, 18(1), 63-82. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 1 8 stagnancy of land use arrangement former cultivation rights… | 8 lakburlawal, m. a. (2016). akses keadilan bagi masyarakat adat dalam penyelesaian sengketa tanah ulayat yang diberikan hak guna usaha. jurnal hukum acara perdata adhaper, 2(1), 59-75. mahadewi, a. a. i. d. (2013). pengaturan prosedur pembatalan sertipikat hak atas tanah yang merupakan barang milik negara. jurnal magister hukum udayana (udayana master law journal), 2(3). qamar, n., mustamin, h., & aswari, a. (2017). local wisdom culture of bugis-makassar in legal perspective. adri international journal of law and social science, 1(1), 35-41. rahman, s., & passamai, s. (2017). regional government functions in land procurement for development for public interest. adri international journal of law and social science, 1(1), 10-17. rahmi, e. (2010). eksistensi hak pengelolaan atas tanah (hpl) dan realitas pembangunan indonesia. jurnal dinamika hukum, 10(3), 339-348. rengki irawan putra wahyudi, (2012) penerapan hak guna ruang bawah tanah sebagai lembaga baru hak atas tanah dalam perspektif perkembangan hukum tanah nasional indonesia, (tinjauan yuridis hak atas tanah – ruang bawah tanah di kawasan karebosi link di kota makassar), tesis, fakultas hukum, magister kenotariatan, universitas indonesia. s. syahyuti. peran strategis departemen pertanian terhadap reforma agraria di indonesia dalam konteks otonomi daerah. pusat penelitian dan pengembangan sosial ekonomi pertanian. syarief, e. (2012). menuntaskan sengketa tanah melalui pengadilan khusus pertanahan. kepustakaan populer gramedia. yudho, w., & tjandrasari, h. (2017). efektivitas hukum dalam masyarakat. jurnal hukum & pembangunan, 17(1), 57-63. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 56 64 juridical review the implementation of oral agreement is associated with the law of treaties and … | 56 juridical review the implementation of oral agreement is associated with the law of treaties and law number 8 year 1999 of consumer protection dian eka pusvita azis, nurhaedah faculty of law, universitas muslim indonesia dianekapusvita.azis@umi.ac.id abstract the covenant under article 1313 of the civil code is an act by which one or more persons bind themselves to one or more persons. unconsciously, verbal agreements are often made in social life and often the parties who make oral agreements reject the existence of the agreement. this research is a normative descriptive juridical research. based on this study it can be concluded that the oral agreement is legal and has the legal power to declare a person to default, but if the oral agreement is rejected/not recognized by the accused, the oral agreement has no legal power to declare the person to default, there, depending on the evidence from the parties. but verbal agreements that have been rejected / unrecognized may regain their legal power if it can be proven that an oral agreement exists or has been made. based on law no 8 of consumer protection consumer law is defined as all legal principles and rules governing relationships and problems between various parties or each other in relation to goods and / or services in the aspects of life. based on article 163 of hir and article 1865 of the civil code, any party that argues for right, then the business actor must prove it. so if the consumer demands his right to the business that endangers it, then the consumer must prove it. keywords: juridical review, oral agreement, legal agreement, consumer protection act introduction all aspects of our lives are closely related to the covenant. similarly, in everyday activities are always associated with agreements, contracts, agreements both oral and written. in making an agreement it is necessary to be prudent, moreover the agreement is made unilaterally orally without any written contract. according to article 1233 of the civil code which reads "each and every engagement is born either because of the consent, both because of the law" means the source of the engagement is the agreement and the later article 1313 civil code of contents "a covenant is an action by which one person or more binding himself to one or more people "of the two articles are open systems. this is closely related to the formulation of article 1338 of the civil code which contains "all legally-made agreements act as laws for those who make them." with this principle of freedom of contract provides an opportunity for a person to enter into any agreement so long as it is not contrary to the law, laws, public order and morals. however, in the execution of the agreement must comply with the provisions which become the condition of the occurrence of a treaty contained in article 1320 namely, agreement, skills, a certain matter and the lawful cause. https://creativecommons.org/licenses/by-sa/4.0/ mailto:dianekapusvita.azis@umi.ac.id volume 1, issue 1, march 2018 : 56 64 juridical review the implementation of oral agreement is associated with the law of treaties and … | 57 against the form of the exercise of the agreement in the oral form declared unilaterally by the party that offers the agreement inevitably the interested party in this case the second party is pressed with the interest of agreeing the contents of the agreement. not to mention the possibilities that occur in the future that is wanprestasi with large losses so that the court to face, and what if the party who did the default is negligent, broken promise, do not acknowledge or deny having oral agreement based on the background and problems that have been described above so that it is necessary to examine the extent to which the legal protection of the oral agreement if the party who did wanprestasi deny the oral agreement is linked the law of contract and law no. 8 of 1999 on consumer protection. method this research is descriptive normative juridical research. this study uses primary legal material sources consisting of laws and regulations bound by research. sources of secondary legal materials in the form of materials or related materials and explain the problem, and the source of tertiary legal materials are materials that provide information about primary legal materials and secondary legal materials related to the research. analysis and discussion the implementation of the oral agreement is related to the law of treaties and law number 8 year 1999 on consumer protection the agreement issues a commitment between the two persons who make it, in the form of an agreement may be a series of words containing promises or abilities spoken or written1 the agreement may be made by anyone, between one person and another, or between an individual and a legal entity, this is because the agreement embraces the principle of freedom of contract. the agreement is a promise of two or more parties who make an agreement, so as not to close the possibility of those promises are not met. the accomplishment of a treaty is the exercise of the things that have been agreed upon or that have been written in an agreement by both parties who have committed themselves to it. the counterpart of the achievement is a default, that is, the non-performance of an achievement or a pledge or obligation as may be imposed by the agreement on certain parties mentioned in the agreement, which constitutes a deflection of the exercise of the agreement, resulting in a loss caused by a mistake by one or the parties2 1 subekti, r. 1996: hal 1. law of agreement. jakarta: intermas. 2 munir fuady. 2001 hal 87. contract law (from a business law perspective), second book. bandung: pt. citra aditya bakti. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 56 64 juridical review the implementation of oral agreement is associated with the law of treaties and … | 58 the agreement can be done either in written form or in an oral way, and not infrequently encountered in silent agreement. oral agreements occur a lot in social life, and are often unconscious but there has been agreement, for example in shopping activities in stores, in the markets for daily needs, accounts payable with friends, and others. it can be said that oral agreements are often found in simple agreements, in the sense that they are not complicated in legal relationships and also do not cause great harm to the parties in case of default. but what matters is what if oral agreements are used on agreements that can cause major losses to the parties in the event of default. moreover, when prosecuted in the court, the alleged defendant undertakes the defense by not admitting or denying the oral agreement. making an agreement is basically not tied to a particular form. the civil code does not mention systematically the nature of the agreement. each contracting party shall have the freedom to make the agreement, in the sense that it is free to make the agreement orally or in writing. the principle of freedom of contract is a principle which gives freedom to the parties to.3 a. making or not making agreements; b. make an agreement with anyone; c. determine the contents of the agreement, its implementation, and its terms; and d. determining the form of the agreement, ie written or oral. at present, for certain treaties, there are laws that determine the covenant making in written form in the authentic deed, as follows.4: a. the grant agreement must be written in a notarial deed, except the land rights grant agreement (vide article 1682 civil code); b. the power granting agreement for installing a mortgage on a vessel shall be in writing in a notarial deed (vide article 1171); c. agreement of transfer of receivables secured by mortgages shall be written in notarial deed (vide article 1172 civil code); d. subrogation agreement must be written in notarial deed (vide 1401 sub 2 civil code); e. transitional agreements (especially sale and purchase) of land rights, except through auctions, for registered lands must be in writing in the deed of the land deed (vide article 37 of government regulation no. 24/1997); 3 salim h.s. 2003: hal 9. introduction to written civil law (bw), sinargrafika. 4 muhammad syaifuddin. 2012. contract law: understanding contracts in perspective philosophy, theory, dogmatics and legal practice. bandung: c v. mandarmaju. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 56 64 juridical review the implementation of oral agreement is associated with the law of treaties and … | 59 f. transitional agreements (especially sale and purchase agreements and grants) of ownership rights over the land of apartment units, except through auctions, shall be in writing in the deed of the land deed (vide article 37 of government regulation number 24 year 1997); g. the agreement on the transfer of title to land or property rights of the apartment units with the auction must be written in the deed of the land deed (vide article 41 of government regulation number 24 year 1997); h. the power granting agreement imposing the mortgage must be written in the deed of the land deed (vide article 15 paragraph (1) of law no. 4 of 1996); i. the mortgage guarantee agreement must be in writing in the deed of the land deed (vide article 10 paragraph (2) of law number 4 year 1996); j. the fiduciary guarantee agreement must be in writing or notarial deed (vide article 5 paragraph (1) of law number 42 year 1999); k. the firm establishment agreement shall be in writing in a notarial deed (vide article 22 of the commercial code); l. the establishment agreement of the cooperative shall be written in the deed of the official deed of the cooperative certificate (vide article 7 of law number 25 year 1992); m. the founding foundation agreement must be in written form in notarial deed (vide article 9 paragraph (2) of law number 16 year 2001); and n. the agreement of the incorporation of a limited liability company shall be written in a notarial deed (vide article 7 of law number 40 year 2007). the treaty prescribed by the law shall be applied as it shall, because if it is not applied, the legal consequences shall be unlawful treaties, thus null and void, and not giving rise to the treaty (the agreement is considered never existed) (muhammad syaifuddin, 2012: 147). oral agreements are not applicable in the treaties established by the law, in other words, as long as no law governing a treaty must be in writing, the oral agreement is still valid as a treaty binding on the parties that make it. unlawful agreements are lawful to the extent that they comply with the provisions of the criminal code article 1320 on the terms of the validity of an agreement. however, this unwritten agreement will face difficulties in terms of proof of the lawsuit filed by the court when the defendant does not recognize the existence of the agreement before the judge (article 1927 civil code "an oral verdict given outside the court can not be used for verification, except in the case of verification with witnesses allowed. "). the matter of recognition which can be made as a proof of this can be seen in the civil code of article 1923 s / d article 1928. besides the absence of recognition from the party being sued, the obstacles that may be faced are the witnesses (more than one person) who hear and see https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 56 64 juridical review the implementation of oral agreement is associated with the law of treaties and … | 60 immediately when the agreement is made (article 1905 of the civil code "the description of a witness only without other means of verification, in the court should not be trusted"). the matter of proof with this witness is contained in article 1906 s / d article 1912 civil code. on the whole of this proof we can see in the fourth (fourth) book of the civil code of evidence and expiration, namely 1) proof with tuliasan, 2) proof with witnesses, 3) proof with comprehension, 4) proof with recognition and 5) oath before the judge. in the settlement of a breach of acquisition, please note first whether the agreement made by the parties is legitimate or unlawful because it binds or does not bind it an agreement to the parties making it dependent on the legitimate or unlawful agreement made by the parties. article 1338 paragraph (1) of the civil code, reads "all legally-made agreements act as laws for those who make them". the validity or nonvalidity of an agreement can be ensured by testing it using a legal instrument. the terms of the validity of an agreement are set forth in book iii of the civil code. article 1320 of the civil code is the principal legal instrument to examine the validity of a treaty made by the parties, since that article determines the existence of 4 (four) conditions which must be fulfilled for the validity of an agreement, namely: a. agree to those who commit themselves; b. ability to make a commitment; c. a certain thing; d. a lawful cause. article 1320 of the civil code concerning the terms of the validity of the treaty, does not govern the form of a treaty, so in making the treaty, the public is freed to determine its form. making a verbal agreement remains valid, as long as it meets the requirements of the validity of the agreement set forth in article 1320.oral agreements are also valid as long as there is no law that determines that the agreement to be made must be in writing. based on such description, the oral agreement also has the legal power to bind the parties making it, so that in case of default in the oral agreement, the oral agreement can be used as a basis to declare a person to default. unconsciously in social life, oral agreements are often done. oral agreements are agreements made by parties solely by oral or mutual agreement of the parties. oral agreements are often found in simple agreements, in the sense that they are not complicated in legal relationships and also do not cause great harm to the parties in the event of default. unlike written agreements, oral agreements do not use the deed. written agreements may be made in a deed under the hand and may be made also in an authentic deed. sufficiently risky if verbal agreements are used in treaties which can cause substantial harm to the parties in the event of default, since the oral agreement https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 56 64 juridical review the implementation of oral agreement is associated with the law of treaties and … | 61 does not use a written deed that can guarantee an agreement if either party denies or has not concluded the agreement. the oral agreement in it contains a promise that expresses the declared will and is considered a constitutive element of the binding power of the covenant. a new agreement is formed when there is an encounter or a match between the promises of one party to the other.5 in an agreement it should be seen first whether there is an encounter or agreement between the promises of one party to another, which in this case is included in the terms of the validity of the agreement in article 1320 of the civil code concerning their binding agreements. the agreement in the oral form, means the submission of what is desired and requested by the party who offers to the receiving party. the promise, though expressed verbally and expressed in words and deeds, is a potential factor, the point of what is actually desired in order to affirm certain legal relations of the covenant.6 article 1320 of the civil code concerning the terms of the validity of the agreement is very important to be taken into consideration, because in deciding upon a breach of wanprestasi which is first seen is a valid or invalid agreement. if the agreement is invalid then a person alleged to have committed a non-breach can not be declared to have defaulted. this is reinforced by the judge considering article 1234 civil code which states "each engagement is to give something, to do something, or to do nothing". persons who do not engage in an engagement agreed upon in an agreement may be deemed to have committed a default. the relationship between the agreement and the engagement is that the agreement has a legal effect that causes the engagement. the agreement is the source of the law of engagement other than any other legal source. engagement is a legal relationship in the abstract sense, whereas the covenant is a legal act that creates concrete rights and obligations in the legal relationship.7 under the terms of the terms of the validity of the agreement, there is no requirement in article 1320 of the civil code which requires that an agreement be made in writing. in other words, an orally created agreement is also legally binding for the parties making it, pacta sun servanda (vide: article 1338 civil code. however, in the process of establishing a civil case, the usual evidence used by the argumentating party (vide article 163 hir) is a letter proof. this is because in a civic relationship, a letter / deed is intentionally made with the intention to 5 muhammad syaifuddin. 2012 hal 137. contract law: understanding contracts in perspective philosophy, theory, dogmatics and legal practice. bandung: c v. mandarmaju. 6 ibid, hlm.138. 7 ibid, hlm.25. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 56 64 juridical review the implementation of oral agreement is associated with the law of treaties and … | 62 facilitate the process of proof, if in the future there is a civil dispute between the parties concerned. in this case, i will take the example of the debt agreement orally. in the case of an agreement of oral debt, then other evidence instruments other than letter proof (vide: article 1866 civil code and article 164 hir) can be applied. therefore, if a party (plaintiff) wishes to postulate the existence of an agreement of oral debts to the court, the plaintiff may file a witness evidence which may explain the agreement of the oral debts. in the event that a plaintiff filed a witness to corroborate the argument on the existence of an agreement of oral debt, it is known the principle of unus testis nullus testis, affirmed in article 1905 of the civil code as follows: "the description of a witness only, without any other evidence, before the court should not be trusted" this means that a witness is not sufficient to prove an event or a covenant, since there is a minimum amount of proof in filing witness evidence, at least two witnesses, or one witnesses accompanied by other evidence, for example the recognition of the opposing party make the agreement (vide: article 176 hir) or in the case of any suspicion (article 173 hir), for example, there is already some debt paid to the plaintiff. an agreement of any kind must be an engagement therein, since the covenant is the source of the engagement. giving something is an act of surrendering ownership or by certain measures, surrendering from the enjoyment of the property.8 article 1238 of the civil code states "the debtor is negligent, if he by warrant or by a similar deed has been declared negligent, or for his own engagement, is if it establishes that the debtor shall be deemed negligent by the passage of the prescribed time". a negligent statement is a legal remedy in which the creditor notifies, reprimands, and warns the debtor when at the latest it is obligated to fulfill the performance and when that time is exceeded, the debtor is negligent.9 certain circumstances to prove a default debtor are not required negligent statements. certain circumstances, for example, namely.10 a. to ensure achievement is a fatal grace period; b. the debtor rejects fulfillment; c. the debtor admits his negligence; d. fulfillment of achievements is not possible; e. fulfillment is no longer licensed; and 8 (mariam darusbadrulzaman. 2015. the law of alliance in the third book civil code. bandung: pt. c itra aditya bakti. 9 ibid. 10j.h. niewenhuis, translation by djasadisaragih.1985. principles of legal engagement, translation by djasadinsaragih, unair-fh, surabaya. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 56 64 juridical review the implementation of oral agreement is associated with the law of treaties and … | 63 f. debtors do not perform well. this is contrary to law no. 8 of 1999 on consumer protection. as in chapter iii rights and obligations, part one consumer rights and duties article 4 point h which contains "the right to receive compensation, compensation and / or reimbursement, if the goods and / or services received are not in accordance with the agreement as appropriate." part two rights and obligations of business actors article 7 consumer protection laws on the rights and duties of business actors c points "treat or serve consumers properly and honestly and non-discriminatory. legal protection can be defined as a protection afforded to legal subjects in the form of either repressive or repressive means, whether oral or written. in other words it can be said that the protection of the law as a separate feature of the function of the law itself, which has the concept that the law gives a justice, order, certainty, benefit and peace. consumer law is defined as the whole legal principles and rules governing relationships and problems between various parties or each other related to goods and / or services within the social life. based on article 163 hir and article 1865 of the civil code, any party that argues for a right, then the party must prove it. so if the consumer demands his right to the business actor that harms him, then the consumer must prove. however, in law number 8 year 1999 concerning consumer protection article 22 and article 28, the evidentiary obligation is "reversed" (reversed proof) to be the full responsibility and responsibility of the business actor. so the provisions on responsibility and redress in the consumer protection act are lex specialists against the general provisions contained in the civil code. conclusion the oral agreement is still valid and has the legal power to declare a person to default, but if the oral agreement is denied / not recognized by the alleged infringer, the oral agreement has no legal power to declare a person to default, because the agreement is true and can also not exist, depending on the proof of the parties. this is because the presence or absence of the agreement is crucial in declaring a person to make a default, because a person can not be declared wanprestasi if there is no agreement made.oral agreements denied / not acknowledged by any of the parties making them, do not have the force of law to declare a person to default, but a verbal agreement that has been denied / unrecognized may regain its legal power if it can be proven that the oral agreement actually exists or ever made. law no. 8 of 1999 on consumer protection, consumer law is defined as the whole principles and legal rules governing relationships and problems between various parties or each other related to goods and / or services within the association of life.based on article 163 hir and article https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 1, march 2018 : 56 64 juridical review the implementation of oral agreement is associated with the law of treaties and … | 64 1865 of the civil code, any party that argues for a right, then the party must prove it. so if the consumer demands his right to the business actor that harms him, then the consumer must prove. however, in law number 8 year 1999 concerning consumer protection article 22 and article 28, the evidentiary obligation is "reversed" (reversed proof) to be the full responsibility and responsibility of the business actor. so the provisions on responsibility and redress in the consumer protection act are lex specialists against the general provisions contained in the civil code. reference aswari, aan, andika prawira buana, and farah syah rezah. "harmonisasi hukum hak untuk dilupakan bagi koran digital terhadap calon mahasiswa di makassar." kanun: jurnal ilmu hukum, volume. 20. nomor.1, (april 2018). mariam darusbadrulzaman. 2015. the law of alliance in the third book civil code. bandung: pt. c itra aditya bakti. muhammad syaifuddin. 2012. contract law: understanding contracts in perspective philosophy, theory, dogmatics and legal practice. bandung: c v. mandarmaju. munir fuady. 2001. contract law (from a business law perspective), second book. bandung: pt. citra aditya bakti. niewenhuis.j.h, 1985. principles of legal engagement, translation by djasadinsaragih, unair-fh, surabaya. salim hs, 2003. introduction to written civil law (bw), sinargrafika. subekti. r 1996. law of agreement. jakarta: intermas. code of civil law. law number 8 year 1999 on consumer protection. billy dicko stepanusharefa, tuhana, legal power of oral agreement if wanprestasi, private law vol iv no 2 july-december 2016. http: // www. online law .com / clinic / detail / lt51938378b81a3 / about-proof-agreementnot-written. http: // www. law homepage .com / 2016/04 / agreement-not-written.html. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 137 146 understanding to intergroup conflict: social harmonization and law awareness of society | 137 understanding to intergroup conflict: social harmonization and law awareness of society syahruddin nawi; muhammad syarif; aswad rachmat hambali; salle salle faculty of law, universitas muslim indonesia email: herinawy@yahoo.com abstract the development and progress of the city of makassar in line with the occurrence of disturbing conflicts, conflicts and even war between groups provide an overview of research problems regarding the erosion of nationalism, erosion of national ideology, low national character, erosion of local culture, shallow religious values, low sense of solidarity, moral decline, and ethnic fanaticism and declining character quality and declining character quality, all of which have the potential to threaten national integration and social harmony. this research method is descriptive and form of presentation in a systematic, factual and accurate description of the facts obtained. the results showed that conflict/war between groups or residents still occurred in at least six 6 regions in makassar that had caused various losses because war between groups or residents involved children or adolescents using dangerous objects. there are 30 factors, namely juvenile delinquency, multi aspects, peaceful disturbance, offensive, revenge, social, economic, jealousy, work area disputes, unemployment, ethnicity, religion, culture, wild race, women, competition, misunderstanding, social change, deprivation land, women who seize men (infidelity of women), youth group clashes, politics/parties, deception, social classes/ strata, selfishness, arrogance, ridicule, slander, conflict of interest, and government land disputes. recommendations are needed conflict resolution forum (foleko) as a preventive and repressive measure, provide guidance and counseling for members of the community, about legal awareness, social ethics and courtesy in family life and community life, and inculcation of religious values and national integrity, the authorities need to be more intensive in conducting surveillance and need to carry out routine checks on the possession of dangerous sharp objects, and it is necessary to have the social harmony creation model module and legal awareness as recommendations of this research. keywords : social conflict; legal awareness; intergroups introduction the development of the legal sector needs to be realized as a consequence of the statement of article 1 paragraph (3) of the 1945 constitution of the republic of indonesia which states that indonesia is a constitutional state. the state of indonesia is obliged to implement the development of national law that is carried out in a planned, integrated and sustainable national legal system that guarantees the protection of the rights and obligations of all indonesian people and legal awareness for all indonesian people based on the 1945 constitution of the republic of indonesia https://creativecommons.org/licenses/by-sa/4.0/ mailto:herinawy@yahoo.com volume 2, issue 2, december 2019 : 137 146 understanding to intergroup conflict: social harmonization and law awareness of society 138 | this research is motivated by the rise of war or inter-group conflicts that often occur in the city of makassar, south sulawesi province. it is often the subject of mass media news that makassar residents in various places in the city often experience conflicts that disturb the community. this incident is even called “war” between groups which sometimes involves dozens or even hundreds of members of the community. conflict is a dissociative process of social interaction that occurs when all parties in society want to achieve their goals at the same time. the term conflict is described as a state of disagreement between two parties who are trying to fulfil their objectives by opposing the opposing party.1 conflict or war between groups provides a picture of the erosion of a sense of nationalism, the erosion of nationalistic ideology, the lack of national character, the erosion of local culture, the lack of implementation of religious values, the lack of solidarity, moral decadence, tribal fanaticism, and a decline in the quality of character. cases that occur in various aspects and motives will have an impact on various regions in indonesia. as an impact and it is anticipated that those actors can cause vulnerability on a national scale, all of which have the potential to threaten national integration and social harmony as a whole. this confirms that horizontal conflict between community groups in makassar city has the potential to pose a serious threat to social harmony or national stability, so it needs to be addressed in the form of efforts to create a model of social harmony and legal awareness as an applied solution to these problems. a research program that focuses on the right model as a solution or solution to problems in dealing with social conflict/war between groups for the creation of social harmony and increasing legal awareness in the city of makassar needs to be designed, through in-depth observations to the people of makassar city in order to find the right solution with legal approach. the model for the creation of social harmony and legal awareness is expected to have the ability to build the nation’s character, love the country and reintegrate national ideology, value peace, compassion and harmony, and reduce ethnic, religious and regional fanaticism in the life of society and the state, the model is expected to strengthen local and regional integration and national integration and social harmony. the theoretical views of this study with field research use various theories to explain how violent conflicts can occur, including:2 1. the theory of cultural ecology. 2. materialist cultural theory. 3. political or political-economic theory. 1soekanto, soerjono. (1977). kesadaran hukum dan kepatuhan hukum. jurnal hukum & pembangunan, universitas indonesia, 7(6), p. 464. doi: http://dx.doi.org/10.21143/jhp.vol7.no6.742 2cahyono. (2011). fenomena konflik kekerasan. in himpunan makalah, artikel dan rubrik yang berhubungan dengan masalah hukum dan keadilan dalam varia peradilan ikahi mahkamah agung republik indonesia (pp. 493 – 509). jakarta: perpustakaan dan layanan informasi, biro hukum dan humas badan urusan administrasi mahkamah agung republik indonesia. http://dx.doi.org/10.21143/jhp.vol7.no6.742 volume 2, issue 2, december 2019 : 137 146 understanding to intergroup conflict: social harmonization and law awareness of society | 139 4. the theory of evolution-biology or biosocial. 5. psychological and psychoanalytic theories. 6. historical or particularistic descriptive theory. 7. symbolic theory. there are three factors that are closely related to the understanding and effectiveness of law, including:3 1. efforts to instill law in society, namely the use of human labor, tools, organizations and methods so that citizens know, respect, recognize and obey the law. 2. community reaction is based on the prevailing value system. that is, people can refuse or oppose or may obey the law because of compliance, identification, internalization or guarantees for the fulfillment of their interests. 3. the period of instilling the law in society, which means a long or short time during an effort to instill it is being carried out and is expected to produce results. with regard to legal behavior, an important function of the rule of law is as a guide to behavior,4 and one of the main objectives of any scientific study of law is to find the impact of law on human behavior,5 because human behavior is influenced and even shaped by social, cultural, psychological, and psychological factors. other non-law, it is inevitable to involve social sciences in legal studies. it further elaborates that human behavior in responding to legal provisions can be in the form of: a. an obedience a) unconscious compliance b) conscious obedience b. disobedience a) minor disobedience, usually in the form of passive behavior. b) severe disobedience, usually in the form of active behavior. good individual behavior that does not obey the law affects the people around him where non-compliance is done, the legal provisions are considered effective if the person’s behavior tends to obey them. the normative form of various legal systems in modern countries uses the principles as stated in indonesia’s positive law, namely article 11 algemene bepalingen van wetgeving voor indonesie (ab) stated “all populations residing in the territory of the republic of indonesia are considered to know all applicable legal provisions in indonesia. indonesia”. in fact, it is clear that legal principles are only legal fiction because it is impossible for anyone to know all the laws that apply in indonesia, bearing in mind we all 3ali, achmad. (2009). menguak teori hukum (legal theory) dan teori peradilan (judicialprudence): termasuk interpretasi undang-undang (legisprudence) (vol. 1). jakarta: kencana prenada media group, p. 126. 4ibid., p. 157. 5nawi, syahruddin. (2014). penelitian hukum normatif versus penelitian hukum empiris. makassar: pt. umitoha ukhuwah grafika, p. 17. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 137 146 understanding to intergroup conflict: social harmonization and law awareness of society 140 | understand how complex the law is in indonesia. there are rules, norms, and principles made by state institutions, some are born from the community, and some rely on moral and religious values, especially since each region has local laws, so legal learning is needed to build or shape legal knowledge. factors that influence a person’s legal behaviour are legal communication and legal knowledge.6 it is strange that obeying or not obeying the rules, using the rules or avoiding the rules is done without knowing about the actual rules beforehand, or the rules must be communicated to the public (legal learning), and the public must gain knowledge about the contents of the rules. the way in which rules are communicated is also important because there are rules that are already common knowledge; or they are part of very general and very basic knowledge (very general learning, very early). most of the rules and of course all technical rules, detailed administrative rules, must be conveyed specifically to the audience, including models of legal learning to the public or high school students. legal knowledge is an important factor in legal behaviour,7 for example, in the united states, a study was conducted to find out how many americans know the legal system. a 1973 michigan survey reported that laypeople were less aware of the law than law students. in addition, people who are more educated are more aware of the law than people who are less educated, and now the power of the influence of opinions or individual judgments on social media does not have a major influence on the behaviour of the information society,8,9 but unfortunately the phenomenon in the study area shows the tendency of people to be affected by the news. news is spread in the information media and cannot be justified.10 the term legal behaviour refers to behaviour that is influenced by rules, decisions, orders, or laws, issued by officials with legal authority.11 if someone behaves specifically or changes their behaviour specifically because of legal orders or because of government actions, or instructions or orders from the government, from the legal system, or from officials, then this is legal behaviour. if someone is driving along a road and sees speed limit signs (or sees a police officer) and slows down his vehicle, then this is legal behaviour. 6ali, achmad. (2009). op. cit., p. 162. 7ibid., p. 165. 8indahingwati, asmara, launtu, ansir, tamsah, hasmin, firman, ahmad, putra, aditya halim perdana kusuma, & aswari, aan. (2019). how digital technology driven millennial consumer behaviour in indonesia. journal of distribution science, korea distribution science association, 17(8), p. 28. doi: http://dx.doi.org/10.15722/ jds.17.8.201908.25 9agustina, dwi. (2018). peleburan realitas nyata dan maya: hoax menjadi konsumsi masyarakat global. jurnal sosiologi agama, universitas islam negeri sunan kalijaga, 12(2), p. 247. doi: https://doi.org/10.14421/ jsa.2018.%25x 10arman, muhammad, akub, m. syukri, & heryani, wiwie. (2018). pertanggungjawaban pidana pelaku penyebaran berita hoaks melalui media online. amanna gappa, universitas hasanuddin, 26(1), p. 6. doi: http:// dx.doi.org/10.20956/ag.v26i1.6332 11friedman, lawrence m. (1984). american law (wisnu basuki, trans.). new york: w. w. norton & company, p. 231. http://dx.doi.org/10.15722/ volume 2, issue 2, december 2019 : 137 146 understanding to intergroup conflict: social harmonization and law awareness of society | 141 there are four indicators that determine a person’s legal awareness:12 1. knowledge of legal regulations (legal awareness), 2. understand the contents of legal regulations (legal acquaintances), 3. attitudes towards the rule of law (legal attitude), and 4. a pattern of legal behaviour (legal behaviour). the eight values that must be realized by law are called the principles of legality,13 which state that: 1. rules must exist first, 2. this regulation must be announced/properly socialized, 3. this rule may not apply retroactively, 4. the formulation of regulations must be clear and detailed, 5. there must be no requests for impossible things, 6. there must be no conflict between rules, 7. rules must be corrected. they cannot be changed often, and 8. there must be a match between the actions of legal officials and regulations that have been issued. method this research was conducted in seven districts in makassar city, namely: 1. makassar district (bara-baraya village, east bara-baraya village, and maccini village), 2. tallo district (bungaeja beru village), 3. rappocini district (ballaparang village), 4. bontoala district (baraya village), 5. tamalate district (manuruki village, and parang tambung village), 6. panakkukang district (pampang village), and 7. mamajang district (parang village). the reason for choosing these locations is that these locations often become a place of conflict/war between groups. the research implementation will be conducted from april 2018 to november 2018. the material that will be used in this research are: a). a closed questionnaire containing various questions to obtain data from respondents who in this case were residents of the community at the specified location in the city of makassar, and b). stationery and block notes. sources of data in this study are a) primary data, i.e. data obtained directly from respondents through the distribution of questionnaires to residents in a predetermined location in the city of makassar. questionnaires were distributed to obtain data about the extent of understanding the law, legal behaviour, and legal awareness of citizens as respondents. b) secondary data processed by data obtained from certain agencies which 12rosana, ellya. (2014). kepatuhan hukum sebagai wujud kesadaran hukum masyarakat. jurnal tapis: jurnal teropong aspirasi politik islam, universitas islam negeri raden intan lampung, 10(1), p. 14. doi: https:// doi.org/10.24042/tps.v10i1.1600 13rahardjo, satjipto. (2009). hukum dan perilaku: hidup baik adalah dasar hukum yang baik. jakarta: kompas, p. 77. volume 2, issue 2, december 2019 : 137 146 understanding to intergroup conflict: social harmonization and law awareness of society 142 | in this case is data obtained from police stations, prosecutors’ offices, district and village governments in the makassar city area, south sulawesi province. the analysis technique used in this research is descriptive in the form of systematic, factual, and accurate fact representation obtained in the form of primary data through questionnaires and interviews. analysis and discussion primary data was collected through questionnaire distribution, the following are the results of research and detailed discussions through the process with a frequency distribution: influential factors influential (%) less influential (%) non influential (%) revenge factor 44 46 10 jealousy factor 26 54 20 offensiveness factor 44 42 14 economy factors 4 46 50 juvenile delinquency factor 50 32 18 religious factors 6 30 64 ethnicity factors 14 34 52 social factors 12 44 42 working area dispute factor 16 36 48 political party factor 26 44 30 male-usurping woman factor 30 38 32 hoax factor 12 25 63 selfishness factor 22 24 54 heterogenic factor 36 32 32 social stratum factor 46 30 24 arrogance factor 25 29 46 taunt factor 47 42 11 vilification factor 21 32 47 conflict of interest factor 27 30 43 government land dispute factor 17 39 44 woman factor 34 38 28 unemployment factor 31 35 34 cultural factor 14 33 53 wild race factor 31 34 35 social change factor 10 14 76 land dispute factor 32 27 41 youth clash factor 41 33 26 misunderstanding factor 39 31 30 volume 2, issue 2, december 2019 : 137 146 understanding to intergroup conflict: social harmonization and law awareness of society | 143 influential factors influential (%) less influential (%) non influential (%) competition factor 21 26 53 order disruption factor 44 33 23 table 1. factors affecting intergroup conflicts/wars14 observing the substance of table 1 it is clear that 30 factors trigger the occurrence of intergroup conflicts/wars in makassar city. when the causes of the intergroup conflicts/ wars in makassar are studied and observed, it seems apparent that the occurring conflicts are complex and influenced by many aspects. description involvement (%) less involvement (%) non involvement (%) police 84 16 head of the village 66 26 8 public figures 72 26 2 religious leaders 30 32 38 table 2. data on the involvement of government agencies and public figures in intergroup conflicts/wars15 table 2 illustrates the percentage of the involvement of four important components in the society, who are the police, head of the village, community leaders and religious leaders. when observed, the percentage of involvement in resolving intergroup conflicts/ wars in makassar, it appears that the most dominant role is by the police (84%), followed by the public figures (72%), the head of the village (66%) and religious leaders (30%). description percentage (%) percentage (%) percentage (%) government seriousness 62 serious 25 not too serious 13 not serious legal counseling 22 ever 50 doubtful 28 never government guidance 14 ever 58 doubtful 24 never table 3. government response to intergroup conflicts/wars16 the data on table 3 explains the government’s response in addressing intergroup conflicts/wars in makassar city. the indicators of the level of seriousness are the seriousness of the government, legal counseling and government guidance. 14data source: results of processed primary data in 2018. 15data source: results of processed primary data in 2018. 16data source: results of processed primary data in 2018. volume 2, issue 2, december 2019 : 137 146 understanding to intergroup conflict: social harmonization and law awareness of society 144 | the data illustrates that 66% of the level of seriousness of the government as a response in overcoming intergroup conflicts/wars in makassar city. furthermore, 22% were not too serious and 13% were not serious in responding to intergroup conflicts/wars in makassar city. the data on legal counseling, however still raises a big concern, which means that it is still low. meanwhile, the government guidance is still lacking as well. description percentage (%) percentage (%) percentage (%) conflict consequences for the residents 24 staying 50 doubtful 26 moving conflict consequences for the residents 76 disturbed 14 doubtful 10 not disturbed conflict consequences for the residents 46 interrupted work 44 not too interrupted work 10 uninterrupted work conflict consequences for the residents 42 afraid 42 ordinary 16 not afraid conflict consequences for the residents 62 injured 20 not really know 18 not know conflict consequences for the residents 38 dead 34 doubtful 28 not know conflict consequences for the residents 58 prison sentence 14 doubtful 28 not know table 4. data on the emerging consequences of intergroup conflicts/wars17 observing table 4 it shows the impact or implications of the intergroup conflicts/ wars in makassar city. the impacts or implications of intergroup conflicts/wars in makassar city are that there are died, injured, frightened, and safety-disturbed residents. some even leave their homes or flee to their family’s house. conclusion conflicts/wars between groups still occur frequently in six districts in the city of makassar, which ratify the population, impede traffic, and cause victims from seriously injured residents to the dead. in generally, conflicts/wars between groups or residents mostly involve children or adolescents by using dangerous objects such as machetes, bows and arrows, and bamboo sticks or sticks. there are thirty factors or motives that cause conflict/ war between groups, namely juvenile delinquency, multi aspects, peaceful disturbances, offensive, revenge, social, economic, jealousy, dispute over work areas, unemployment, ethnicity, religion, culture, race wild, women, competition, misunderstanding, social change, land grabbing, women who seize men (infidelity of women), youth group clashes, politics/parties, deception, social class/strata, selfishness, arrogance, mockery, slander, conflict of interest, and government land disputes. 17data source: results of processed primary data in 2018. volume 2, issue 2, december 2019 : 137 146 understanding to intergroup conflict: social harmonization and law awareness of society | 145 suggestion 1. required to establish a conflict resolution forum (foleko) in each village and at the district level, whose members consist of government, police, military, religious leaders, community leaders, academics and youth leaders, whose role is to take preventive and repressive measures on all problems that have the potential to cause conflict/war between groups or residents. 2. it is necessary to provide legal guidance and counselling for all elements of society regarding criminal law, the form and type of violations of the law, and sanctions for each violation. 3. need to provide guidance and counselling for community members, especially teenagers, about legal awareness, social ethics and behaviour in family life and community life, and inculcation of religious values and national integrity. 4. the authorities, namely the police, need to be more intensive in conducting surveillance and need to carry out routine checks on the possession of dangerous sharp objects, especially in locations where conflicts/wars between groups or residents often occur. 5. it is necessary to have a module for the model of creation of social harmony and legal awareness as reading material that contains the formation of national character, patriotism and the re-internationalization of national ideology, values of peace, love (compassion) and harmony while reducing ethnicity, religious fanaticism, and regional for residents. acknowledgement this article can be completed in collaboration with the assistance of the lembaga penelitian dan pengembangan sumber daya universitas muslim indonesia (lp2s-umi), along with the indonesia ministry of research and technology indonesian national research and innovation agency (kemenristek-brin), so that the authors give much appreciation and gratitude. reference agustina, dwi. (2018). peleburan realitas nyata dan maya: hoax menjadi konsumsi masyarakat global. jurnal sosiologi agama, universitas islam negeri sunan kalijaga, 12(2), 245 – 260. doi: https://doi.org/10.14421/jsa.2018.%25x algemene bepalingen van wetgeving voor indonesie. ali, achmad. (2009). menguak teori hukum (legal theory) dan teori peradilan (judicialprudence): termasuk interpretasi undang-undang (legisprudence) (vol. 1). jakarta: kencana prenada media group. volume 2, issue 2, december 2019 : 137 146 understanding to intergroup conflict: social harmonization and law awareness of society 146 | arman, muhammad, akub, m. syukri, & heryani, wiwie. (2018). pertanggungjawaban pidana pelaku penyebaran berita hoaks melalui media online. amanna gappa, universitas hasanuddin, 26(1), 1 – 11. doi: http://dx.doi.org/10.20956/ ag.v26i1.6332 cahyono. (2011). fenomena konflik kekerasan. in himpunan makalah, artikel dan rubrik yang berhubungan dengan masalah hukum dan keadilan dalam varia peradilan ikahi mahkamah agung republik indonesia (pp. 493 – 509). jakarta: perpustakaan dan layanan informasi, biro hukum dan humas badan urusan administrasi mahkamah agung republik indonesia friedman, lawrence m. (1984). american law (wisnu basuki, trans.). new york: w. w. norton & company. indahingwati, asmara, launtu, ansir, tamsah, hasmin, firman, ahmad, putra, aditya halim perdana kusuma, & aswari, aan. (2019). how digital technology driven millennial consumer behaviour in indonesia. journal of distribution science, korea distribution science association, 17(8), 25 – 34. doi: http://dx.doi.org/10.15722/ jds.17.8.201908.25 nawi, syahruddin. (2014). penelitian hukum normatif versus penelitian hukum empiris. makassar: pt. umitoha ukhuwah grafika. rahardjo, satjipto. (2009). hukum dan perilaku: hidup baik adalah dasar hukum yang baik. jakarta: kompas. rosana, ellya. (2014). kepatuhan hukum sebagai wujud kesadaran hukum masyarakat. jurnal tapis: jurnal teropong aspirasi politik islam, universitas islam negeri raden intan lampung, 10(1), 61 – 84. doi: https://doi.org/10.24042/tps.v10i1.1600 soekanto, soerjono. (1977). kesadaran hukum dan kepatuhan hukum. jurnal hukum & pembangunan, universitas indonesia, 7(6), 462 – 470. doi: http://dx.doi. org/10.21143/jhp.vol7.no6.742 the 1945 constitution of the republic of indonesia. http://dx.doi.org/10.20956/ http://dx.doi.org/10.15722/ http://dx.doi/ edit.indd volume 2, issue 1, june 2019 : 43 53 | 43 regional autonomy in realizing good governance regional autonomy in realizing good governance roy marthen moonti faculty of law, universitas gorontalo email: roymoonti16@gmail.com abstract good governance in regional autonomy is a phenomenon whose principle is talking about government or good government in terms of realizing good governance through the context of public services. the purpose of regional autonomy is solely to provide satisfaction to the community and prosperity of society in a government area. the purpose of this study is to determine the development of current regional autonomy in realizing good governance as intended. the research method used in the preparation of this study is a normative juridical method that is, in answering the problems of the realization of good governance, the legal point of view is based on the applicable legal regulations, henceforth it is connected with the reality in the field relating to the issues to be discussed. in terms of the development of regional autonomy, of course there are several things that are the main indicators, namely equalization and improvement of development in the regions, improvement of services for communities, optimization of natural resources and human resources in the regions. keywords : regional autonomy; good governance. introduction the essence of regional autonomy is the freedom of local people to regulate and manage their own interests which are locality for the implementation of welfare. in autonomy, there is an intrinsic value, namely the value of democracy and its own initiative. making autonomy not only means carrying out democracy but encouraging the development of own initiatives, which means self-decision making and the self-interest of the local community. thus democracy, namely the government from, by and for the people can be achieved. the people not only determine their own destiny but also improve their own destiny. the implementation of regional governance involving broad community participation enables the creation of a democratic local government in order to lead to good governance in theory and practice the modern government is taught that to create the good governance needs to be a decentralized government. good governance refer to the governance process through the involvement of broad stakeholders in the economic, social and political fields as well as the utilization of natural, financial and human resources for the benefit of all parties, namely the government, the private sector and the people in a manner that is in accordance with the principles of justice, honesty, equality, efficiency, transparency, and accountability.1 1irwan, a. l. (2008). pelaksanaan otonomi daerah dalam mendukung pelaksanaan good governance di indonesia. government: jurnal ilmu pemerintahan, universitas hasanuddin, 1(1), pp. 89 – 90. volume 2, issue 1, june 2019 : 43 53 44 | regional autonomy in realizing good governance basically, the concept of good governance provide recommendations on a system of governance that emphasizes equality between state institutions, both at the central and regional levels, the private sector and civil society. good governance according to this view means an agreement regarding the setting state created jointly by governments, the public expressed interest, using the legal rights, obligations and bridge the differences between them. an explanation that good governance defined as the united nations development program (undp) is the implementation of politics, economics and administration and managing problems of the nation. the implementation of this authority is said to be good or smooth if it is carried out effectively and efficiently, responsive to the needs of the people, in a democratic, accountable and transparent atmosphere.2 the policy on regional autonomy gives very broad autonomy to the regions, especially cities and districts. regional autonomy is carried out in order to restore the dignity of the people in the region, provide opportunities for political education in order to improve the quality of democracy in the region, increase the efficiency of public services in the region, increase the acceleration of development in the region, and ultimately the creation of good governance. the giving and authority and responsibility as stipulated in law number 23 the year 2014 concerning regional government must be balanced with the distribution of adequate sources of income that are capable and support the implementation of the authority and responsibility given. in the current era of autonomy, efforts to continue to rely on assistance from the central government or higher levels of government cannot be maintained anymore. autonomy demands regional independence in various fields, including independence in funding and implementing development in the region. therefore, the regions are required to try to increase regional original income or pendapatan asli daerah (pad), in order to reduce dependence on the central government.3 as we all know with the provision of autonomy to the regions, the principles of regional government administration will always present two main considerations, namely considerations regarding efforts to ensure the continuity and success of national development and consideration to accommodate the aspirations of the people in the regions so that they can be more empowered regional development. people in the regions will be more established and not dependent on government assistance. the paradigm of community/society empowerment rests on a thought; development will proceed automatically if the community is given the right to manage the natural resources they have with their own abilities and use them for the development of their communities.4 2p., eddy suryanto h. (2008). kajian good governance terhadap otonomi daerah menuju keadilan dan demokratisasi hukum. wacana hukum, universitas slamet riyadi, 7(2), p. 94. 3habibi, m. m. (2015). analisis pelaksanaan desentralisasi dalam otonomi daerah kota/kabupaten. jurnal ilmiah pendidikan pancasila dan kewarganegaraan, universitas negeri malang, 28(2), pp. 117 – 118. 4tori, h. (2011). kebijakan otonomi daerah dan keadilan dalam mewujudkan good governance. jurnal tapis: jurnal teropong aspirasi politik islam, universitas islam negeri raden intan lampung, 7(1), p. 93. volume 2, issue 1, june 2019 : 43 53 | 45 regional autonomy in realizing good governance indonesia about this case choosing the decentralization of government based on our amended constitution, namely: the 1945 constitution article 1 paragraph (1), and article 18; accompanied by the implementation of regional autonomy. the choice was made for several reasons. politically, decentralization of government prevents the accumulation of power in a group of people by educating people to actively participate in using their rights and obligations in government. organizationally decentralization leads to efficient government; regional affairs are carried out by the regional government and national affairs/interests are handled by the central government; hence (political) decision making can be done quickly and precisely, so that the problems and obstacles that arise due to differences in geographical, demographic, socio-economic, cultural, legal and so on factors can be more easily estimated and overcome.5 culturally the government can devote development in the region cause it better understands the aspirations and needs of the community and is able to reach services to the people. the development of regional autonomy has logical consequences, namely respecting and realizing people’s aspirations, needs and ideas in solving problems that arise. juridically and sociologically, regional autonomy belongs to the people who live and live in the territories of the unitary state of the republic of indonesia, whose rights and obligations are guaranteed. the transfer of power from the new order to the reformation order underwent changes also in the case of a centralized government system that became a decentralized system in which the regions had extensive authority to regulate their own territory or region. with the granting of regional autonomy on the basis of law number 22 of 1999 which was later replaced by law number 32 the year 2004 and later amended again into law number 23 the year 2014 concerning regional government, thus the regions have a large duty and authority over own area. the implementation of regional autonomy in order to function optimally and in accordance with the expectations of our constitution of the 1945 constitution article 18, the regions must be prepared to manage natural resources, human resources and explore the potentials in the area so that they benefit the local community. in particular and for the advancement of the nation and the state. with the implementation of regional autonomy, it will have a positive and negative impact on the local community on the law, economy, social, culture, the behavior of the community and the government and so on.6 the problem in research is how the development of regional autonomy in realizing good governance. 5bunga, m., aswari, a., & djanggih, h. (2018). konsepsi penyelamatan dana desa dari perbuatan korupsi. halu oleo law review, universitas halu oleo, 2(2), p. 454. 6mastur, m. (2015). pelaksanaan otonomi daerah dan dampaknya terhadap hukum dan perubahan sosial. qistie: jurnal ilmu hukum, universitas wahid hasyim, 8(1), p. 2. volume 2, issue 1, june 2019 : 43 53 46 | regional autonomy in realizing good governance methods the research method used in the preparation of this research is the normative juridical method that is, in answering the problem a legal point of view is used based on applicable legal regulations, henceforth it is connected with the reality in the field relating to the issues to be discussed.7 analysis and discussion a. equalization and improvement of development in the region law number 32 the year 2004 as amended by law number 23 the year 2014 concerning regional government in article 1 number 2 states that regional government is the administration of government affairs by the regional government and dprd according to the principle of autonomy. and the task of assisting with the broadest principle of autonomy in the system and principles of the unitary state of the republic of indonesia as referred to in the 1945 constitution of the republic of indonesia. in connection with that, the transfer of power from the people to the state is divided into 2: (1) government as executive which is entrusted with the power to implement various community needs arrangements; (2) people’s representative institution as legislative, namely an authorized institution in terms of formulating and making rules to be implemented by the government and supervising government actions. the implementation of regional autonomy with the principle of decentralization has a positive impact in the context of equity and improvement of development in the region which is a means to enable local communities to be able to optimize their ability to prosper their lives. the idea of decentralization arose as a result of the demands of the community for the need to accelerate public services that must be carried out by the government to the community. successful implementation of the public service functions by local governments will affect the realization of the concept of the welfare state as mandated in the 1945 opening paragraph 4, namely: protecting the entire indonesian nation and the entire homeland of indonesia and to promote the general welfare, educating the nation, and participate in carrying out world order based on freedom, eternal peace and social justice.8 regional autonomy is an effort to the achievement of one of the country’s goals, namely to improve the welfare of the community through equal distribution of development and its results. regions have the authority to make regional policies to provide services, increase participation, initiatives and community empowerment aimed at improving people’s welfare. the purpose of granting regional autonomy is 7sunggono, b. (2002). metodologi penelitian hukum. jakarta: pt. raja grafindo persada, p. 43. 8sari, s. (2015). implementasi good governance dalam penyelenggaraan pemerintahan daerah di kota bukittinggi. jurnal idea hukum, universitas jenderal soedirman, 1(2), pp. 88 – 89. volume 2, issue 1, june 2019 : 43 53 | 47 regional autonomy in realizing good governance to enable the regions concerned to regulate and manage their own households to increase the usability and results for the administration of government. the policy on regional autonomy must be accompanied by the principle of decentralization. decentralization is an economy, namely the process of giving autonomy to the community in a certain area. the link between decentralization and regional autonomy as expressed by gerald s. maryanow is two sides of one currency. decentralization certainly includes the transfer of authority in managing the regional finances. so that one of the consequences of the implementation of regional autonomy is the existence of fiscal decentralization policies.9 the realization of regional autonomy in the context of equitable distribution of regional development is a joint effort that must be carried out evenly in all levels of society, where every citizen has the right to have the opportunity to achieve that goal. according to law number 32 of 2004 concerning regional government which regulates the problem of regional autonomy is an implementation regulation that carries out the constitutional mandate, specifically article 18 of the 1945 constitution. the regional government is part of the decentralization process aimed at achieving equitable regional development. with the existence of a clear relationship between the regional government and its instruments in various regions, the regions should be able or they can develop themselves more directed according to their respective identities and peculiarities. decentralization in regional autonomy is considered to be able to answer the demands of equity, effective political development. regional autonomy guarantees the handling of variations in the demands of the community quickly and precisely in order to create equitable development. that is, in developing countries centralized planning is not only complicated and difficult to implement, but also has not been in accordance with the need to increase equitable development. utilization of natural and human resources in the region should be accompanied by efforts to reduce activities that focus on national planning and increase awareness about the need to decentralize and provide autonomy to the regions to make decisions concerning the main interests of the region, in addition to giving greater responsibility to regions to plan and implement development programs. such changes are in fact not only concerned with technical and administrative matters but also political matters, namely with regard to delegation of authority from a group of decision makers in power at the centre to government power holders at the regional level. equitable development as a manifestation of the implementation of economic democracy is a development effort based on the spirit and spirit of togetherness 9nurana, a. c., & muta’ali, l. (2012). analisis dampak kebijakan otonomi daerah terhadap ketimpangan perkembangan wilayah di kawasan ciayumajakuning. jurnal bumi indonesia, universitas gadjah mada, 1(3), p. 174. volume 2, issue 1, june 2019 : 43 53 48 | regional autonomy in realizing good governance and kinship, in which cooperatives are developed as a healthy, resilient, strong and independent people’s economic movement so that they can act as a pillar of the national economy. equitable development provides equal opportunities for every citizen. communities throughout the country to contribute their work while simultaneously fulfilling their basic needs, and developing activities in all aspects of life. equity also accelerates the growth of disadvantaged groups, sectors, or regions. regional economies are developed in a harmonious and balanced manner between regions, in a national economic unit by optimizing the potential and regional participation optimally in order to realize the archipelago’s insight and strengthen national security. equitable and equitable development that is more able to guarantee sustainability because it is supported by the broadest active participation of the people and utilizes the maximum potential of the people. success with equitable development is the main capital in the nation’s efforts to improve the development and growth of the people’s economy, strengthen social solidarity, overcome poverty, and prevent the process of emerging new poverty that may arise. poverty is a situation of complete deprivation of the population that is manifested in and caused by limited capital, low knowledge and skills, low productivity, low income, weak exchange rates of poor people’s products, and limited opportunities to participate in development. the low income of the poor results in low education and health which affects their already low productivity and increases the burden of dependence on society. the population that is still below the poverty line includes those who have very low incomes, do not have a fixed income, or have no income at all.10 positive impact of regional autonomy on equitable development, namely the regional government will be easier to develop a culture that is owned by the area and it is easier to manage existing or regional resources, regions better know what is needed more by the region to improve equitable development, all components that exist in the area starting from the government or the community in general, can develop creativity and innovations in various fields in order to improve the equitable development of the region or in other words all components participate in the effort of equitable development. while the negative impact is in each policy taken, besides the positive side there is also a negative side. likewise in the implementation and implementation of regional autonomy, it has a negative impact on equitable distribution of national development. before discussing the negative impacts of regional autonomy, we must know the factors that influence the implementation of regional autonomy, community participation in the implementation of regional autonomy, and the attractiveness of regional autonomy for the community. 10bappenas. (2009). bab 9: pemerataan pembangunan dan penanggulangan kemiskinan. in repelita vi – buku ii. jakarta: badan perencanaan pembangunan nasional. volume 2, issue 1, june 2019 : 43 53 | 49 regional autonomy in realizing good governance b. improvement of services for the society with the increase of the authority granted, the government apparatus in the regions can better manage and organize public services according to the needs of the community, “regional autonomy is the authority to regulate government affairs that are local in nature based on people’s aspirations”. with the existence of regional autonomy, it is hoped that the provision of services to the community will be more effective. but until now the quality of public services still has services that are difficult to access, convoluted and unclear costs and there are still illegal fees. in addition, there are also injustices in public services where the people belonging to the poor category will get difficulties when getting services otherwise people who are classified as capable will find it easier to get services. for this reason, if this injustice occurs, this siding service will create the potential for national disintegration, the difference between the rich and the poor in the context of service, a slow economic increase. the incident happened because the old paradigm was marked by the state apparatus in the bureaucratic environment placing themselves to be served not to serve. even though the government should be aware that service is a service that prioritizes efficiency and success in building the nation. in order for quality public services, it is appropriate for the government to reform the public service paradigm. this reform of public services is a shift in the pattern of government-oriented public service providers as providers of services oriented to the needs of the community as users. submission of authority must also be used wisely by the local government by serving the needs of the community without discriminating status, race, religion, certain groups and interests that often make services not effective and disappoint the community, especially the lower middle class. in this regard, there are several efforts that can be made in improving the quality of public services, including: 1. revitalization, restructuring, and deregulation in the field of public services; 2. increased professionalism of public servant officials; 3. corporatization of public service units; 4. development and utilization electronic government for public service agencies; 5. increased public participation in public services; 6. giving awards and sanctions to the community service unit. as the first step in efforts to improve quality public service is through revitalization, restructuring, and deregulation in the field of public services. by changing the position and role in revitalization of bureaucracy in providing services to the public. from those volume 2, issue 1, june 2019 : 43 53 50 | regional autonomy in realizing good governance who like to govern and govern, to change to serving, from those who like to use the power approach, turn to be helpful towards a flexible collaborative direction, and from slogans ways to realistic ways of working. in connection with this, it is emphasized that the public bureaucracy should not prioritize authority, but what needs to be prioritized is the role of public servants. another important aspect of improving the quality of public services is conducting institutional restructuring by forming the right organization. appropriate organizational can be interpreted as an effort to simplify the bureaucratic governmental organization aiming to develop a more proportional, flat transparent, short hierarchy and decentralized authority. the posture of public service organizations will be more proportional, effective and efficient and supported by quality human resources. this can happen if public officials are committed to the four principles of service quality, namely reliability, surprise, recovery and fairness. reliability concerning the reliability and accuracy of services. this concerns the fulfilment of promises. the quality of service will be highly dependent and is usually measured by the terra principle which stands for service quality elements which include: tangibles, forty, reliability, responsiveness and assurance.11 in the future, what can be expected from regional autonomy is the provision of more satisfying public services, accommodating community participation, reducing the burden on the central government, growing regional independence and maturity and formulating programs that are more in line with regional needs. in this case, it can be seen that regional autonomy is a manifestation of political will to improve public services. in addition, regional autonomy was also recognized as a principle needed for government efficiency. therefore, the government needs to be closer to the community, so that the services provided are getting better. according to the government’s view of science, one way to bring government closer to society is to implement a decentralization policy. c. optimization of human resources in the region human resources are the potential contained in humans to realize their role as social beings who adaptive and transformative are able to manage themselves and all the potential contained in achieving prosperity in a balanced and sustainable order. human resources are one of the key factors in economic reform, namely how to create quality and skilled human resources with high competitiveness in global competition. the 21st century presents a national and international strategic environment that is different from the strategic challenges faced in the 20th century. at the end of 11maani, k. d. (2005). upaya peningkatan kualitas pelayanan publik di era otonomi daerah. jurnal demokrasi, universitas negeri padang, 4(2), pp. 28 – 29. volume 2, issue 1, june 2019 : 43 53 | 51 regional autonomy in realizing good governance the 20th century and in the early decades of the 21st century, indonesia faced severe challenges in all fields. the implementation of bureaucratic reform is an important strategy carried out in preparing themselves to face these challenges. the bureaucratic reforms that have long been rolled out actually have a basic goal in the form of changes in the mindset of the running personnel and systems that can control the organization, management, human resources of the apparatus, supervision and public services. however, this main objective has hitherto been constrained by the existence of institutional weaknesses in the tendency to prioritize structural approaches rather than functional approaches. the most important factor in organizational structuring is precisely the quality and capability of human resources in formulating the organization’s mission and strategy vision, workload analysis. bureaucratic reform is directed at creating clean, responsible, professional, efficient and effective bureaucracy, and creating excellent service to the public. conceptually in creating this, it starts from the redefinition of vision, mission and strategy, the study of restructuring and the merging and refinement of functions, the analysis of the workload analysis of organizational units. human resources apparatus as a driver and organizer of government tasks plays an important role in a system of government. therefore, the basic foundation of complete bureaucratic reform must begin with the reform of human resources apparatus management. this apparatus human resource management reform is an urgent need to be implemented in order to obtain professional, high-performing, and prosperous apparatus in supporting the achievement of good bureaucratic management.12 human resources in the context of development activities in the region are increasingly significant. this human resource factor has presented a new thought process in the study of development theories, which place human resources as the main axis of development both on a global, national and regional scale. development strategies based on the development of human resources development are considered very relevant and suitable with the conditions and character of development, especially in developing countries since the 80’s.13 bureaucratic reform is a means for a country to achieve good governance. in the implementation of bureaucratic reform, the most important thing is to improve the quality of the human resources of the government apparatus. human resources are apparatus is the most important thing in determining the successful implementation of bureaucratic reform. one strategy in improving the quality of human resource 12akny, a. b. (2014). mewujudkan good governance melalui reformasi birokrasi di bidang sdm aparatur untuk peningkatan kesejahteraan pegawai. jejaring administrasi publik: jurnal ilmiah, universitas airlangga, 6(1), pp. 416 – 417. 13junaidi, j., & zulgani, z. (2011). peranan sumberdaya ekonomi dalam pembangunan ekonomi daerah. jurnal pembangunan daerah, kementerian dalam negeri, 3, pp. 28 – 29. volume 2, issue 1, june 2019 : 43 53 52 | regional autonomy in realizing good governance personnel is in the area of employee welfare. improvement of the system and expected implementation will be able to remunerate the performance of employees so that they can maximize the implementation of services and carry out their functions. so that it can improve governance. conclusion to realize regional autonomy in the context of good governance and its development requires support from all parties both from the government itself and the community. the development of regional autonomy has had several impacts on the community, namely equalization and improvement of development in the regions, improvement of services for the community and optimization of human resources in the regional. to realize the development of regional autonomy is to increase creativity and innovation in government and it must, begin at the individual level then groups and organizations. this is so that all elements will be able to develop skills and can facilitate the development of regional autonomy. reference akny, a. b. (2014). mewujudkan good governance melalui reformasi birokrasi di bidang sdm aparatur untuk peningkatan kesejahteraan pegawai. jejaring administrasi publik: jurnal ilmiah, universitas airlangga, 6(1), 416 – 427. bappenas. (2009). bab 9: pemerataan pembangunan dan penanggulangan kemiskinan. in repelita vi – buku ii. jakarta: badan perencanaan pembangunan nasional. bunga, m., aswari, a., & djanggih, h. (2018). konsepsi penyelamatan dana desa dari perbuatan korupsi. halu oleo law review, universitas halu oleo, 2(2), 448 – 459. habibi, m. m. (2015). analisis pelaksanaan desentralisasi dalam otonomi daerah kota/ kabupaten. jurnal ilmiah pendidikan pancasila dan kewarganegaraan, universitas negeri malang, 28(2), 117 – 124. irwan, a. l. (2008). pelaksanaan otonomi daerah dalam mendukung pelaksanaan good governance di indonesia. government: jurnal ilmu pemerintahan, universitas hasanuddin, 1(1), 89 – 98. junaidi, j., & zulgani, z. (2011). peranan sumberdaya ekonomi dalam pembangunan ekonomi daerah. jurnal pembangunan daerah, kementerian dalam negeri, 3, 27 – 33. maani, k. d. (2005). upaya peningkatan kualitas pelayanan publik di era otonomi daerah. jurnal demokrasi, universitas negeri padang, 4(2), 25 – 34. volume 2, issue 1, june 2019 : 43 53 | 53 regional autonomy in realizing good governance mastur, m. (2015). pelaksanaan otonomi daerah dan dampaknya terhadap hukum dan perubahan sosial. qistie: jurnal ilmu hukum, universitas wahid hasyim, 8(1), 1 – 15. nurana, a. c., & muta’ali, l. (2012). analisis dampak kebijakan otonomi daerah terhadap ketimpangan perkembangan wilayah di kawasan ciayumajakuning. jurnal bumi indonesia, universitas gadjah mada, 1(3), 172 – 181. p., eddy suryanto h. (2008). kajian good governance terhadap otonomi daerah menuju keadilan dan demokratisasi hukum. wacana hukum, universitas slamet riyadi, 7(2), 93 – 106. sari, s. (2015). implementasi good governance dalam penyelenggaraan pemerintahan daerah di kota bukittinggi. jurnal idea hukum, universitas jenderal soedirman, 1(2), 88 – 100. sunggono, b. (2002). metodologi penelitian hukum. jakarta: pt. raja grafindo persada. tori, h. (2011). kebijakan otonomi daerah dan keadilan dalam mewujudkan good governance. jurnal tapis: jurnal teropong aspirasi politik islam, universitas islam negeri raden intan lampung, 7(1), 92 – 112. volume 1, issue 2, july 2018 : 82 94 | 82 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of independent regulatory agencies (iras) rizki ramadani, moch. andry w.w. mamonto faculty of law, universitas muslim indonesia email: rizkiramadani18@gmail.com abstract this research aims to know, analyze, and formulate the independency indicators of independent institutions based on the concept of independent regulatory agencies (iras) in advanced countries (united states and europe). also as an efforts to examine and see the extent to which independent institutions in indonesia meet these indicators. this study focuses on kpk institution that are well known as one of independent institutions in indonesia. although in practice it often rise the controversy and resistance from many parties. the method used in this legal research is normative legal research, conducted through literature study or secondary data. data consists of legal materials primary, secondary and tertiary, which are then processed descriptive-prescriptively. the research also uses several approaches such as legal, conceptual, and case approach. keywords: independent regulatory agencies (iras), independence, kpk introduction compared to the united states, it can be argued that the term independent state institution (lni) in the context of indonesia doesn’t have any meaningful justification. this is because until the present day there has not been a single article in the legislation which mention the term " independent state " definitively. in the early time of the uud nri 1945 (1945 constitution) formulation, the lni has not yet found a place of discussion in the constitutional format.1 even the term state institution itself has not been discussed. while the 1945 temporary constitution (uuds), used the term "state equipment" to define state institutions, but still has not specifically embedded the word "independent". the legitimacy for the establishment of independent state institution (lni) just gained quite good sentiments only after the amendment of the 1945 constitution.2 the corruption eradication commission (kpk), for example, in article 3 of law no. 30 year of 2002 regarding the corruption eradication commission, states that the corruption 1zainal arifin mochtar, (2016), lembaga negara independen: dinamika perkembangan dan urgensi penataannya kembali pasca-amandemen konstitusi, jakarta, rajawali pers, page 5. 2ibid.,page 4-6. https://creativecommons.org/licenses/by-sa/4.0/ mailto:rizkiramadani18@gmail.com volume 1, issue 2, july 2018 : 82 94 | 83 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … eradication commission is a state institution which in carrying out its duties and authorities is independent and free from any influence of power. there is no formulation or further explanation regarding the independent aspect which has been mentioned. in fact, when the kpk translated the word 'independent' in the form of concrete actions against various corruption cases, controversy arose. even by some parties it is often regarded as a form of arrogance by the superbody institution. related to the phenomenon above, it becomes important and strategic to formulate measurable standards of independency for independent institutions. it is also interesting to examine the independency of independent institutions in indonesia by by referring to the institutional concept and design in europe and united states. this review will focus on the institutional and independency aspects of kpk as one of the independent state institutions in indonesia. method as a legal research, this research is a study of the concept of independency and institutional independence. thus this research requires secondary data from literature studies. based on this, this research is included in the type of normative research. from its nature, this research is descriptive-prscriptive. information from various aspects of the issues discussed in this research, this research uses several approaches, such as statutory approach, second, case approach, third, conceptual approach. analysis and discussion independent regulatory agencies (iras) indicators as indicators of independent state institutions (lni) in indonesia in contrast to the existence of independent institutions that are still vague in indonesia, the opposite can be found in the united states and europe. where independent state institutions or commonly called independent regulatory agencies (iras) are legally guaranteed by the legislation and even explicitly and limitatively mentioned. this exist for example in the provisions of the paperwork reduction act44 (u.s.c. § 3502), which in point (5) states; ”the term “independent regulatory agency” means the board of governors of the federal reserve system, the commodity futures trading commission, the consumer product safety commission, the federal communications commission, the federal deposit insurance corporation, the federal energy regulatory commission, the https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 82 94 | 84 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … federal housing finance agency, the federal maritime commission, the federal trade commission, the interstate commerce commission, the mine enforcement safety and health review commission, the national labor relations board, the nuclear regulatory commission, the occupational safety and health review commission, the postal regulatory commission, the securities and exchange commission, the bureau of consumer financial protection, the office of financial research, office of the comptroller of the currency, and any other similar agency designated by statute as a federal independent regulatory agency or commission”.3 under these provisions, it can be known immediately that there are at least nineteen state institutions which explicitly designated as independent state institutions or iras. thus exist a role model or blue print regarding what independent regulatory agencies refer to in the context of the united states. in contrary, other institutions which are not included in the provisions or their institutional characteristics are not entirely the same, not included as the iras. the institutional design of iras or independent institution in the united states as proposed by funk and seamon, elaborate the characteristics of iras into the following elements; “these characteristics are (1) they are headed by multi-member groups, rather than a single agency head; (2) no more than a simple majority of these members may come from one political party; (3) the member of the group has fixed, staggered tems, so that their terms do not expire at the same time; and (4) they can only be removed from their position for “cause”, unlike most executive officials, who serve at the pleasure of the president.”4 while zainal arifin mochtar as he quoted fro, milakovich and gordon describes some of the characteristics of american and european independence institution as follows; 1) the institution has collegial leadership, so decisions are taken collectively. 2) the members or the commissioners of the institution do not serve what the president desires. 3more see “the paperwork of reduction act of 1980”. as quoted from https://www.law.cornell.edu/uscode/text/44/3502 this regulation is essentially designed to lighten the administrative burden of government agencies in the private sector by delegating such authority to institutions outside the executive. all of these rules contain procedural requirements for such institutions in exercising their authority. see https://en.wikipedia.org/wiki/paperwork_reduction_act 4william f. funk dan robert h. seamon, 2001, admisnistrative law: examples and explanations, apen law & bussiness, printed in the united states of america, new york, page 7. https://creativecommons.org/licenses/by-sa/4.0/ https://www.law.cornell.edu/uscode/text/44/3502 volume 1, issue 2, july 2018 : 82 94 | 85 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … 3) the commissioner's term of office is usually definitive and long enough, for example 14 years for the period of the federal reserve board in america. 4) the period of his position is "staggered". that means, every year each commissioner changes gradually and therefore, a president can not fully control the leadership of the relevant institutions. 5) the number of members or commissioners is odd and decisions are made by a majority of the votes 6) membership of this institution usually maintains a representative partisan balance5. thatcher, who analyzed the phenomenon of iras in britain, france, germany and italy, drew the conclusion that there are three most important aspects of iras, namely the independence of elected officials, relationships with other administrative institutions (regulatees), and decision making process. he then explained that the independence of iras in practice can be seen from five indicators which are; 6 1) party politicisation of appoinments, which means the greater politicization towards iras, the smaller its independence. it also affects greater oversight by elected officials (executive / parliament). 2) departures (dismissal and resignation), ie the dismissal of iras members before the end of the term of office, the more frequent and rapid the dismissal, the lower the independence. 3) the tenure of ira members, the longer their tenure, the greater their independence to the elected officials. 4) the financial and staffing resources of the ira, namely independence in terms of finance and resource management. 5) the use of power to overturn the decisions of iras by elected politicians, ie the extent to which government officials are able to change the iras' decisions and policies. in addition to institutional characteristics, independence is also manifested in the characteristics of the authority possessed by the lni. in the united states, there are many federal government bodies granted constitutional authority by legislatures (through law) to exercise power independently. these federal agencies practically carry out government 5zainal arifin mochtar husein, dkk., “efektifitas sistem penyeleksian pejabat komisi negara,” final report penelitian, kemitraan partnership, 2008, page 11. 6mark thatcher, “independent regulatory agencies ini europe”, downloaded from http://www.hec.edu/heccontent/download/3643/137514/version/2/file/thatcher.pdf pada 18 mei 2016. https://creativecommons.org/licenses/by-sa/4.0/ http://www.hec.edu/heccontent/download/3643/137514/version/2/file/thatcher.pdf volume 1, issue 2, july 2018 : 82 94 | 86 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … functions by combining the legislative, executive and judicial powers. regarding this quasicharacteristic authority funk and seamon point out; “specifically, an agency may have (1) the “quasi-legislative” power to adopt regulations that control people’s everyday conduct; (2) the executive power too enforce those regulatios and ther law that he agency is responsible for administering; and (3) the quasi-judicial power to apply those regulations and laws in individual cases.…some agencies not only combine powers resembling those of the three separate branches but also are somewhat insulated from presidential control, these are called “independent agencies”..”7 in american and european countries, it's widely known that the state institutions which categorized as iras have regulatory authority or rule making function.8 this "self regulatory" characteristic is one of the elements of iras in beside the independency. based on several concepts and models of independence initiated by the experts above, the authors intend to integrate these views in order to establish an ideal standard of independence according to the concept of independent regulatory agencies (iras). this independence standard will be used as an indicator in analyzing and examining the independence aspect of kpk institution which becomes the object of study in this research. those indicators of independence are formal independence (formal independence) aspects which includes; 1) personnel independence, which consist of several aspects namely; a. appointment and dismissal protection, ie mechanism for the appointment and dismissal of the institution's head under certain causation stipulated in law, thus not depending on the will of the president alone. b. multi-member groups, namely the leadership model that plural or collective leadership is composed of several people with decision making that is collegial c. nonpartisan members; leadership that is not majority and not dominated from one party or certain group d. definitive terms of office; namely the defined and definitive term of office of the member. 2) functional independence, consisting of; a. regulatory authorities / quasi legislative power; namely having the authority of rulemaking or stipulating regulations in certain fields mandated and established by law. 7 william f. funk dan robert h. seamon, op.cit.,hlm. 23-24. 8fabrizio gillardi, 2008, delegation in the regulatory state, independent regulatory agencies in western europe, edward elgar publishing limited, united kingdom, page. 22. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 82 94 | 87 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … b. sanctioning authorities / quasi judicial power; ie whether an lni has the authority to independently conduct investigations, prosecutions, imposition of sanctions or other authorities relating to judicial functions. 3) institutional independence, which consisting of; a. financial and organizational management; namely whether the institution have independence in regulating and determining budget and managing internal affairs. b. external relation; namely the mechanism of inter-institutional relations. the extent to which the lni independent from influence and dependence with other institutions. in addition to the formal independence aspects above, the analysis will also be conducted towards the aspects of informal independence (de facto independence). this is done by applying case study approach to several aspects of the authority implementation and real condition of the institution. some concepts from mark thatcher are used as indicator of analysis which are; 1) politicisation of appoinments, ie to see if there is politicization in terms of appointment of the leadership of the institution. 2) departures (dismissal and resignation), ie how often the chairman of the institution stepped down from office before his term ended. 3) the use of power to overturn the decisions of iras, ie the extent to which other institutions are able to change and influence the decisions or policies of the lni. the formal independence of corruption eradication commision republic of indonesia (kpk ri) speaking about kpk as independent state institution (lni), the aspect of formal independence are institutionalized and reflected in it’s legal provision which is law no. 30 of year 2002 concerning the commission for the criminal act of corruption. based on the formal independence indicator in the concept of independent regulatory agencies or iras which are consisting of personnel independence, functional, and institutional aspects and their respective elements, the independence of kpk can be seen in the following table; https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 82 94 | 88 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … tabel 1. formal independence of kpk independency aspect elements of independency exist/ not exist legal provision personel independence appointment and dismissal protection exist -article 32 (1) the chairman of the corruption eradication commission shall cease or be dismissed for: a. die; b. termination of his office term;c. become a defendant for committing a criminal offense; d. remain unattended or can not perform its duties continuously for more than 3 (three) months ; e. resign; or f. subject to sanctions under this act. article 22 (2) the selection committee shall be established by the corruption eradication commission. article 30 (1) the chairman of the corruption eradication commission shall be elected by the congress of the republic of indonesia among the candidate proposed by the president of the republic of indonesia. multi member groups exist article 21 (1) the corruption eradication commission shall consist of: the chairman of the corruption eradication commission consisting of 5 (five) internal members. article 21 (5) the boards of chairman of the corruption https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 82 94 | 89 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … eradication commission shall work collectively. nonpartisan member exist article 29 to be eligible to be appointed as the chairman of the corruption eradication commission, one shall meet the following requirements: ... h. not being a member of a political party; i. releasing structural positions and / or other positions during membership of the corruption eradication commission; definitive terms of office exist article 34 the chairman of the corruption eradication commission shall hold the office for 4 (four) years and may be re-elected for one term only. functional independence regulatory authorities/quasi legislative power not exist sanctioning authorities/quasi judicial power exist article 6 letter c: conduct investigation and prosecution of corruption; institutional independence financial and organizational management exist article 64 all fees required for the performance of the commission's duties corruption eradication is charged to the revenue budget and state expenditures. article 25 (1) the corruption eradication commission: 1. establishing the organization's https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 82 94 | 90 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … policy and organization on the implementation of the duties and authorities of the kpkcorruption; 2. appoint and dismiss head of division, head of secretariat, head of subdivision, and officer in chargeto the corruption eradication commission; external relation exist article 6 letter b: supervision on the authorized institution in corruption eradication; article 15 point 2: the kpk shall prepare an annual report and submit it to the president of the republic of indonesia, the house of representatives of the republic of indonesia, and the state audit board; based on table 1 it can be seen that the institutional design of the corruption eradication commission as contained in the provisions of law 30 of year 2002 almost fulfill all of formal independence indicators in the concept of iras. in terms of personnel independence, the kpk has met the mandatory requirement to be categorized as iras, referring to the mechanism of removal protection, ie the regulation concerning dismissal of 'certain causes' which does not depend on the 'political taste' of the president. similarly, the collegial leadership model and the collective decision making process. nevertheless, although in the selection of the commissioners involving a committee chosen by the kpk itself, the final decision to vote is still in the hands of the dpr (congress). makes it a big potential for politicization towards the candidates for by the politician. in fact, congress will generally vote for the same candidate based on political preference, or at least as appropriate to their interests. the authority of the legislative assembly to elect its own https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 82 94 | 91 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … public officials is still rising a debate in the context of constitutionality, since it is basically the authority of the president as the hig hest executive officer or head of government to do so. in the aspect of functional independence, unfortunately the kpk has no authority in regulatory or rulemaking, which is one of the important aspects of iras. its tasks, authorities and functions have been implemented based on existing regulations spread in corruption act, kpk act and general provisions on criminal law procedure. however, basically quasi-judicial authority such as investigation, prosecution and supervision over other institutions in the case of corruption crime is sufficient to classify the kpk as an independent institution. the formal independence of the kpk also exists in terms of organizational and staffing that can independently managed by the it's own. thing is also supported by the budget which allocated directly from the apbn (state budget of income and expenditure). from a relational perspective to other institutions, the kpk's responsibility to provide an annual report to the president, including the house of representatives (legislative branch) and also audited by bpk, doesn't indicating the dependence of kpk to other organs. in fact, it is necessary to ensure the institution's accountability to the public. it's also used as a control mechanism of the people's and the government in assessing kpk's performance in general. de facto independence of kpk it must be acknowledged that behind the institutional design of the corruption eradication commission (kpk) which almost entirely in accordance with the concept of independent state institutions in the modern era (iras), its existence in indonesia is the most often reaping conflict and being exposed to various problems. since the antasari azhar leadership, the term "lizard vs. crocodile" emerged as an analogy of the kpk conflict against the polri. the course of this conflict then not only happened once, but up to three times (volume i, ii, iii in the language of the media) in every change of kpk management. the conflicts which occured varies from the issue of criminalization, to the investigation authority dispute between two institutions.9 9for example after the conflict of "lizard vs. crocodile" (volume i) in july 2012, the dispute between kpk vs. police was reopened (volume ii), after kpk appointed former chief of police traffic corps inspector djoko susilo as suspect of corruption case in sim simulator project. in fact, before the police headquarters has stated, after investigating the internal investigation, did not find the element of corruption in the project, involving djoko susilo there was a dispute over the authority between the kpk and police in investigating the corruption case. while in the third conflict, beginning with the determination of the suspect by the commission against komjen budi gunawan who is a candidate for chief of police. in the aftermath of this long feud, two kpk commissioners, abraham samad and bambang widjoyanto, were arrested by the police criminal investigation unit (police criminal investigation unit) each with a family card case and alleged witness briefing by bw when handling election dispute cases in the constitutional court. automatically both are disabled as kpk leaders. while on the polri, komjen budi gunawan canceled off as the chief of police was replaced by baddrodin haitian commander. see tempo magazine, "sim salabim sim simulator", 23-29 april 2012 edition. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 82 94 | 92 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … in practice, it can be concluded that in terms of the de facto independence, kpk has great constraints in the aspect of the use of power to overturn the decisions of iras, as proved by the frequent intervention of polri in the exercise of the kpk's authority. whereas specifically in corruption, the act regarding kpk has determined that it has supervision authority over other institutions. this agency's intervention has not been included from the alleged effort of systematic weakening against kpk by the legislative through revision of kpk and kuhap regulation. for example with the proposal to revoke kpk's authority in recruiting independent investigators, and forming an executive council that acting as extension of the president's hand to control and oversee the performance of the kpk.10 the idea of revision on the corruption eradication commission by legislative which is non-transparent and not disclose will affect the existence of kpk as law enforcer.11 recently, the public was also preoccupied with the question of the right of inquiry submitted by the legislative (dpr) against the kpk, which then led to the final decision by the constitutional court allowing such action. in the departures (dismissal and resignation) indicators, the kpk was reaping very bad results. throughout the kpk's record, there were several commissioners who were disbanded before their term ends. among them is the former kpk commissioner antasari azhar, who was found guilty of a crime of premeditated murder.in kpk volume ii, commissioners chandra hamzah and bibit waluyo also had dimissed in charge of the bribery case. in addition, there is also abraham samad, former chairman of the corruption eradication commission in the third regime who was hit by a family card forgery case, and bambang widjoyanto who holds the status of a suspect in bareskrim polri for the case of witnesses manipulation. both are dismissed by the president, even though the provisions state that commissioner can only be dismissed if he/she has bear the status of a defendant. in the aspect of politicisation of appoinments, the discourse of the politicization of kpk began to emerge since the election of the kpk in 201612, where the names are predicted to be strong and have a good track record was not removed by the house. there are allegations that the house of representatives tends to vote for one candidate with the same agenda and interests of the house.13 particularly in the election of basaria panjaitan with the background of polri, it is considered that the public is not in line with the effort to independent kpk from the influence of polri. 10lihat http://www.cnnindonesia.com/politik/20151007125208-32-83389/icjr-dewan-eksekutif-intervensi-pemerintahdi-kpk/ lihat juga https://nasional.tempo.co/read/news/2012/03/14/063390078/ada-upaya-dpr-terus-intervensi-kpk 11indriyanto seno adji, “inisiatif pelemahan atau penguatan kpk?” article in harian suara pembaruan, friday, 12 february 2016. 12http://nasional.kompas.com/read/2015/12/18/07585511/.komposisi.pimpinan.terpilih.kpk.mengkhawatirkan. 13see http://news.liputan6.com/read/2391399/abdullah-hehamahua-dpr-bakal-pilih-pimpinan-kpk-sesuai-selera https://creativecommons.org/licenses/by-sa/4.0/ http://www.cnnindonesia.com/politik/20151007125208-32-83389/icjr-dewan-eksekutif-intervensi-pemerintah-di-kpk/ http://www.cnnindonesia.com/politik/20151007125208-32-83389/icjr-dewan-eksekutif-intervensi-pemerintah-di-kpk/ https://nasional.tempo.co/read/news/2012/03/14/063390078/ada-upaya-dpr-terus-intervensi-kpk volume 1, issue 2, july 2018 : 82 94 | 93 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … tabel 2. de facto independence of kpk independency elements description politicisation of appoinments politicisation by legislative in the selection process of commissioner candidates. departures (dismissal and resignation), some of kpk commissioners are dismissed before the office term due to criminal cases. the use of power to overturn the decisions of iras intervention to kpk's authority by national police department, ressitance and some efforts to weakening the institution by the legislative. kpk commissioner selection has always been a problem. one of them was when the antasari azhar corruption eradication commission (kpk) candidate was reported to the supervisory section of the ago on the alleged violation of the code of conduct of the prosecutors by a number of students who joined in the anti-manipulation student movement (geram bumn). in other cases, a pattern that threatens the independence of kpk's filling position has also been conducted by the president against the kpk, which at that time was short of commissioners. as known, the appointment of kpk commissioners as an independent institution requires them to be elected through selection mechanisms, but the president actually issues a perppu which in principle enlarges the president's authority to appoint kpk commissioners. if the recruitment mechanism is not corrected immediately, the politicization of kpk commissioner elections will clearly affect the level of independence as an lni. conclusion based on the description above, the independence of an independent institution or lni can be divided by two indicators. first, the formal independency which includes aspects of institutional design. this formal indicator can also be used as a reference or blueprint for the future establishment of independent institutions in indonesia. secondly, non-formal or de facto independence, which used as indicators in practice, such as politicization election, and external resistance. in the context of the kpk, there has been no correspondence between the formal independence aspect and the implementation according to de facto independence.. the kpk's institutional design, which is formally very independent, yet has not been able to make the kpk truly independent in its implementation level. by that time, the government and the public must be more consistent and have greater commitment regarding to the position and guarantee the independence of kpk in the indonesian state administration system. https://creativecommons.org/licenses/by-sa/4.0/ volume 1, issue 2, july 2018 : 82 94 | 94 the independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of … reference djanggih, h., thalib, h., baharuddin, h., qamar, n., & ahmar, a. s. (2018). the effectiveness of law enforcement on child protection for cybercrime victims in indonesia. in journal of physics: conference series (vol. 1028, no. 1, p. 012192). iop publishing. fabrizio gillardi, (2008), delegation in the regulatory state, independent regulatory agencies in western europe, edward elgar publishing limited, united kingdom. qamar, n., busthami, d., aswari, a., & reza, f. s. (2017). logika hukum, meretas pikir dan nalar, social politic genius (sign), makassar. ramadani, r., mochtar, z. a., & sh, l. (2016). independensi lembaga negara independen (studi dalam konsep independent regulatory agencies) (doctoral dissertation, universitas gadjah mada). william f. funk, dan richard h. seamon, (2001), admisnistrative law: examples and explanations, apen law & bussiness, printed in the united states of america, new york. zainal arifin mochtar, (2016), lembaga negara independen: dinamika perkembangan dan urgensi penataannya kembali pasca-amandemen konstitusi, jakarta, rajawali pers. zainal arifin mochtar husein, at.al. (2008). “efektifitas sistem penyeleksian pejabat komisi negara,” final report penelitian, kemitraan partnership. majalah tempo, “sim salabim simulator sim”, edisi 23-29 april 2012 undang-undang dasar negara republik indonesia tahun 1945 undang-undang nomor 30 tahun 2002 tentang komisi pemberantasan tindak pidana korupsi https://creativecommons.org/licenses/by-sa/4.0/ edit.indd volume 2, issue 1, june 2019 : 31 42 | 31 regulation of food quality development and supervision in denpasar city regulation of food quality development and supervision in denpasar city putri febyana br surbakti faculty of law, universitas udayana email: putri_febyana2202@yahoo.com abstract guidance and supervision of food quality needs to be carried out in each region because of it given the high victims of food poisoning in indonesia. the absence of regulations governing food hygiene and safety and the lack of public awareness are the reasons for the high incidence of food poisoning. therefore it requires a firm attitude from the central and regional governments and socialization for the community regarding the importance of food hygiene and safety. this research aims to analyze the regulation of supervision and supervision of food quality in denpasar city and the form of supervision and coordination between related agencies in sanitation hygiene and food safety supervision in denpasar city. this research is normative legal research. this research can be summarized as follows: first, there is no explicit arrangement regarding the development and supervision of food quality in denpasar city, but implicitly contained in the regional regulations of denpasar city number 7 of 2008 concerning the organization and work procedures of denpasar city and the regulation of mayor of denpasar number 33 of 2008 concerning the description of job duties in the denpasar municipal service organization; and twice, and twice, the government of denpasar city through the health office in collaboration with bbpom routinely conducts checks and supervisions of sanitation and security of processed food which is marketed in various regions in denpasar city. keywords : guidance and supervision; food quality; regulation; hygiene sanitation; food security. introduction the definition of food is contained in law number 18 of 2012 concerning food. food includes food and beverages to be a basic human need. therefore, the need for food is increasing along with the growth of the population of a country. as a basic requirement, trade in foodstuffs and processed food products is found in every corner of indonesia. increasing food needs creates an increase in food sales. in addition to food sales, there are also sales of processed foods and beverages, even fast food processed, which is currently in demand by most indonesians because it is considered practical and efficient. however, problems arise because processed food traders often do not pay attention to environmental and safety hygiene in food and beverage processing. this happened because regulations related to hygiene and safety of food quality were not effective, lack of supervision of traders, lack of public awareness of food quality, and lack of socialization of food hygiene and safety. as a result, there have been many cases of food poisoning. volume 2, issue 1, june 2019 : 31 42 32 | regulation of food quality development and supervision in denpasar city based on data from the national poisoning information center (sikernas), from january to march 2017, there were 23 incidents of food poisoning which were dominated by food poisoning as many as 19 incidents in which there were 17 incidents of food poisoning and 2 incidents of beverage poisoning. then from april to june 2017, there were 31 incidents of food poisoning which were again dominated by food poisoning as many as 27 incidents in which there were 24 incidents of food poisoning described as follows: 1 incident due to consumption of processed food in packaging there were 4 victims; 4 incidents due to consumption of processed street food snacks (pkl) were 102 victims; 10 incidents due to processed food catering services have 666 victims; 9 incidents due to processed household food have 493 victims. and 3 incidents due to processed drinks there were 96 victims. continued in july to september 2017 there were 39 incidents which were dominated by 30 food incidents in which there were 27 incidents of food poisoning described as follows: 9 incidents of food poisoning in food services there were 422 victims; 8 incidents of household food poisoning have 249 victims; 6 incidents of pkl processed food poisoning have 88 victims; 2 incidents of food poisoning in the pack have 22 victims; 1 incident of food poisoning which is unknown, there are 7 victims. and 3 incidents of drink poisoning have 16 victims1. food quality must be considered by every food and beverage business actor.2 food quality is defined as the value determined on the basis of the safety criteria and nutritional content of food as referred to in article 1 number 36 of act number 18 of 2012 concerning food. food quality consists of several aspects, namely nutritional aspects, business aspects and health aspects3. with the existence of food quality, it is hoped that producers or food entrepreneurs will pay more attention to the cleanliness of sanitation and the safety of processed food and beverages produced and sold. the community as consumers must also be aware of the importance of consuming processed food that is clean and safe so that it does not interfere with public health. the government has the most important role in creating regulations, fostering and supervising food hygiene and security to avoid outbreaks of malnutrition and food poisoning as recently happened, namely malnutrition in the asmat regency of papua to death. in denpasar city there were several cases of food poisoning, namely in 2012, there were cases of food poisoning so that twenty-one people had to be hospitalized4. then in 2014, there were food poisoning cases so that twenty-two people had to be hospitalized 1bpom. (2018, 30 januari). berita keracunan bulan juli – september 2017. sentra informasi keracunan nasional. retrieved from http://ik.pom.go.id/v2016/berita-keracunan/berita-keracunan-bulab-juli-september-2017 2hasan, k. n. s. (2014). kepastian hukum sertifikasi dan labelisasi halal produk pangan. dinamika hukum, universitas jenderal soedirman, 14(2), p. 232. 3mamuaja, c. f. (2016). pengawasan mutu dan keamanan pangan. manado: unsrat press, p. 7. 4hasanudin, m. (2012). puluhan warga denpasar keracunan nasi bungkus. kompas.com. retrieved from https://nasional.kompas.com/read/2012/07/16/04384953/puluhan.warga.denpasar.keracunan.nasi.bungkus volume 2, issue 1, june 2019 : 31 42 | 33 regulation of food quality development and supervision in denpasar city intensively due to the use of food preservatives5. in the same year, a seven-year-old child died from food poisoning purchased at a traveling snack dealer6. the case of food poisoning that causes casualties results in public anxiety about the amount of processed foods and drinks that are not safe. therefore, more attention is needed from the denpasar city government to overcome the anxiety that arises in the community so as not to cause harm to businesses and the public as consumers. the government is required to conduct supervision which can prevent the dangers of processed foods and beverages that are unsafe to the community. based on this background, the authors found two problems that will be discussed further in this study, namely, first is there a regulation related to the development and supervision of food quality in denpasar city? and how is the supervision of sanitation hygiene and food security in the city of denpasar? the purpose of writing this scientific research is to analyze the arrangement of supervision and supervision of food quality in the city of denpasar and the form of supervision and coordination between related agencies in the supervision of hygiene sanitation and food security in the city of denpasar. method this research is a type of normative legal research which is based on primary data sources in the form of laws, minister of health decrees, denpasar city regional regulations, mayor regulations, and secondary data sources in the form of journals and news from the official web. analysis and discussion a. regulation of food quality development and supervision in denpasar city regulation becomes the authority regional government to regulate all matters that are the authority of the region. regulations issued by local governments are often orders from higher regulations. as in the decree of the minister of health no. 942/menkes/sk/vii/2003 concerning guidelines for sanitation food snack food requirements, article 19 requires district or city governments to further regulate food quality supervision and supervision. guidance and supervision of food quality in the district/city are considered important to avoid extraordinary disasters such as malnutrition and food poisoning. in this case, the denpasar city government has not explicitly regulated the development and supervision of food quality so that a legal 5sss. (2014). 22 warga denpasar keracunan ikan. detiknews. retrieved from https://news.detik.com/ berita/191147/22-warga-denpasar-keracunan-ikan 6surya, i. m. (2014). bocah tujuh tahun tewas keracunan. antara bali. retrieved from https://bali.antaranews. com/berita/60031/bocah-tujuh-tahun-tewas-keracunan volume 2, issue 1, june 2019 : 31 42 34 | regulation of food quality development and supervision in denpasar city vacuum occurs. however, in carrying out their duties and authority, the denpasar city government through the relevant agencies conducts food quality supervision based on job duties as implicitly regulated in the regional regulation of denpasar city number 7 of 2008 concerning the organization and work procedures of the regional office of denpasar city jo. denpasar mayor’s regulation number 33 of 2008 concerning job position descriptions at the regional office of the city of denpasar. in article 6 of the regional regulation of denpasar city number 7 of 2008 concerning organizations and work procedures for regional offices of the city of denpasar that regulate the organizational structure. the offices whose job duties are related to the development and supervision of food quality, namely: 1. the organizational structure of the health office which is divided into several fields and sections, namely: a) the public health development sector which covers the health promotion section and community participation and nutrition section b) the environmental sanitation development division includes the restructuring section of public places (ttu), the food and beverage sanitation section and the neighborhood health and water quality restructuring section 2. the organizational structure of the livestock, fisheries and marine services office which consists of fields and sections, namely: health sector veterinary society which includes supervision and guidance section of slaughterhouses, food and non-food quality supervision section, and traffic control section for food and non-food animal products. 3. organizational structure of the office of industry and trade which consists of fields and sections, namely: a) field of bina sarana which covers the guidance section of industrial facilities and supervision section; b) field of cooperation and protection which includes the consumer protection section. 4. the duties of the service organization position as described above are further regulated in the regulation of the mayor of denpasar number 33 of 2008 concerning job position descriptions at the regional service organizations of the city of denpasar, which are described as follows: health service a. field of community health development (article 30) section of health promotion and community participation (psm) on duty (1) preparing materials for the development of potential community participation (2) in the health sector (article 32 paragraph (1) letter q). volume 2, issue 1, june 2019 : 31 42 | 35 regulation of food quality development and supervision in denpasar city the nutrition section is in charge of conducting food and nutrition awareness system activities (1) (spkg) in order to anticipate the emergence of food and nutrition problems (article (2) 32 paragraph (3) letter h). b. field of environmental health development (article 36) (1) public health restructuring section (ttu) has the duty to carry out technical guidance and guidance, supervision and inspection of industrial places and public (article 38 paragraph (1) letter g). (2) food and beverage restructuring section has the duty to provide counseling, guidance, and supervision of restaurants and restaurants, catering services, home industry food (p-irt), school canteens, snack food centers and other food processing places (article 38 paragraph (2) letter g). (3) the settlement environment and water quality section is tasked with planning and implementing health management guidance on the impact of pollution (article 38 paragraph (3) letter k); carry out regulation, standardization and supervision of water quality (article 38 paragraph (3) letter q); carry out counseling and improvement of water quality (article 38 paragraph (3) letter r); carry out the provision and development of water quality facilities and infrastructure (article 38 paragraph (3) letter t). water is a sanitation facility to clean food so that clean and healthy water can improve food quality. 5. department of animal husbandry, fisheries and marine health of veterinary communities (article 180) 1. section of supervision and development of slaughterhouses is tasked with establishing technical standards, guidance, monitoring and supervision of slaughterhouses (article 182 paragraph (1) letter f); carry out guidance and supervision of animal shelters (article 182 paragraph (1) letter g); carry out guidance and supervision of meat processing sites (article 182 paragraph (1) letter h). 2. the food quality and non-food supervision section is tasked with carrying out monitoring and quality control of food and non-food animal products and their distribution (article 182 paragraph (2) letter f); carry out certification of food and non-food animal products (article 182 paragraph (2) letter g). 3. the food and non-food traffic product control section has the duty to carry out monitoring and supervision of animal product traffic (article 182 paragraph (3) letter g). volume 2, issue 1, june 2019 : 31 42 36 | regulation of food quality development and supervision in denpasar city 6. office of industry and trade a. field of bina sarana (article 228) 1. the industrial development section has the task of providing guidance and guidance on the use of raw/auxiliary materials in the field of industrial business (article 230 paragraph (1) letter h), preparing technical guidance materials for improving industrial production quality; preparing technical implementation instructions in improving the quality of industrial production (article 230 paragraph (1) letters m and n), providing technical guidance on production, product diversification and quality of chemical industry production, forest products, various industrial designs, metal product design, electronics and small industries household craft (article 230 paragraph (1) letter o). 2. the supervision section is tasked with carrying out supervision and improvement of the quality of production, through fostering and implementing participatory management (article 230 paragraph (3) letter f), coordinating with relevant agencies related to industrial waste processing technology (article 230 paragraph (3) letter h ), implementing production quality standards through iso coaching (article 230 paragraph (3) letter i), preparing materials and carrying out technical guidance on the prevention or prevention of industrial waste, clean technology, machinery and environmentally friendly equipment, facilities and application of iso 14000, application of eco-labeling, sni (article 230 paragraph (3) letter j). b. field of cooperation and protection (article 232) the consumer protection section has the duty to provide guidance to consumers and producers regarding the rights and obligations of consumers and producers, actions/agreements that violate the rules for business actors and business actors’ responsibilities (article 233 paragraph (2) letter h), carry out guidance to producers to improve the quality of goods and or services that guarantee the continuity of the business of producing goods or services, health, comfort, security and consumer safety (article 233 paragraph (2) letter k). the denpasar city government has not implemented the provisions of article 19 of the decree of the minister of health number 942/menkes/sk/vii/2003 concerning guidelines for the requirements for sanitation of snack food because of the lack of cases of food poisoning in denpasar. however, preventive and anticipatory actions are the best for the benefit of the community given the many cases of food poisoning in regencies in bali. of course the duty from the health department; livestock, fisheries and marine services; and the industrial and trade services related to fostering and supervising food quality. however, the task of the denpasar city government in volume 2, issue 1, june 2019 : 31 42 | 37 regulation of food quality development and supervision in denpasar city fostering and supervising food quality should be regulated in a regulation so that the implementation of food quality supervision and supervision can run more effectively. b. supervision of sanitation and food safety hygiene in denpasar city hygiene and sanitation in the processing of food and beverages are needed to avoid the transmission of disease through food or illness which is often experienced by the people of indonesia due to lack of personal hygiene and environmental sanitation in the processing and serving of food and beverages7. the task of supervision over food security is carried out by the deputy of food safety and hazardous material supervision based on the head of bpom decree number 02001/sk/kbpom of 2001 concerning the organization of work procedures for the drug and food supervisory agency. based on the provisions of article 2 paragraph (1) of the government regulation of the republic of indonesia number 28 of 2004 concerning food safety, quality and nutrition, the circulation of food must meet sanitation requirements. then in paragraph (2) the sanitation requirements referred to are facilities and/or infrastructure; organizing activities; and individuals. according to widyawati, hygiene or cleanliness is a human or individual effort to prevent the occurrence of disease in the environment where the person is located.8 in addition to the term hygiene, there is also the term sanitation which, according to prabu, is a prevention effort that focuses on ensuring that food is not dangerous, starting from the production of food and beverages to being ready for consumption by consumers.9 in the process of processing food, a standard is needed, both sanitation standards and safety standards. in processing food, food producers must pay attention to the sanitation operational procedure (ssop) to avoid contamination of food and beverages10. there are several sanitation requirements, 1. water security clean water is a means of cleaning food from pollution, but dirty water will only add a lot of pollution to food. therefore, it is necessary to monitor water hygiene regularly. 2. cleanliness of food processing equipment equipment and work clothes that are used to process food can be a source of pollution, therefore equipment to clothes used for work must be kept clean by routine cleaning after use. 7islamy, g. p., sumarmi, s., & farapti. (2018). analisis higiene sanitasi dan keamanan makanan jajanan di pasar besar kota malang. amerta nutrition, universitas airlangga, 2(1), pp. 29 – 36. 8rahmadhani, d., & sumarmi, s. (2017). gambaran penerapan prinsip higiene sanitasi makanan di pt aerofood indonesia, tangerang, banten. amerta nutrition, universitas airlangga, 1(4), 291 – 299. 9ibid. 10pudjirahaju, a. (2018). bahan ajar gizi: pengawasan mutu pangan. jakarta: kementerian kesehatan republik indonesia, p. 73. volume 2, issue 1, june 2019 : 31 42 38 | regulation of food quality development and supervision in denpasar city 3. avoid cross contamination cross contamination occurs because clean food mixes with dirty food so that food is polluted. 4. cleanliness of facilities hand washing facilities, sanitation and toilets are sources of contamination, so that they are cleaned as much as possible so as not to pollute foodstuffs. 5. avoiding the ingredients that cause pollution the substances that cause pollution are industrial chemicals whose use must be in accordance with established operational standards so as not to pollute foodstuffs. 6. labeling, storage and use of toxic chemicals toxic chemicals must be labeled to avoid misuse. storage must also be considered carefully so that there is no direct or indirect contact with food. 7. supervision of individual health conditions individual health conditions that manage food must be considered. personnel who are sick are not allowed to manage food because it can cause contamination. 8. pest control processing and storage of food must avoid all pests that cause contamination11. the safety of ready-to-eat food and drinks also needs to be considered by preventing food pollution. food safety or food safety is an effort to prevent food and beverages from possible biological, chemical and other objects12. contamination or contamination13 what is meant is food and beverage insurance, selection, storage, treatment and sanitation facilities for food. in addition, food traders and processors are required to wear clothing covers, coverlets and headgear to avoid contamination. to maintain public health, food guidance and supervision by local governments must be carried out so that it is safe and suitable for consumption. the supervision efforts on sanitation and food safety hygiene carried out by the denpasar city government are adjusted as follows: a. in 2013, the health office conducted guidance and inspection of household processed food companies with the aim of protecting consumers and checking whether the processed food had met the standards for proper consumption. in addition, inspection of production facilities, hygiene and sanitation, processing methods, materials used, and water quality by means of testing14 sesuai dengan tugas dinas kesehatan sebagaimana termuat pada pasal 38 ayat (2) 11ibid. 12islamy, g. p., sumarmi, s., & farapti. (2018). loc. cit. 13firmansyah, a. a., & evendia, m. (2014). politik hukum penetapan baku mutu lingkungan sebagai instrumen pencegahan pencemaran lingkungan hidup. kanun: jurnal ilmu hukum, universitas syiah kuala, 16(1), p. 32. 14dinkes. (2013, 20 mei). pembinaan dan pemeriksaan p-irt. dinas kesehatan kota denpasar. retrieved from https://dinkes.denpasarkota.go.id/berita/read/5978 volume 2, issue 1, june 2019 : 31 42 | 39 regulation of food quality development and supervision in denpasar city huruf g peraturan walikota denpasar nomor 33 tahun 2008 tentang uraian tugas jabatan pada organisasi dinas daerah kota denpasar. b. in 2015 to 2016, the denpasar city government in collaboration with the indonesian center for drug and food control (bbpom) carried out supervision of the circulation of food that is thought to contain dangerous ingredients. supervision is carried out in various places such as school canteens, street vendors and traditional markets. the denpasar city government through the relevant agencies and bppom testing food using a rapid test kit also provides guidance to traditional market managers to be able to carry out rapid test testing of children independently. the health office attaches stickers to every street vendor who has received guidance and supervision so that the community is no longer anxious to consume snacks that street vendors sell. in addition, the mobile lab is also operated so that testing of food and drinks sold in public places is safe for consumption15 c. in 2017, the denpasar city government in collaboration with bbpom held a market roadshow to review markets that need improvement. in order to monitor market food security, a market food safety team (tkpp) was formed under the responsibility and supervision of bbpom denpasar to avoid the adverse effects of hazardous materials that harm society16. d. in 2018, bbpom conducted an advocacy to the denpasar city health office to supervise and limit processed food and beverages containing rodamin b, especially on snacks.17. e. in 2018, the bali province animal husbandry and animal health service and the upt. denpasar city slaughterhouse provides guidance to the community to prioritize animal hygiene and health and places to slaughter animals so that sacrificial meat is safely consumed in accordance with the duties of the livestock, fisheries and marine services as contained in article 182 paragraph (1) letters f and g the mayor of denpasar number 33 of 2008 concerning job descriptions at the regional office of the city of denpasar. denpasar city government has made efforts to foster and supervise the cleanliness of sanitation and food safety very well. prevention efforts are also made to avoid extraordinary events in the form of food poisoning. the testing of food and beverages is carried out by the denpasar city government so that people no longer worry about contamination of processed foods and beverages. 15humas. (2016, 10 mei). pengawasan obat dan makanan. sekretariat daerah kota denpasar. retrieved from https://setda.denpasarkota.go.id/berita/read/12264 16bpom. (2017, 21 februari). roadshow bbpom – pemkot untuk pasar sehat denpasar. badan pengawas obat dan makanan. retrieved from https://www.pom.go.id/new/view/more/berita/12595/roadshow-bbpom--pemkot-untuk-pasar-sehat-denpasar.html 17bpom. (2018, 22 maret). berantas rodamin b: bbpom advokasi ke dinas kesehatan kota denpasar. badan pengawas obat dan makanan. retrieved from https://www.pom.go.id/new/view/more/berita/14170/ berantas-rodamin-b---bbpom-advokasi-ke-dinas-kesehatan-kota-denpasar.html volume 2, issue 1, june 2019 : 31 42 40 | regulation of food quality development and supervision in denpasar city conclusion the denpasar city government has not implemented the provisions stipulated in article 19 of the decree of the minister of health no. 942/menkes/sk/vii/2003 concerning guidelines for the requirement of food hygiene sanitation snacks to regulate the guidance and supervision of food quality in the regions. although it has not been explicitly regulated, the denpasar city government has carried out the task of fostering and supervising food quality which is implicitly regulated in the regional regulation of denpasar city number 7 of 2008 concerning the organization and work procedures of the regional office of denpasar city jo. denpasar mayor’s regulation number 33 of 2008 concerning job position descriptions at the regional office of the city of denpasar. denpasar city government through the health office; office of animal husbandry, fisheries and marine affairs; and the office of industry and trade carries out the task of fostering and supervising food quality, such as holding food and nutrition alert system (spkg) activities as a preventive and anticipatory action on nutrition and food problems, carrying out monitoring and quality control of food and non-food animal products and their distribution and guidance to producers in order to improve the quality of goods so as to ensure health, safety and consumer safety. the denpasar city government through the health office in collaboration with the central for drug and food control (bbpom) supervises and guides street vendors and also routinely checks processed foods and beverages. in addition, the livestock service office also provides guidance to the community to maintain the sanitation and health of sacrificial animals. producers and business actors must be fostered and supervised so as not to commit fraud in running their businesses such as using food preservatives, not using clean water for sanitation or using food that is not feasible. the community as consumers must also be given counseling and introduction to unhealthy processed foods and beverages so that people are more careful in buying and consuming processed foods and beverages. reference ags. (2018, 24 agustus). pemkot denpasar siagakan 50 tenaga kesehatan hewan. pemerintah kota denpasar. retrieved from https://www.denpasarkota.go.id/ berita/baca/14026 bpom. (2017, 21 februari). roadshow bbpom – pemkot untuk pasar sehat denpasar. badan pengawas obat dan makanan. retrieved from https://www.pom.go.id/ new/view/more/berita/12595/roadshow-bbpom---pemkot-untuk-pasar-sehatdenpasar.html volume 2, issue 1, june 2019 : 31 42 | 41 regulation of food quality development and supervision in denpasar city bpom. (2018, 22 maret). berantas rodamin b: bbpom advokasi ke dinas kesehatan kota denpasar. badan pengawas obat dan makanan. retrieved from https:// www.pom.go.id/new/view/more/berita/14170/berantas-rodamin-b---bbpomadvokasi-ke-dinas-kesehatan-kota-denpasar.html bpom. (2018, 30 januari). berita keracunan bulan juli – september 2017. sentra informasi keracunan nasional. retrieved from http://ik.pom.go.id/v2016/beritakeracunan/berita-keracunan-bulab-juli-september-2017 decree of the minister of health of the republic of indonesia number 942/menkes/sk/ vii/2003 concerning guidelines for snack sanitation hygiene requirements. dinkes. (2013, 20 mei). pembinaan dan pemeriksaan p-irt. dinas kesehatan kota denpasar. retrieved from https://dinkes.denpasarkota.go.id/berita/read/5978 firmansyah, ade arif, & evendia, malicia. (2014). politik hukum penetapan baku mutu lingkungan sebagai instrumen pencegahan pencemaran lingkungan hidup. kanun: jurnal ilmu hukum, universitas syiah kuala, 16(1), 19 – 37. hasan, k. n. sofyan. (2014). kepastian hukum sertifikasi dan labelisasi halal produk pangan. dinamika hukum, universitas jenderal soedirman, 14(2), 227 – 238. hasanudin, muhammad. (2012). puluhan warga denpasar keracunan nasi bungkus. kompas.com. retrieved from https://nasional.kompas.com/ read/2012/07/16/04384953/puluhan.warga.denpasar.keracunan.nasi.bungkus humas. (2016, 10 mei). pengawasan obat dan makanan. sekretariat daerah kota denpasar. retrieved from https://setda.denpasarkota.go.id/berita/read/12264 islamy, galang panji, sumarmi, sri, & farapti. (2018). analisis higiene sanitasi dan keamanan makanan jajanan di pasar besar kota malang. amerta nutrition, universitas airlangga, 2(1), 29 – 36. law of the republic of indonesia number 18 of 2012 concerning food. state gazette of the republic of indonesia, number 227 of 2012. supplement to the state gazette of the republic of indonesia, number 5360. mamuaja, christine f. (2016). pengawasan mutu dan keamanan pangan. manado: unsrat press. p., indra bagus h. a. (2013). pelaksanaan sistem pengawasan standar mutu pangan kemasan kripik pisang agung oleh dinas perindustrian dan perdagangan di kabupaten lumajang. kumpulan jurnal mahasiswa fakultas hukum, universitas brawijaya, 1 – 11. volume 2, issue 1, june 2019 : 31 42 42 | regulation of food quality development and supervision in denpasar city pudjirahaju, astutik. (2018). bahan ajar gizi: pengawasan mutu pangan. jakarta: kementerian kesehatan republik indonesia. rahmadhani, dini, & sumarmi, sri. (2017). gambaran penerapan prinsip higiene sanitasi makanan di pt aerofood indonesia, tangerang, banten. amerta nutrition, universitas airlangga, 1(4), 291 – 299. regional regulations of denpasar city number 7 of 2008 concerning the organization and work procedures of denpasar city. regional gazette of the city of denpasar, number 7 of 2008. supplement to the regional gazette of the city of denpasar, number 7. regulation of mayor of denpasar number 33 of 2008 concerning the description of job duties in the denpasar municipal service organization. regional news of the city of denpasar, number 33 of 2008. sss. (2014). 22 warga denpasar keracunan ikan. detiknews. retrieved from https://news. detik.com/berita/191147/22-warga-denpasar-keracunan-ikan surya, i made. (2014). bocah tujuh tahun tewas keracunan. antara bali. retrieved from https://bali.antaranews.com/berita/60031/bocah-tujuh-tahun-tewas-keracunan edit.indd volume 2, issue 1, june 2019 : 21 30 | 21 standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers ni putu teresa giovana master program of notary studies universitas udayana, indonesia email: teresagiovana@gmail.com abstract research on the commitment of binding sale and purchase (ppjb) in terms of the marketing of flats is a step in legal protection for consumers who will buy flats. this ppjb will bind both parties, namely sellers and buyers for the legal sale and purchase. however, often in terms of the marketing of flats, some rogue developers market flats when the apartment building does not yet have a building permit. this is very contrary to law number 20 of 2011 concerning flats, which says that the marketing of flats must be carried out if the apartment has an imb. this causes uncertainty of protection for consumers in terms of purchasing flats. plus ppjb is generally made only with a standard agreement made unilaterally so that consumers cannot freely express their opinions, besides that consumers are also susceptible to losses due to ppjb made without the said imb. this research was conducted to examine the ppjb in terms of protection for consumers of the flats. this research is normative, namely by way of implementing a legal and conceptual approach. the legal material of this study uses primary legal materials, secondary legal materials and tertiary legal materials by conducting legal material collection using a single method, namely literature study. protection for consumers is done by using ppjb made by a notary to minimize the impact that might occur in the future keywords : ppjb; flats; consumer protection; buy and sell; booking. introduction in modern times, human needs are increasing. primary, secondary, and tertiary needs are very much considered by today’s advanced society. people tend to make needs as a form that can be invested. increasing population growth makes the needs of the home increasingly high. many middle-income communities choose to own their own homes with property rights so that they can also be used as investment facilities in the future. houses are a necessity for the community, besides being used as a place to live and can also be used as a savings facility in the old days, namely immovable objects but have a value that is increasingly high. demand for houses in big cities is increasingly high, and makes a variety of population problems.1 coupled with increased income and the ease of obtaining credit from banks for use in the case of buying a house. this request is not 1dewi, a. a. i. a. a. (2016). kewenangan pemerintah dalam pengendalian penduduk pendatang dengan melibatkan desa pakraman. jurnal magister hukum udayana (udayana master law journal), universitas udayana, 5(4), p. 873. volume 2, issue 1, june 2019 : 21 30 22 | standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers commensurate with land in densely populated cities located in the territory of indonesia. increasingly interested people and prices that soar every year, resulting in middle-class people rethinking to own a home. the anxiety is a reference for many companies thinking of making houses vertically (upwards) to minimize existing land but can accommodate many heads of households. flats are now an option for residents in terms of home ownership but have limited funds to buy houses and land with ownership rights. the flats provide a solution, which can have a flat unit on property or lease rights, but with land that is used as a joint right. more and more days, flats are increasingly in demand by many people, especially people who live in big cities choose to live in flats because they are cheaper and more practical than buying land with property rights and then building a house.2 flats according to law number 20 of 2011 concerning the next flats in this journal are referred to as flats laws are multilevel construction units that are established in one area, then consist of several functional parts for residents. the usual house is built vertically (upward) or horizontally (sideways). ownership of the apartment units is carried out privately but separately, especially the stacking construction is facilitated with shared land, shared objects and shared parts. one alternative is to own a house, but do not use a lot of land (land), the price of which is increasingly increasing, one of which is the construction of flats. arrangement of cities with flats that are intended for the middle class community can also reduce the construction of slum houses which are increasingly increasing in large cities.3 the construction of flats cannot be separated from the many developer companies that are increasingly competing to provide many lucrative facilities for prospective customers to be interested in the apartment units offered. the sale and marketing of these flats is closely related to the licensing issues which have been regulated in the flats law.4 construction of flats is closely related to licensing problems that must be done before construction is carried out. in relation to business, companies are always looking for profit gaps in every business. in connection with this, the apartment developer company is marketing, which is related to the licensing problem which is the main spearhead of the construction of flats.5 the housing law is stated to have regulated things that may or may not be done for the parties. these things are intended for the parties, namely sellers (developer of 2hastuty, r. y., winarno, b., & istislam. (2015). perlindungan hukum terhadap konsumen dalam jual beli rumah susun komersial yang belum dibangun. kumpulan jurnal mahasiswa fakultas hukum, universitas brawijaya, p. 4. 3ibid. 4illona, & anggraini, a. m. t. (2018). perlindungan hukum konsumen dalam hal pelaku usaha pengembang rumah susun yang sudah dinyatakan pailit (studi terhadap kemanggisan residence). jurnal hukum adigama, universitas tarumanagara, 1(1), p. 3. 5ibid., p. 2. volume 2, issue 1, june 2019 : 21 30 | 23 standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers flats) and prospective consumers of apartment units.6 the marketing of flats made by the float is closely related to licensing, therefore the marketing of flats has been included in the flats law. problems related to the marketing of these flats, typically associated with flats that have not been built, permits, to agreements made to protect consumers in terms of buying and selling flats. the marketing of these flats is contained in article 42 of the flats law which clearly states the conditions related to the marketing of flats. generally, problems that arise regarding apartment transactions are a common problem that arises between developers and prospective buyers of apartment units is the problem of flats that are sold using the ordering system.7 in the case of an agreement, later it will get an interaction that occurs between the legal subjects, in this case the formulation of the rights and obligations of the parties to be formulated and finally bound to the seller and buyer, and must be carried out by the parties concerned. the occurrence of an agreement if there is an agreement between the two parties making the transaction.8 a contract is an agreement which in this case is written in writing between two or more people who in this case will create a right and obligation between the parties, and are specifically regulated, subject matter regulated and prohibited for parties to the agreement.9 an agreement is basically divided into several types, namely authentic deeds and underhanded deeds. authentic deed is an article (agreement) issued by a public official appointed by the ministry of law and human rights, in which it is written in writing the matter must be carried out or in an event witnessed by the authorized official. public officials referred to in the making of this authentic deed are notaries, judges, bailiffs in a court, civil registry employees and so on. authentic deeds have the ability in the case of valid validation for both sides or more along with the descendants of his inheritance accepting the feasibility of the related party. the agreement on binding of buy and sell, hereinafter abbreviated as ppjb, is an agreement where the parties bind themselves to each other.10 the connection with this journal is that the ppjb flats is a developer company that ties itself to prospective customers, namely the developer of a flat binds itself by selling the apartment unit and the buyer ties himself to pay a sum of money to the seller.11 the function of ppjb for buyers 6ramelan, e., et al. (2015). perlindungan hukum bagi konsumen pembeli satuan rumah susun/strata title/ apartemen. yogyakarta: aswaja pressindo, p. 20. 7adawiyah, p. p., & rahman, t. (2017). analisis yuridis putusan pn. surabaya nomor: 869/pdt.g/2013/ pn.sby (studi kasus ketidakpastian tenggang waktu ppjb ke ajb). novum: jurnal hukum, universitas negeri surabaya, 2(2), p.3. 8kusumohamidjojo, b. (2017). perancangan dan legalitas kontrak. jakarta: cv. mandar maju, p. 6. 9ibid., p. 7. 10widjaja, h., & tanawijaya, h. (2018). analisis perbuatan melawan hukum dalam akta perjanjian pengikatan jual beli (ppjb) tanah antara koko purnomo santoso dengan pt. intan plaza adika (studi kasus: putusan mahkamah agung nomor 17/k/pdt/2016). jurnal hukum adigama, universitas tarumanagara, 1(1), p. 3. 11ramelan, e., et al. (2015). op. cit., p. 25. volume 2, issue 1, june 2019 : 21 30 24 | standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers (consumers) is as a guarantee of protection that in the future the apartment units that have been agreed to be purchased are prohibited from selling to different people with the developer, also according to the ppjb the apartment will be handed over to the buyer at a specified time in the ppjb, and will not sing down the advance that the buyer has given to the seller. however, even though there is an agreement that occurs between the two parties, if the object / object of the buying and selling process has not been handed over to the buyer because the buyer has not yet paid off, the ownership rights to the object are still in the seller’s hands. stacking. based on the explanation of ppjb in terms of consumer protection for flats above, the authors are interested in compiling a journal entitled position of the sale and purchase agreement (ppjb) in purchasing flats as a legal protection for consumers. based on the background and explanation of the ppjb in terms of consumer protection, the authors draw the formulation of the problem, namely: what is the legal strength of ppjb in the process of buying and selling apartment units? how is the protection for consumers in the purchase of flats made by the order process? writing this journal has two objectives, namely general goals and specific objectives. the general purpose is to develop the scientific field of law in the field of notary as a legal study relating to ppjb in terms of consumer protection for flats. the specific purpose of writing this journal is to analyze and understand the strength of ppjb in terms of legal protection for consumers of flats; and to review and analyze the protection of consumers in purchasing flats when buying and selling flats with an order process. the theoretical study related to this research related to this research is later in order to be useful for the reader in connection with the instructions to get references especially in the field of notary and provide additional sources of thought regarding the position of ppjb with regard to legal supervision of buyers regarding sales and home purchases. stacking; for this research lecturer and student team can function as thought material and support lecture activities in terms of ppjb as legal safeguards for clients in the sale and purchase of flats. this research is also expected to be a guide for the community when facing problems in terms of ppjb sale and purchase of flats as legal protection for consumers; for the author, the results of this study can be additional knowledge, especially in the case of ppjb as a legal shield for buyers of apartment sales and purchase transactions and as a final provision for completing final studies in the notary masters of the faculty of law, udayana university. method the type of research done in this journal is a normative legal research. this research is based on an ambiguity of the norm related to the position of ppjb in terms of protection against consumers during sale and sale transactions. the housing law stipulates that the sale and purchase transactions of flat housing units that are still in volume 2, issue 1, june 2019 : 21 30 | 25 standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers development stage are made using ppjb manufacture. the process of making ppjb is in front of notary. the making of ppjb in a sale and purchase transaction of a flat usually uses a basic agreement and is made by the seller, so that the principle of freedom of expression is not practiced at the time of a contract. other ambiguities that the ppjb did not fully guarantee the buyer in the sale of the flats, because ppjb did not transfer the ownership rights of the flats. the transfer of ownership from the seller to the buyer occurs when the trade and purchase (ajb) is signed on behalf of the seller and buyer. the type of approaches undertaken in this normative legal research isthe statute approach, and the fact approach. this research uses the source of the primary law material namely civil code, law number 20 year 2011 about the house, law number 8 year 1999 about consumer protection. in addition to primary legal materials, this study also uses secondary sources of legal materials such as legal journals, legal readings, legal papers and journals as well as the opinions of scholars from jurisprudents. techniques of collecting legal materials conducted in this research are literature study techniques. this research also uses legal analysis technique with description technique, interpretation technique, construction technique, evaluation technique, argumentation technique, and systematization technique. analysis and discussion a. legal strengths of the agreement on bonds for sale and purchase (ppjb) in the sale and purchase process of flats ppjb is an event of sale and purchase of objects in which the parties agree that an item at a future time will transfer ownership rights to another person. this ppjb actually does not result in a transfer of property rights from one party to another, but ppjb is an agreement between sellers who are apartment developers and prospective buyers of flats in terms of buying and selling units of the flats. in addition, ppjb also results in the existence of rights and obligations that must be carried out by both parties.12 the emergence of ppjb, wherein the parties are sellers and buyers when linked to the scope of an agreement, ppjb is contained in an obligatory agreement. the definition of an obligatory agreement is one that has been validated so that one agreement will become a bond between the parties, but this agreement only brings out the rights and obligations of the parties bound and has not yet occurred the transfer of rights from the object agreed.13 consideration of the emergence of ppjb in the sale 12simamora, n. a., kamello, t., sembiring, r., & leviza, j. (2015). asas itikad baik dalam perjanjian pendahuluan (voor overeenkomst) pada perjanjian pengikatan jual beli rumah (studi putusan pengadilan negeri simalungun no 37/pdt/plw/2012/sim). usu law journal, universitas sumatera utara, 3(3), p. 88. 13yudhantaka, l. (2017). keabsahan kontrak jual beli rumah susun dengan sistem pre project selling. yuridika, universitas airlangga, 32(1), p. 88. volume 2, issue 1, june 2019 : 21 30 26 | standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers and purchase transaction of this flats based on considerations namely; requirements regarding objects that are traded, namely the right to land from the apartment has been legitimately owned by the seller, in this case the developer of flats. ownership of land rights from this apartment is proven by land certificates or other evidence relating to the land, which is the ownership of the unit development company from sarusun (flats). the establishment of a flat unit in the case of licensing is also a collateral for the establishment of an apartment unit, if a marketing of the apartment unit is made early before the establishment of the apartment, then all matters agreed between the developer and the consumer will bound to them as a sales and purchase agreement (ppjb) for these parties. the need for residents to understand the procedures of a business selling and buying apartment units that generally starts from the instruction process (order), then proceed with the ppjb agreement making process if the process of establishing the apartment has reached 20% (twenty percent) which is the ppjb agreement this was made before a notary.14 ppjb flats are usually made by developers or developers as sellers of the apartment units. the basic engagement that is also carried out by business people in terms of transactions is something that is solely made to facilitate in a trade transaction in this case is the trading of apartment units. an agreement that is made by default will usually facilitate both parties in making an agreement as long as in terms of making the agreement does not harm both parties.15 ppjb generally contains matters relating to the rights and obligations of the seller, in this case the developer company and the rights and obligations of consumers of flats. the apartment unit is now not only intended for the upper class community, but also intended for the middle class and also the middle and lower classes, whose apartment units are equipped with adequate facilities in order to create flats as settlements that function for everyone and complete so that flats become a place to live that is comfortable and safe for its residents.16 the agreement on bonds for sale and purchase (ppjb) if made before a notary, the strength of the ppjb can be justified, if the making of the ppjb does not conflict with the principles and violates the principle of freedom of contract. the making of this ppjb can be justified even though it is made with a standard agreement or with a collective agreement, provided that the ppjb is not in conflict with the laws and regulations.17 14nurwulan, p. (2015). aspek hukum transaksi jual beli rumah susun/apartemen di daerah istimewa yogyakarta kaitannya dengan peran notaris-ppat. jurnal hukum ius quia iustum, universitas islam indonesia yogyakarta, 22(4), pp. 674 – 697. 15putri, a. d. u. (2010). tanggung jawab developer dalam perjanjian pengikatan jual beli (studi pada apartemen bellagio the residence mega kuningan). (magister tesis), universitas diponegoro, semarang, p. 96. 16triyanto, t., & adjie, h. (2018). perlindungan hukum terhadap konsumen atas perjanjian pendahuluan dalam jual beli atas satuan rumah susun yang dipasarkan dengan cara pre project selling. res judicata, universitas muhammadiyah pontianak, 1(1), p. 60. 17ibid. volume 2, issue 1, june 2019 : 21 30 | 27 standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers b. protection for consumers in purchasing flats that are made with the ordering system sale of flats for sale if done in cash or in other words a sale and purchase transaction made by order, is carried out by an agreement which is first carried out through a sales and purchase agreement (ppjb). generally, the contents of the ppjb regulate the sale and purchase of flats, but the format of the ppjb is generally limited to binding sale and purchase. this means a form of agreement which is a conditional agreement prior to the agreement on the sale of rights for the apartment unit, which after the sale of the purchase from the apartment has been paid, then a deed of transfer of rights is made and the signing of the sale and purchase act the ordering method in terms of the sale and purchase of flats is a sale and purchase of flats that were carried out before the construction of the flats was completed in terms of development. this is related to the sale of brochures carried out by the developer to consumers and promises that the apartment units received in the future will be the same as those listed in the initial agreement brochure. legal protection for consumers is a protection that is intended for weak parties, this is associated with consumer rights in the purchase of flats that are considered weaker compared to the developer of flats. as for the form of protection for consumers, the other part is if the making of a statutory regulation that guarantees the rights and obligations of each party both the seller and the buyer in order to create an orderly society.18 consumers are not just buyers, but consumers are also individuals or business entities that need services and / or goods. the thing that is also useful in the enactment of transactions between buyers and sellers is the switching of objects and / or services, including the transfer of satisfaction in using them.19 ppjb is a legal supervision effort for flats consumers if the sale and purchase of flats is used when using the ordering system. this effort is a preventive legal protection effort.20 pelindungan hukum yang timbul sebelum adanya suatu sengketa lazim disebut sebagai preventif.21 the ppjb will then contain clauses that must be fulfilled by the parties, and in the ppjb it must be completed with a fine. normally the sale of apartment units is carried out at an early time before the establishment of the apartment unit is carried out. the sale of the apartment unit purchase is carried out when the apartment has not been built yet, it is carried out with a pre-order method 18s., salim h., & nurbani, e. s. (2016). penerapan teori hukum pada penelitian tesis dan disertasi. jakarta: pt. raja grafindo persada, pp. 265 – 270. 19shidarta. (2006). hukum perlindungan konsumen indonesia. jakarta: grasindo, p. 29. 20fitriyani, d. n. (2014). perlindungan hukum bagi pembeli dalam jual beli satuan rumah susun dengan sistem pemesanan (studi kasus putusan pengadilan negeri jakarta selatan nomor 286/pdt.g/2012/jkt-sel). (magister tesis), universitas gadjah mada, yogyakarta, p. 176. 21anggreni, l. d. m. (2016). pembatalan perjanjian secara sepihak oleh konsumen kepada pt. bali dewata mas sebagai pengembang perumahan. (sarjana skripsi), universitas udayana, denpasar, p. 5. volume 2, issue 1, june 2019 : 21 30 28 | standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers of the unit to be purchased by the buyer. after a purchase agreement occurs, the agreement is poured into a preliminary agreement in the form of proof of confirmation of an order. agreements made by the developer before the development has the power of proof. the strength of the evidence occurs if in the case of the agreement the parties do not deny part of the agreement. the responsibility of the developer in terms of the sale of the purchase of flats can be found from the beginning of the first publication of the flyer designation of the apartment unit by the seller. the application of ppjb flats occurred until after the transfer of flats from the developer of flats to consumers. if a loss occurs when the ppjb is still ongoing, then the brochure from the developer of the apartment can be used as a claim material for consumers if consumers feel aggrieved by the developer of flats. this loss is related to the facilities agreed on in the brochure brochure that are different from what is in the field. protection for consumers of flats if a default occurs before the ppjb can be carried out through a deliberation agreement. however, if the consensus agreement does not reach the final decision agreed upon by both parties, then the consumer can use the claim line to the realm of the court or use a non-litigation route, namely the arbitration path to reach an agreement between the two parties. protection for consumers of the sharia unit if the purchase of goods with the order system is protected using ppjb. this is regulated in the flats law which regulates the sale and purchase of flats with an ordering system. article 43 of the housing law is specified if the method of selling a flat before the apartment is completed can be done by making a ppjb which is carried out before a notary. the preparation of the ppjb must also complete the certainty qualifications of several things such as; land ownership status, building construction permit (imb), availability of facilities, infrastructure and public utilities, at least 20% (twenty percent) of construction and part agreed upon between the developer company and the consumer at the time of sale and purchase of the apartment. the agreement relationship that occurs between companies selling flats with consumers buying flats begins with an agreement under the hand. the agreement under the hand was carried out between the parties namely the apartment developer company as the seller and the consumer buying the flat, then a sppjb was signed, which was subsequently legalized by a notary.22 protection for consumers in the event of a loss in the sale and purchase of flats is also listed in law number 8 of 1999 concerning consumer protection, if the buyer feels disadvantaged then it can sue the seller in this case the apartment developer company to the agency that has the authority to settle problems between buyers and the seller in this case through the arbitration channel or through litigation, namely with the general court. 22ramelan, e., et al. (2015). op. cit., p. 28. volume 2, issue 1, june 2019 : 21 30 | 29 standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers conclusion the ppjb agreement is made in the process of purchasing flats with orders that have the power of proof as long as the parties to each other acknowledge the agreement and the contents of the agreement and there is no denial between the parties. ppjb agreements that are carried out when selling and purchasing apartment units with an order system, if used as evidence, then in the proof (validation) in the court it requires supporting other evidence such as witnesses to prove the truth of the evidence. ppjb is considered to have binding strength if it does not conflict with the laws and regulations. protection for consumers of flats in buying and selling through the order process is a protection that is carried out using the sales and purchase agreement (ppjb). ppjb is a safeguarding effort for buyers in terms of the sale and purchase of a social unit with an order system. this effort is one of the preventive legal protection efforts. the consumer protection for buyers of flats with this ordering system is regulated by the requirements in the flats law. reference adawiyah, p. p., & rahman, t. (2017). analisis yuridis putusan pn. surabaya nomor: 869/ pdt.g/2013/pn.sby (studi kasus ketidakpastian tenggang waktu ppjb ke ajb). novum: jurnal hukum, universitas negeri surabaya, 2(2). anggreni, l. d. m. (2016). pembatalan perjanjian secara sepihak oleh konsumen kepada pt. bali dewata mas sebagai pengembang perumahan. (sarjana skripsi), universitas udayana, denpasar. dewi, a. a. i. a. a. (2016). kewenangan pemerintah dalam pengendalian penduduk pendatang dengan melibatkan desa pakraman. jurnal magister hukum udayana (udayana master law journal), universitas udayana, 5(4), 871 – 894. fitriyani, d. n. (2014). perlindungan hukum bagi pembeli dalam jual beli satuan rumah susun dengan sistem pemesanan (studi kasus putusan pengadilan negeri jakarta selatan nomor 286/pdt.g/2012/jkt-sel). (magister tesis), universitas gadjah mada, yogyakarta. hastuty, r. y., winarno, b., & istislam. (2015). perlindungan hukum terhadap konsumen dalam jual beli rumah susun komersial yang belum dibangun. kumpulan jurnal mahasiswa fakultas hukum, universitas brawijaya, 1 – 25. illona, & anggraini, a. m. t. (2018). perlindungan hukum konsumen dalam hal pelaku usaha pengembang rumah susun yang sudah dinyatakan pailit (studi terhadap kemanggisan residence). jurnal hukum adigama, universitas tarumanagara, 1(1). volume 2, issue 1, june 2019 : 21 30 30 | standing commitment of sale and purchase agreement (ppjb) in purchasing flats unit as legal protection for consumers kusumohamidjojo, b. (2017). perancangan dan legalitas kontrak. jakarta: cv. mandar maju. nurwulan, p. (2015). aspek hukum transaksi jual beli rumah susun/apartemen di daerah istimewa yogyakarta kaitannya dengan peran notaris-ppat. jurnal hukum ius quia iustum, universitas islam indonesia yogyakarta, 22(4), 674 – 697. putri, a. d. u. (2010). tanggung jawab developer dalam perjanjian pengikatan jual beli (studi pada apartemen bellagio the residence mega kuningan). (magister tesis), universitas diponegoro, semarang. ramelan, e., et al. (2015). perlindungan hukum bagi konsumen pembeli satuan rumah susun/strata title/apartemen. yogyakarta: aswaja pressindo. s., salim h., & nurbani, e. s. (2016). penerapan teori hukum pada penelitian tesis dan disertasi. jakarta: pt. raja grafindo persada. saputri, i. s. (2015). kekuatan hukum perjanjian pengikatan jual beli (ppjb) tanah menurut hukum perdata. (sarjana skripsi), universitas lampung, bandar lampung. shidarta. (2006). hukum perlindungan konsumen indonesia. jakarta: grasindo. simamora, n. a., kamello, t., sembiring, r., & leviza, j. (2015). asas itikad baik dalam perjanjian pendahuluan (voor overeenkomst) pada perjanjian pengikatan jual beli rumah (studi putusan pengadilan negeri simalungun no 37/pdt/plw/2012/ sim). usu law journal, universitas sumatera utara, 3(3), 84 – 96. triyanto, t., & adjie, h. (2018). perlindungan hukum terhadap konsumen atas perjanjian pendahuluan dalam jual beli atas satuan rumah susun yang dipasarkan dengan cara pre project selling. res judicata, universitas muhammadiyah pontianak, 1(1), 57 – 69. widjaja, h., & tanawijaya, h. (2018). analisis perbuatan melawan hukum dalam akta perjanjian pengikatan jual beli (ppjb) tanah antara koko purnomo santoso dengan pt. intan plaza adika (studi kasus: putusan mahkamah agung nomor 17/k/pdt/2016). jurnal hukum adigama, universitas tarumanagara, 1(1). yudhantaka, l. (2017). keabsahan kontrak jual beli rumah susun dengan sistem pre project selling. yuridika, universitas airlangga, 32(1), 84 – 104. volume 5, issue 2, december 2022: 205 – 215 this work is licensed under a creative commons attribution 4.0 international license. weak investment law enforcement in land and forest fire cases in indonesia ω utji sri wulan wuryandari,1 anggi dewinta chairani,2 myrna asnawati safitri.1 1faculty of law, pancasila university, indonesia 2faculty of law, krisnadwipayana university, indonesia ωemail correspondence: myrnaasnawati@univpancasila.ac.id abstract this article aims to analyze the formulation of sanctions in indonesian investment law against foreign investors who commit environmental damage and pollution in the case of forest and land fires. this paper uses a legislative approach by analyzing the quality of legal norms on regulating sanctions for foreign investors involved in forest and land fires. the results show that the current development of global investment law requires companies, including transnational companies, to carry out environmental responsibilities in addition to social responsibility and good governance. the need to build pro-environmental investment law is important to strengthen environmental law enforcement with a multi-door approach. this is not followed by the investment law in indonesia. the country's investment law does not strictly regulate sanctions against investors who violate their obligations and responsibilities to maintain the environment. the aspect of government supervision of the implementatio of investor obligations is also weak. these weaknesses in legal substance show that investment law is not in line with today's investment objectives that require support for environmental preservation or better known as green investment. this paper concludes that investment law will not be effective in supporting law enforcement in forest and land fire cases due to the lack of sanction formulation and weak supervision. because of this, the existing investment law is still far from the goal of realizing green investment in indonesia. keywords: investment law; forest and land fires; environmental responsibility; date of submission: may 10, 2022 date of publication: december 29, 2022 doi: http://dx.doi.org/10.56087/substantivejustice.v5i2.204 introduction forest and land fires (hereinafter abbreviated as karhutla) trigger environmental damage and pollution, especially air pollution. the smoke from forest and land fires is not only felt domestically but also causes transboundary pollution. this condition has triggered tense diplomatic relations between countries, demanding the birth of the asean regional agreement to tackle transboundary pollution. (sheldon & sankaran, 2017) (varkkey, 2014) (heilmann, 2015) (bilqis, 2020) https://creativecommons.org/licenses/by-sa/4.0/ mailto:myrnaasnawati@univpancasila.ac.id http://dx.doi.org/10.56087/substantivejustice.v5i2.204 volume 5, issue 2, december 2022: 205 – 215 206 | weak investment law… in the last five years there has been a downward trend in forest and land fires in indonesia. however, this does not mean that the threat of forest and land fires can be eliminated. after the massive 2015 forest and land fires that engulfed 2.6 million hectares of forest and land in the country, 2016 to 2021 saw a significant decline. based on data from indonesia's ministry of environment and forestry (klhk) from 2016 to 2021, the average area of forest and land burned was approximately 573 thousand hectares. the highest fire occurred again in 2019 which consumed 1.6 million hectares. but after that, the level of forest and land fires can be maintained not exceeding 400 thousand hectares. (al-jalahma et al., 2020) forest and land fires in 2015 mostly occurred in forestry and plantation concession areas. the 2015-2016 forest and land fires involved 30 corporations, and from 2019 to 2021 there were 19 corporations. these include corporations with foreign capital. (juniar, 2021) forest and land fires threaten biodiversity, trigger damage to forest ecosystem functions and increase global temperatures. loss of life, property, health, and furthermore national and regional economies are also affected by forest and land fires. the world bank, for example, stated that economic losses due to forest and land fires in indonesia in 2015 reached usd 1.6 billion or 2% of indonesia's gross domestic product (gdp) at that time. (glauber et al., 2016) indonesia's investment law actually adheres to the principle of being environmentally sound. this law states that investors have an obligation to maintain the environment. it also requires investors who cultivate non-renewable natural resources to allocate funds for environmental restoration. however, law enforcement in this investment sector is still weak. for this reason, it is important to know how the investment law regulates sanctions against investors who do not carry out environmental maintenance obligations and government supervision of the implementation of environmental obligations of investors. a review of the literature shows that the legal aspects of investor liability are mostly studied from criminal, civil, administrative, and international law perspectives. no studies have been found that investigate the ability of investment law to strengthen investors' legal responsibility for the environment. studies on the legal responsibility of corporations and investors for the prevention of forest and land fires explain the importance of making clear criteria in the formulation of the responsibility of corporations, shareholders and officers of the corporation. (wibisana, 2016) (gintoe et al., 2019) (ikhsana & rahmah, 2021) (juniar, 2021) (wikasitakusuma & hartiwiningsih, 2022) however, studies that explore the relationship between investment law in indonesia and environmental law enforcement, especially in the case of forest and land fires, have yet to be found. apart from the sanction aspect, supervision of investment is also important. one study recommends that oversight of investors is not only carried out by the government but also parliament. the house of representatives in this case needs to increase supervision of the government that provides investment licenses. parliament is also expected to encourage the government to tighten supervision on companies. (yusyanti, 2019) however, how the volume 5, issue 2, december 2022: 205 – 215 weak investment law… | 207 government, in this case the ministry of investment, conducts supervision has not been discussed. investment law that has a firm and robust formulation of norms on investors' environmental obligations and responsibilities can strengthen the implementation of a multi-door approach in environmental law enforcement that allows the use of various laws and regulations in handling a legal case. so far, the multi-doors approach has not used the investment law regime. it can be presumed that this is due to the weak legal sanctions provided by existing investment law. therefore, to strengthen the multi-doors approach, strengthening sanctions in investment law is needed. (trisna agus, 2019) (aminudin et al., 2020) this article aims to describe the development of international and transnational investment law today and relate it to the quality of norms in the investment law relating to sanctions and supervision of investors who do not carry out their environmental obligations and responsibilities. it is important that norms related to sanctions and supervision are formulated clearly and firmly so that law enforcement can be strengthened. method this paper is based on legal research using a statutory approach. legal materials are mainly taken from laws relating to investment, environment and forestry. several international legal instruments such as united nations resolutions and relevant international treaties are also used. the focus of the research is the development of international investment law associated with the quality of legal norms in investment law that can support law enforcement. this research assesses the robustness of legal norms based on two elements, namely the existence and clarity of the formulation of sanctions and supervision rules that will determine the enforcement power of the investment law under study. analysis and discussion this section explains three things related to the focus of the research, namely the concept of environmental responsibility in multinational investment; the regulation of sanctions against the obligations and responsibilities of foreign investors in indonesian investment law and the scope of supervision of investment in indonesian law. in the foreign investors concept of environmental responsibility, recent developments in transnational business show that investors are now held accountable for integrating environmental, social responsibility and good business governance. the environment, social and governance (esg) approach to investment has emerged in line with demands to implement green investments and respect human rights. (henderson, 2012) (aljalahma et al., 2020) (macneil & esser, 2022) three driving factors behind the emergence of the concept of transnational corporate environmental responsibility. the first is the rise of demands by investment host countries on transnational corporations to protect the environment, either in domestic or international dispute volume 5, issue 2, december 2022: 205 – 215 208 | weak investment law… resolution forums. the second factor is the recent trend of investment treaties demanding the inclusion of clauses on respect for human rights, environmental protection and social responsibility of transnational corporations when operating in the host country. finally, united nations resolution 26/9 elaborates the use of internationally legally binding instruments on transnational corporations and other business enterprises in relation to human rights. (gathii & puig, 2019) un resolution 26/9 emphasizes three points. the first is that the primary obligation and responsibility of states is to promote and protect human rights from violations that occur within their national jurisdiction, including violations committed by transnational corporations. second, it emphasizes that transnational corporations are responsible for respecting human rights and that civil society has an important role to play in promoting corporate social responsibility, and supporting efforts to prevent, mitigate and seek remedies for adverse human rights impacts resulting from the activities of transnational corporations. important to note is the un resolution on guiding principles on business and human rights (resolution 17/4). this resolution commands business entities, among other things, to avoid causing or contributing to adverse human rights impacts and to address such impacts when they occur. business entities are also required to prevent or mitigate human rights impacts that are directly linked to their operations, products or services, even if they do not contribute to those impacts. the business and human rights guidelines are an important instrument to enforce the environmental responsibility of transnational corporations because the environment is intrinsically linked to human rights. everyone has the right to a good and healthy environment. this is stated in the indonesian constitution. recent human rights theory also states that the right to the environment is an important part of human rights either procedurally or substantively. (anton & shelton, 2011) (alan, 2017) the un guidelines on business and human rights have been adopted into the national action plan on business and human rights published by the national human rights commission. the document states that the adverse impacts that may be caused by a company's operations include impacts on communities, on the environment and on workers. komnas ham stated that there is an increase in human rights violations involving corporations. one of the most common violations is related to the environment. (prinhandono et al., 2021) given these developments, it is imperative that the environmental obligations and responsibilities of investors, including foreign investors, are taken seriously. the question then is how the investment legal framework in indonesia supports this intention. the following section explains the substance of investment law relating to investors' environmental responsibilities. limitation of legal sanctions on investor's environmental liability and responsibility determined by indonesian regulation, know as job creation intends to improve the investment volume 5, issue 2, december 2022: 205 – 215 weak investment law… | 209 ecosystem through the implementation of risk-based business licensing. investment activities according to the job creation law need to mitigate hazards from health, safety and environmental aspects. in reality, investment in the utilization of natural resources is prone to causing environmental damage and pollution. therefore, investment law needs to ensure that environmental disaster mitigation needs to be clearly regulated. the main legal basis for investment activities in indonesia. one of the objectives of this law is to promote sustainable economic development. according to the investment law, environmentally sound principle is one of the principles in investment. this principle requires investors to pay attention to and prioritize the protection and maintenance of the environment. in general, investors have obligations and responsibilities that every investor is obliged to apply the principles of good corporate governance, implement corporate social responsibility, make reports on investment activities and submit them to the investment coordinating board (now the ministry of investment), respect the cultural traditions of the community around the location of investment business activities, and comply with all provisions of laws and regulations. that the responsibilities of investors are to ensure the availability of capital from sources that are not contrary to the law, not to abandon business activities, to create a healthy business climate, to prevent monopolistic practices and activities that harm the state, to preserve the environment, to ensure work safety, and to comply with all provisions of laws and regulations. in practice, there are many violations of the obligations and responsibilities of investors. abandonment of land that has obtained land rights, for example, is widely practiced by investors in the plantation sector. some of the environmental damage and pollution caused by forest and land fires also occurred in the concession areas of foreign investment companies. one of the companies which operates in riau province, is a malaysian palm oil company that was convicted by the supreme court through decision number 2042k/pid.sus/2015. in the verdict, the supreme court sentenced the company to a fine of rp. 1.5 billion (usd 98 thousand) and an additional penalty of restoring 40 hectares of burned land. for this, the company provided idr 15 billion (usd 980 thousand) to the government for environmental restoration costs. in west kalimantan, a similar case occurred involving a subsidiary of a malaysian palm oil company. the district court of sintang, west kalimantan sentenced the company to pay material damages of rp. 270 billion and to pay environmental recovery costs of rp. 642 billion. the total cost incurred by the company was rp. 912 billion. meanwhile, the ministry of environment and forestry is asking for rp. 1 trillion (usd 6.5 million) in compensation and restoration costs. this is for the 2,560 hectares of burned land. law enforcement in the two forest and land fire cases above did not use the investment law at all. despite explicitly stating the responsibility of investors to preserve the environment, there are no sanctions stipulated in the investment law for violations of this responsibility. law enforcement, as in the case of forest and land fires, can certainly be constrained by the absence volume 5, issue 2, december 2022: 205 – 215 210 | weak investment law… of these sanctions. environmental law enforcement is the result of various factors such as regulatory content material, government apparatus, infrastructure, community participation and program innovation. (akhmaddhian et al., 2021) nevertheless, the content of the regulation remains the main determining factor. therefore, the existence of clearly and firmly formulated sanctions will be significant in law enforcement. administrative sanctions associated with non-performance of the investor's obligations, not sanctions against non-performance of responsibilities. the investors who do not fulfill their obligations may be subject to administrative sanctions, such as written warnings, restrictions on business activities, suspension of investment activities or facilities, and revocation of licenses or facilities. there are no provisions related to sanctions in the case of breach of responsibility. thus, it can be said that there are no sanctions at all provided by the investment law against nonperformance of environmental conservation responsibilities by investors, including the responsibility to prevent and mitigate forest and land fires in their working areas. environmental responsibility is also regulated in the law on limited liability companies. this law states that companies conducting business in the field of or related to natural resources are obliged to implement social and environmental responsibility. social and environmental responsibility is the company's commitment to participate in sustainable economic development. non-implementation of this obligation may be subject to sanctions in accordance with the provisions of laws and regulations in the field of business. the problem is that there is no sectoral regulation on natural resources that formulates sanctions for non-implementation of social and environmental responsibility. several studies have concluded that law enforcement using sectoral laws in the field of natural resources has not provided a deterrent effect for corporations that commit land burning. in the case of burning by transnational corporations, international and transnational legal instruments are also not sufficient to support the implementation of this environmental responsibility. social and environmental responsibility also needs to be distinguished from the responsibility to protect and preserve the environment. (toppinen et al., 2015) social and environmental responsibility in the limited corporate law is more of a required commitment. meanwhile, the responsibility required here is more than just a commitment but a legal responsibility that implies the imposition of sanctions if ignored. this fact shows that investment law in indonesia still does not support sustainable development. green investment, which is now a global development goal, (ibragimov et al., 2019) (rizzello, 2022) does not appear to be accommodated in the investment law. and at the practical level, the company's willingness to comply with environmental responsibility is still low. (yani et al., 2019) (nyoman et al., 2020) local governments themselves are also still not optimally implementing green investment, as the framework for green development in the regions is still in line with national policies. (sulistio et al., 2019) aims to improve the investment ecosystem, also does not sufficiently strengthen law enforcement of environmentally sound investment. (santosa, volume 5, issue 2, december 2022: 205 – 215 weak investment law… | 211 2021) the amendment of the investment law in the job creation law does not change article 15, article 16 and article 34 paragraph (1) of the investment law. nonetheless, the job creation law tries to provide environmental disaster mitigation through the amendment of article 12 paragraph (2) of the investment law that regulates business fields that are closed to investment. initially, the closed business fields only included business fields related to weapons and war equipment. with the job creation law, it is added to the business of catching protected fish species, utilization or collection of coral and coral, as well as the chemical industry and the ozone layer depleting material industry. however, this norm becomes weakly enforced when the job creation law does not change the provisions of the investment law regarding sanctions. as stated earlier, the existing sanctions in the investment law are only administrative sanctions and they are also not related to violations of the investor's environmental responsibility. the drafters of the investment law and the job creation law may have taken the view that sanctions for environmental obligations and responsibilities could be embedded in other laws in the environment and natural resources sector. this has been the practice so far. on the one hand, there is progress in terms of law enforcement using environmental law instruments. however, on the other hand, when a multi-doors approach is also considered important to strengthen law enforcement, the existence of clear and firm sanctions in investment law instruments will be able to strengthen law enforcement, especially in the case of forest and land fires where many foreign investors operate.(thomas et al., 2018) absence of investment supervision in addition to not containing sanctions against violations of investors' responsibility to preserve the environment, the investment law also does not contain rules regarding government supervision of the implementation of investment activities. this law provides more facilities and incentives to investors rather than supervisory aspects. included in the incentives provided are those for investors who take good care of the environment (article 18 paragraph (3) letter g). the ministry of investment as an authorized agency in the field of investment should supervise investors, including foreign investors, so that they do not destroy the environment, such as forest and land burning. however, such supervision is not included in the scope of duties and functions of the ministry of investment, which is regulated by presidential regulation number 63 of 2021. this regulation states that the ministry of investment is tasked with organizing government affairs in the investment sector. the functions carried out include functions related to policy, coordination and synchronization, employee development, management of state property and internal supervision. there is no function that provides the basis for supervision of investors. this supervision may be carried out by sectoral ministries in accordance with the investment business field. however, if this aspect of supervision is also regulated in the investment law regime, it will strengthen the multidoor approach in cases of environmental damage and pollution, as discussed in sub-chapter b. volume 5, issue 2, december 2022: 205 – 215 212 | weak investment law… the aspect of supervision by the ministry of investment is needed considering that local government supervision is still not optimal. (sulistio et al., 2019) parliament itself wants supervision to be tightened by asking the government to tighten supervision in licensing and investment implementation. (utomo et al., 2022) in addition, several legal cases of forest and land fires are related to foreign investment. (juniar, 2021) one media outlet, for example, reported that in 2019 four companies suspected of forest and land fires were owned by foreign investors from malaysia and singapore. the four companies were found guilty of violating the environmental protection and management act for committing the crime of land clearing by burning. although they were deemed to have set aside funds to carry out rehabilitation efforts for environmental damage, the four companies were still charged with fines. the obligation of foreign investors to prevent and mitigate forest fires is regulated in the limited liability company law no. 40/2007. the limited liability company law states that companies carrying out business activities in the field of and/or related to natural resources are obliged to carry out social and environmental responsibilities. this responsibility is a reflection of the company's commitment to sustainable development. (renouard & ezvan, 2018) the social and environmental responsibility must be budgeted by the company and calculated as the company's cost. companies that do not carry out social and environmental responsibilities are subject to sanctions in accordance with the sanctions regulated by each regulation in the natural resources sector (article 74 of the pt law). social and environmental responsibility of course also applies to foreign investors because the requirement to do business in indonesia is to have an indonesian legal entity. thus, multinational and transnational companies have an obligation to protect the environment in order to improve the quality of life and a beneficial environment, both for the company itself and the local community, as well as society in general. unfortunately, the formulation of this obligation is not accompanied by a supervisory institution that checks whether the company has carried out its obligations in implementing social and environmental responsibility. conclusion this paper concludes that indonesian investment law is still unable to respond to the development of international investment law that promotes green investment, and has difficulties in strengthening the multi door approach in environmental law enforcement. this is because the indonesian investment law only regulates administrative sanctions on investors who do not fulfill their obligations, and does not specifically regulate sanctions against investors who commit forest fires. the inconsistency of the investment law is also evident from the absence of supervision by the ministry of investment on the obligations and responsibilities of foreign investors to preserve the environment. the job creation law, which aims to improve the investment ecosystem, does not strengthen legal sanctions on investors who do not carry out their environmental obligations and responsibilities. volume 5, issue 2, december 2022: 205 – 215 weak investment law… | 213 acknowledgment this article is a further development of an internal research report of a lecturer at the faculty of law, universitas pancasila. the author would like to thank the leadership of the faculty as well as the research and community service unit of the faculty of law, pancasila university of indonesia refference akhmaddhian, s., virigianti, r., & yuhandra, e. 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(2019). influence of industry type, profitability and size on corporate social responsibility reports isomorphism stage in indonesia. international research journal of management, it and social sciences, 6(4), 17–30. https://doi.org/10.21744/irjmis.v6n4.649 yusyanti, d. (2019). tindak pidana pembakaran hutan dan lahan oleh korporasi untuk membuka usaha perkebunan. jurnal penelitian hukum de jure, 19(4), 455–478. https://doi.org/10.30641/dejure.2019.v19.455-478 volume 6, issue 1, june 2023: 17 – 27 this work is licensed under a creative commons attribution 4.0 international license. sociology of law perspectives on security, population, and local wisdom issues syamsuddin pasamai,1 aan aswari.ω,2 1 universitas bandar lampung, indonesia 2 universitas muslim indonesia, indonesia ωe-mail correspondence: aanaswari@umi.ac.id abstract this study aims to provide an overview of governance that always links the interests of society and the state based on the values of the sociology of law. therefore, state administrators always pay attention to issues of security, population, and local wisdom on a country basis. the conceptual study presents this manuscript as an effort to understand how law is developed and changed along with social and cultural changes. this article explains the basic argument that pancasila is still the guardian in the development of law, and it is also proven that there is a development of law which has a tendency and begins to show detachment from pancasila values, but in its journey efforts are made to adapt it to pancasila values in order to reduce the symptoms. social conflict. thus concluding that security, population, and local wisdom are part of influencing the quantity, quality, mobility, and administration of population. keywords: security; population; local wisdom; date of submission: november 11, 2022 date of publication: february 28, 2023 doi: http://dx.doi.org/10.56087/substantivejustice.v6i1.215 introduction according to the concept of legal sociology, that change can occur because the rate of population growth and development is very fast and uncontrolled. (halim, 2015) (hidayat, 2013) (dimitrova-grajzl et al., 2014) (akerboom & craig, 2022) fort united nations congress on the prevention of crime and the treatment of offenders that the impact of such changes is considered a potential criminogenic, meaning that crime can occur anywhere. therefore, any changes due to the population explosion must be accompanied by the provision of sufficient land and employment so as not to cause social problems and, in the end, can become one of the causes of imbalances in society. sociologically, any imbalance in society will disrupt order and security, and this phenomenon occurs due to aspects of urbanization, industrialization, population growth, population movement, social mobility, and technological change. (kamal, 2022) these social problems do not need to be allowed to develop without any effort to anticipate them. however, https://creativecommons.org/licenses/by-sa/4.0/ mailto:aanaswari@umi.ac.id http://dx.doi.org/10.56087/substantivejustice.v6i1.215 volume 6, issue 1, june 2023: 17 – 27 18 | sociology of law perspectives… ideally, a solution must be immediately sought to solve the problem to realize security and public order. based on empirical data, it is known that in the past, every social problem that had the potential to disturb order and security was usually resolved through empowering local wisdom, such as deliberations and consensus. (kawamura, 2013) (tan, 2015) (tamma & duile, 2020). however, with the development of science, technology, and informatics, it turns out that local wisdom has begun to shift and has naturally been replaced by culture from outside. as a result, there are frequent cases of vigilante (eigenrichting) as an option in the context of solving the problem. whereas in formal juridical terms, eigenrichting is a form of unlawful activity, and the perpetrators can be punished. (a & mahfud, 2018) (efendi, 2020) the reality of law enforcement, is it possible that culture from outside, which is adopted through various mass and electronic media (television and internet), can solve social problems in trying to create security and peace in the midst of indonesian society? is it true that indonesian law, which is reduced from local wisdom, is no longer able to solve social problems? then how can these two social phenomena be answered through the application of legal sociology theories. as a legal sociology concept, theoretically, it can be said that the existence of a sociology of law will study law in terms of its visible reality, especially regarding laws that are carried out on a daily basis. at least legal sociology will study the reciprocal relationship between law and other social phenomena. or in other words, legal sociology will study the legal symptoms of a society concerned whose scope includes social structures (social groups, culture, social institutions, social stratification, power, and authority) and social processes. in fact, many theories of the sociology of law can be used to analyze legal phenomena that occur in society in order to be able to provide as many conditions as possible so that the law can apply effectively and efficiently. this is intended so that through the application of legal, sociological theories, it can at least explain the social aspects of law and vice versa, as well as try to predict legal problems that will arise in the future. in indonesia, it is quite ideal if the application of legal sociology theories to social problems, always refers to local wisdom in the form of the philosophical values of the indonesian nation as contained in the iv paragraph of the preamble of the 1945 constitution, namely; belief in one almighty god, just and civilized humanity, indonesian unity, and democracy led by wisdom in deliberations/representations, and by realizing social justice for all indonesian people. local wisdom which has been transformed into the philosophical values of the five precepts of pancasila, (dwi anggono, 2016) has been further elaborated in the constitution (1945 constitution) as the basic law in the life of the society of nation and state. (akbar, 2021) (adji & budi, 2022) it is this basic law that should animate every regulation and legislation produced by the government. however, there is often overlap and at the same time negates sectoral egoism. volume 6, issue 1, june 2023: 17 – 27 sociology of law perspectives… | 19 analysis and discussion the security issue is not solely an obligation of the state, because the state constitution has emphasized, “every citizen has the right and obligation to participate in maintaining the defense and security of the state.” furthermore, if state security is viewed from the perspective of state functions, especially from the perspective of legal sociology, then the state security function can be classified into; the national defense function is the duty and responsibility of the indonesian army, while the national police is the developer of internal security tasks. the policy of separating the two functions of state security is a reflection of the spirit of reform in all fields, including within the scope of the armed forces of the republic of indonesia (abri). the idea of the new order, which was hidden behind the concept of the dual function of abri as a militaristic and political force, apparently left the impression that there had been an abuse of authority and power. it is said to be an aberration, because the law no longer occupies the top of the pyramid or as commander in chief, and individualism is increasingly entrenched. the abuse of authority and power by the armed forces can affect security and create a sense of fear in society. this can cause the law to no longer be recognized as the supremacy of law and not accepted as the highest authority. the abuse of authority and power by the armed forces can create doubts and distrust of the legal system and government, which in turn can exacerbate the security situation. therefore, the government needs to take action to ensure that the armed forces do not abuse their power and to restore the rule of law as the supreme authority. (rini et al., 2022) the story above has become a socio-juridical reason for people's representatives in parliament to be more proactive in removing indonesian police from abri as a civilian force. this policy is done by setting tap mpr republic of indonesia number vi/mpr/2000 concerning the separation of the indonesian army and indonesian police, and tap mpr republic of indonesia number vii/mpr/2000 concerning the role of the indonesian army and indonesian police. the second follow-up was to tap mpr republic of indonesia so that the law was enacted. law number 34 of 2000 concerning the indonesian national armed forces (indonesian army), and law number 2 of 2002 concerning the indonesian national police, and it should be understood that the two institutions indonesian army and indonesian police are each given authority in the field of state security. (leni, 2013) according to the concept of sociology of law, the existence of the indonesian army and indonesian police as symbols of the state apparatus who are prosecuted must try to establish cooperation, because both are authorized by law to maintain national security, which involves the process whereby persons consider in simple terms the social relationships and other phenomena arising from their interaction. (burkitt, 2015) the importance of social interaction between the indonesian army and indonesian police in the context of protecting every member of society is solely aimed at realizing security and public peace. then for the realization of legal volume 6, issue 1, june 2023: 17 – 27 20 | sociology of law perspectives… certainty, the cooperation between the indonesian army and indonesian police as state apparatus should be stated in the form of regulations. it is important to have regulatory authority in the security sector in the form of laws and regulations so that the limits of authority of the two institutions concerned become clear. in addition, it is expected that the authority granted by law appears in reality, cause entitled law without sanctions is correct, that is that system of manipulable symbols that functions as a representation, as a model of social structure. (epstein, 2014) the existence of these two institutions, both the indonesian army and indonesian police, are instruments of the state that are both involved in the realm of national security, but if we go further from the legal basis, then there is a principal difference between the indonesian army and indonesian police in viewing state security. even though it is realized that the army and indonesian police, both are an integral part of the government (in the narrow sense) or the executive which is under the tactical leadership of the president. a juridical sociological consideration contained in the preamble of the law number 34 of 2004 concerning the indonesian national armed forces, it is explained that the notion of national defense is all efforts to uphold state sovereignty, defend the territorial integrity of the unitary republic of indonesia, and the safety of the entire nation from armed threats to the integrity of the nation and state. then the army as a tool of the state in the field of defense in carrying out its duties is based on state policies and political decisions. furthermore, it is explained through the function of the army as a defense tool that expands the task of restoring the state's security conditions that have been disrupted due to security disturbances, whether due to war, rebellion, communal conflict, riots, terrorism, and natural disasters. the function of the indonesian army is generally carried out by a force of arms as a professional military as the organizer of national defense in terms of strategic definition, such as operations to crush armed groups in papua, security for indonesia's outer islands, the release of indonesian-flagged ships taken hostage by somalia rebels, and guarding around the national borders. in this regard, it is only natural and proper for the indonesian army to view security as an abstract value, and to focus on maintaining the independence and sovereignty of the state. while the dimension used must indeed be a militaristic dimension considering the threats that come, namely disturbances due to war, rebellion, communal conflict, riots, terrorism, and natural disasters. with such a function of the indonesian army, it means that the indonesian army is no longer involved and/or involved in practical political activities as it was during the new order era. therefore, the professionalism of the indonesian army as a tool and state apparatus is required to maintain the security and integrity of the state from all possible disturbances from outside. likewise, the sociological juridical considerations contained in the preamble to law number 2 of 2002 concerning the indonesian national police clearly emphasized that the maintenance of volume 6, issue 1, june 2023: 17 – 27 sociology of law perspectives… | 21 domestic security is carried out through the implementation of the police function. meanwhile, regarding domestic security from the optics of legal sociology, it is the embodiment of the internal security of a country like indonesia, towards all its people. the meaning of domestic security has been clarified in the formulation of article 1 paragraph (6) of the law number 2 of 2002, that what is meant by domestic security is a condition characterized by the occurrence of security and public order, order and upholding of the law, as well as the implementation of protection, protection, and service to the community. observing the formulation of article 1 paragraph (6) of law number 2 of 2002, it turns out that the realization of domestic security is in line with the functions of the national police contained in article 2 of law number 2 of 2002, that; the function of the police is one of the functions of the state government in the field of maintaining public order and security, law enforcement, protection, protection and service to the community. while its application and implementation must always pay attention to the spirit of upholding human rights, law, and justice. in this regard, it is determined that there are 3 (three) main tasks of the national police: (daryn & iskandar, 2018) 1) maintain public order and security; 2) upholding the law; and 3) provide protection, shelter, and service to the community. among the three main tasks of the national police, one of them is oriented toward security and public order. the notion of security and public order itself refers to the legal spirit of law number 2 of 2002, so it is natural and appropriate if public security and order are interpreted as a dynamic condition of society as one of the prerequisites for the implementation of the national development process in the framework of achieving national goals which are characterized by guaranteed security, order and upholding of law and fostering peace. observing from the optics of the sociology of law the three main tasks of the police concerning several cases that are spreading in the regions, according to the conception of legal sociology that can only be implemented as it should be if the composition of the three main tasks of the police is not seen as a priority arrangement that must be carried out in trying to realize security and order in the country. this is understandably important because the three main tasks of the police are equally important. furthermore, security disturbances in the sense of refers to all forms of law violations and other forms of disturbance that disturb the community. for example; brawls between students that occurred in several big cities, fights between groups or tribes that occurred in papua, land disputes in east lampung over land disputes, there was resistance from two indigenous groups, and migrants from java claiming control over land. (siradjuddin, 2015) regarding the examples of the cases above, it is only natural and proper that the security function carried out by the national police is more oriented towards efforts to promote the public welfare by using economic non-strategic dimensions. it means security here focuses on safeguarding economic resources volume 6, issue 1, june 2023: 17 – 27 22 | sociology of law perspectives… and non-military aspects of state functions. thus, the state requires a form of service to all its citizens and/or people utilizing law enforcement efforts and all laws and regulations that regulate, bind, and provide sanctions to anyone who violates the law together with other legal institutions and joins the criminal justice system. population around 2012 the national defense institute republic of indonesia published the definition of national resilience, as the dynamic condition of the indonesian nation which includes all aspects of integrated national life and contains tenacity and toughness that contains the ability to develop national strength. in facing and overcoming all challenges, threats, and disturbances that come from abroad or from within the country to guarantee the identity, integrity, and survival of the nation and state in achieving national goals. (mulyono, 2017) condition of the national life must be realized and fostered continuously as well as synergy starting from the individual, family, environment, and national capital with tenacity and toughness which contains the capacity for national development. personal and family elements are an integral part of the community or population. while the environmental and national elements are an integral part of the territory of the republic of indonesia. these two elements, capitalized on tenacity and toughness, are oriented toward the ability to develop national power. regarding the description above as a concept means a concept of developing potential in the form of national strength through the regulation and implementation of balanced, harmonious and harmonious welfare and security in all aspects of life in society as a whole and comprehensively and integrated based on pancasila, the 1945 constitution, even the archipelagic outlook. (yahaya et al., 2017; yuniarto, 2014) in the previous section, it was stated that some local wisdom has been introduced into philosophical values in the form of the precepts of pancasila. while the five precepts of pancasila, have been translated into the state constitution (1945 constitution). then it is concretized into the concept of archipelagic insight. all of these are expected to be fully and thoroughly integrated into potential strengths for the realization of national resilience. the existence of tannas as a concept is a psycho-analysis to solve every problem through an approach to 8 (eight) aspects of national life called astagatra, consisting of (a) geography; (b) demographics; (c) natural resources; (d) ideology; (e) political; (f) economics; (g) sociocultural; and (h) security defense. the first three aspects (a, b, and c) are natural, usually called trigatra. while the next five aspects (d, e, f, g, and h) are social and are better known as pancagatra. demography or population as an integral part of trigatra, has a very important role in forming national resilience. the reason is that the population is one of the main prerequisites for the formation of a country. the conditions for the formation of a state are, territory, government, legislation, and population, (neno, 2018) regarding the requirements of the population or the people in society, that the people are people who are governed so the state needs to improve its welfare. (putra, 2021) the existence of the population here should be understood as the people of the country, then it is volume 6, issue 1, june 2023: 17 – 27 sociology of law perspectives… | 23 these people who need to improve their welfare and prosperity. in addition, the state continues to strive for the existence of the indonesian people to gain recognition in international relations, so the essence of the state can indeed be assumed as a social building of known as gesellschaftliche gebilde, and at the same time as a legal institution (rechtliche institution). (warjiyati et al., 2022) the indonesian people need to intelligently and carefully pay attention to population issues as an integral part of the context of increasing national resilience to realize national aspirations. aspects of the intended position, include; a. quantity (amount, structure, composition, and growth rate). b. quality (education, health, income, and purchasing power). c. mobility (migration and distribution). d. population administration. then to try to increase national resilience in terms of population aspects, it is only natural and appropriate if there is a need for appropriate policies, strategies, and other efforts related to issues of quantity, quality, mobility, and administration of indonesia's population. but until now it turns out that population development in indonesia is still faced with various obstacles which in the end become problems during society. (lele, 2019; walker, 2016) furthermore, in terms of quality, literature data was obtained showing that the number and growth of indonesia's population can be said to be worrying. why is that?, because the threat of population explosion cannot be ignored. therefore, there are several reasons for concern that can be used as arguments to place the population problem as a development priority. (grabowski & self, 2020) indonesia's population has doubled in just 40 years, and the rate of population growth in the 20002010 period increased compared to the 1990-2000 period. even though during the 1970s it seemed that the growth rate of indonesia's population had already shown a downward trend. if so, then a large population with a high growth rate will have an impact on the environmental carrying capacity and carrying capacity that is getting worse. agricultural and plantation lands had to be converted by the bearers into housing and office areas, causing a further decline in agricultural productivity. this can also affect the structure and composition of the population, which will be more visible when analyzing age groups, gender, occupation, ethnicity, income, and so on. still related to the quality of the population, it turns out that indonesia is still struggling to overcome various problems related to population. these efforts are more oriented toward the education of the population which is relatively low, the level of health of the population is poor, the infant and maternal mortality rates are relatively high, and the increasing number of people who are dependent on illegal drugs. (meijerink et al., 2014, 2015) the population problems above are still a very serious concern of the government. even though the measurement of world volume 6, issue 1, june 2023: 17 – 27 24 | sociology of law perspectives… development performance has shifted from development that focuses solely on economic growth performance to development that is oriented towards the quality of the population. real form; the current hdi has become a reference for achieving human development performance in 187 countries in the world, while in 2011 indonesia's hdi was ranked 124th. even though indonesia is the fourth most populous country in the world after china ranked 101st, india ranked 134th, and the united states ranked 4th. regarding the population phenomena above, it is not an exaggeration that from now on it must be carefully calculated for the next one to three decades so that the population is a quality indonesian human resource. for this purpose, it is necessary to have a gradual and sustainable population program by empowering local wisdom in the regions. local wisdom is an ancestral inheritance in the repertoire of life values that are integrated into the form of beliefs, culture, and customs. while in its development the community or population adapts to the environment by developing a pearl of wisdom in the form of knowledge or ideas, and equipment, combined with customary norms, cultural values, and activities to manage the environment to fulfill their daily needs for the realization of security and order. local wisdom can be understood as all forms of knowledge, belief, understanding, or insight as well as customs or ethics that guide human behavior in the life of an ecological community (human relations with the creator, human relations with fellow human beings, and human beings with their natural surroundings). states that all forms of local wisdom are internalized, practiced, taught, and passed down from generation to generation as well as forming patterns of human behavior towards fellow human beings. according to the analysis of the sociology of law, that wisdom means wisdom, and intelligence is something that is needed in interacting. while local means a place or in a place where something grows, exists, lives which may be different from other places, or exists somewhere, something of value which may apply locally or may also apply universally. in this regard, there is still a lot of local wisdom that continues to be a role model for people in indonesia, including in java (pranoto mongso, nyabuk gunung, considers a place sacred); in sulawesi (in the form of prohibitions, solicitations, sanctions) and in the inner baduy (great-grandfathers and pikukuh as well as the tenets of precepts). these local pearls of wisdom play a role in the management of natural resources and the environment. a clear picture of local wisdom in south sulawesi. in this area grows what is known as panngadereng (panngadakkang) built on a siri' foundation. while siri' is a legal principle (rechtsbeginsel) that underlies legal principles (rechtnormen). in the rechtnormen built the values of legal ethics (values of legal ethics) whose compliance value is based on legal awareness (legal awareness, in essence, is compliance with legal ethical values). it is further said that the bugismakassar people in the past realized that ade' (ada') was built to guard and maintain their siri' and their obedience will be ade' (ada'), in essence, is obedience and glorification of siri' which underlies the legal principles of ade' (ada'). the term legal ethical values (value of legal ethics) is volume 6, issue 1, june 2023: 17 – 27 sociology of law perspectives… | 25 almost unknown in legal textbooks (rechtswetenschap). however, in the textbook on introductory law books (encyclopaedie der rechtswetenschap, inleiding tot de rechts wetenschap), the term rechtsbeginsel (legal principle) is used which is a normative term (legal term) for the value of legal ethics. (buana, 2021) how much and how rich indonesia is, in terms of local wisdom can be explored again to be used as a reference in maintaining security and public order. however, as time goes by. gradually it turns out that the community's wisdom of being friendly with nature is starting to be eroded by technology and economic disparities. leading to encroachment and resulting in an imbalance in nature and finally giving birth to the human disaster itself. therefore, it is time to return to pursuing the future of the nation and state by improving the quality of the population through empowering local wisdom. conclusion in essence, local wisdom that exists and is still alive and spread in various regions from sabang to merauke is a legacy from our ancestors that needs to be explored and preserved again, to be further empowered as a legal norm in regulating the order of life of the community or population, nation, and state. patriotic the success of our ancestors in maintaining the balance (security and order) of society in interacting through the application of local wisdom, sociologically, law needs to be revived because it synergizes with the values of the nation's philosophy which are summarized in the five precepts of pancasila, and are in no way contradictory to the state constitution. reference a, r. a., & mahfud, m. 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(2014). “making connection”: indonesian migrant entrepreneurial strategies in taiwan. journal of identity and migration studies, 8(1), 95–119. volume 6, issue 1, june 2023: 71 – 82 this work is licensed under a creative commons attribution 4.0 international license. unincorporated merchant: how does the law protect consumers in electronic commerce? andika prawira buana1ω, rashid ating2, tri abriana ma’ruf 3 1,3faculty of law, universitas muslim indonesia, indonesia 2institute of advanced studies (ias), university malaya, kuala lumpur, malaysia ωemail correspondence: andika.prawira@umi.ac.id abstract currently, electronic commerce (e-commerce) is a platform that allows merchants and consumers to easily conduct online transactions. nonetheless, there are a lot of e-commerce business actors who do not yet have legal entity status. the purpose of this research is to discover and examine rules pertaining to e-commerce merchants who are not incorporated, as well as what portions of consumer legal protection are available to consumers. this doctrinal legal research uses statutory and conceptual approaches. the results of the study show that regulatory provisions for ecommerce business actors who are required to be legal entities (incorporated) have been contained in regulations issued by the minister of trade, while e-commerce business actors who are not legal entities are regulated in various regulations such as the law on electronic information and transactions, the consumer protection act, and the trade quiet act. however, the regulation does not explicitly contain e-commerce obligations for legal entities. in fact, the legality of business actors is highly recommended because it guarantees legal protection for consumers if they experience losses in the future. in addition, it is also a potential source of income for countries with tax schemes. based on this, it is suggested that the government immediately draw up specific regulations so that every e-commerce business actor is not given any other choice but to have a legal entity. it is also necessary to stipulate strict sanctions against unincorporated business actors and result in losses to consumers. keywords: merchant; e-commerce; incorporated bussiness; date of submission: march 13, 2023 date of publication: june 29, 2023 doi: http://dx.doi.org/10.56087/substantivejustice.v6i1.238 introduction the digital era's technology is continuously evolving and affecting numerous aspects of life. currently, technology plays an increasingly vital part in our daily routines because it makes everything more efficient, easier, and more affordable in the fingertips of our hands. the internet is an example of technological advancements that are currently being used as a means of economic transactions known as e-commerce. https://creativecommons.org/licenses/by-sa/4.0/ mailto:andika.prawira@umi.ac.id http://dx.doi.org/10.56087/substantivejustice.v6i1.238 volume 6, issue 1, june 2023: 71 – 82 72 | unincorporate merchant: how does… e-commerce is an environment or platform for shopping online and is currently a very promising alternative business. according to the financial services authority (ojk), 88.1 percent of internet users in indonesia have utilized e-commerce services to purchase a variety of products. in this case, electronic trade or e-commerce is also supported by trade law number 7 of 2014. e-commerce provisions in trade law number 7 of 2014 provide understanding, protection, and certainty for electronic business actors and consumers while conducting these business activities via electronic systems. (desy et al., 2017) electronic transactions are also buying and selling transactions that involve an agreement. however, the parties' e-commerce agreements are not like other agreements because electronic transactions differ from conventional transactions. in this context, electronic transactions are governed by law number 19 of 2016 concerning amendments to law number 11 of 2008 concerning information and electronic transactions, which regulates all electronic transactions and ensures that business actors do not violate the law in their day-to-day activities and transactions. (sulastri et al., 2021; widyanto, 2021) business activities are closely related to the type of corporate entity and the permits required to operate it. because legal entities can provide certainty in business activities, so that worries of breaking the law are minimized, the existence of a business legal entity will protect the company from all claims arising from the activities it performs, and keeping in mind that business legal entities have signs that must be obeyed. the company will satisfy the obligations and interests of numerous parties associated to the company, both inside and outside the company, by establishing a legal entity. however, the prerequisites for establishing a corporate legal entity must be met. this is in accordance with law number 40 of 2007 on limited liability companies, which states that it must be a capital partnership founded on an agreement, conduct business activities, and be formed through a legal process requiring government permission. (anjani & santoso, 2018) for a rule of law nation, as being declared in article 1 paragraph 3 of the republic of indonesia's 1945 constitution, indonesia unquestionably requires regulations as an indicator of certainty in the law. legal certainty represents one of the aims of the law and can be described as an attempt to attain justice. according to gustav radbruch, the form of legal certainty is when the regulation has been passed and stipulated, and the implementation must adhere to the norms and theory. when customers purchase goods or services from merchants that are not legal companies, it will be difficult to file complaints if the purchase has issues. including who will be sued or held accountable in the event of a consumer dispute. (moha et al., 2020) on that basis, the purpose of this essay is to examine how the law governs the status of merchants as legal entities and what legal protection can be provided for consumers in the field of e-commerce. volume 6, issue 1, june 2023: 71 – 82 unincorporate merchant: how does… | 73 method this type of research is a type of doctrinal legal research, namely legal research conducted by researching library materials using the object of writing study in the form of existing literature, both in the form of journals, books, relevant articles and laws and regulations that have a correlation with the discussion of the problem, so that this writing is also literature writing (library research). the following types and sources of legal resources were employed in the research: primary legal materials, secondary legal materials, and tertiary legal materials. reading, studying, taking notes, evaluating literature, and looking through other media that is related to the research subject are the legal material gathering techniques used in this research. the analysis utilized in this study is analytical prescriptive, which means that it is based on the author's reasoning that is relevant to the data and then presents a problem-solving solution. analysis and discussion a. regulation of unincorporated business actors in e-commerce electronic commerce is one example of internet technology development, and itself is defined as a business activity that uses electronic technology to connect enterprises, consumers, and society through electronic transactions. (ramli et al., 2023) the legal framework for e-commerce in indonesia is clearly specified in trade law number 7 of 2014. prior to the law, e-commerce rules depended solely on law number 19 of 2016 amendments to law number 11 of 2008 concerning information and electronic transactions. the goal of trade law is to offer certainty and comprehension in the context of e-commerce, business actors, and consumers who conduct trading activities via electronic platforms. these restrictions, however, have not reached consumer protection, taxation, national borders and laws, electronic contracts and security guarantees, electronic payments, and dispute resolution. there are currently new rules regarding trade through the electronic system that are regulated in the minister of communication and informatics regulation number 5 of 2020 concerning electronic system operators for private scope, as well as regulations for permitting business actors through the electronic system that are regulated in the minister of trade regulation number 50 of 2020 concerning provisions for business licensing, advertising, guidance, and supervision of businesses. e-commerce has become much more sophisticated, consumers face additional dangers when transacting through electronic networks, such as data theft, online fraud, delivery of faulty or incorrect goods, and deceptive promotion of goods, many factors point to the conclusion that consumer rights in indonesia remain vulnerable to e-commerce activity. (arifin et al., 2021; prastyanti et al., 2022) volume 6, issue 1, june 2023: 71 – 82 74 | unincorporate merchant: how does… the national consumer protection agency (bpkn) reported receiving 1,176 consumer complaints in 2020. the trading industry experienced the greatest increase in complaints via the computerized system, with 299 complaints. the government's policy for providing legal protection to parties involved in electronic transactions, (haganta, 2020) namely consumers and business actors, is currently listed in consumer protection law number 8 of 1999, but this law is still difficult to reach trading activities through electronic systems. consumers encounter challenges in e-commerce because of lax law enforcement, which leaves them completely unprotected by the law. any individual or business entity, whether in the form of a legal entity or not, that is established and domiciled or carries out activities within the jurisdiction of the republic of indonesia, either individually or jointly through agreements to carry out business activities in various economic fields, is defined as a business actor in article 1 point 3 of law number 8 of 1999 concerning consumer protection. the laws regulating business actor licensing are outlined in article 24 paragraph (1) of trade law no. 7 of 2014, which states that "business actors conducting trading business activities are required to have a permit in the trade sector granted by the minister." regarding business licensing for e-commerce activities, it is governed by article 15 paragraph (1) of government regulation number 80 of 2019, namely "businesses are required to have a business license in carrying out business activities in trading through electronic systems." furthermore, the minister of communication and informatics regulation no. 5 of 2020 concerning private electronic system operators emphasizes that registration is required for all electronic system operators. the regulation of the minister of trade number 50 of 2020 concerning provisions for business licensing, advertising, guidance, and supervision of business actors in trading through the electronic system states that "business actors are required to have a business permit in carrying out pmse business activities" specifically in article 3 paragraph (1). in this case, a business actor is any individual or business entity, whether a legal entity or not, that performs business activities in the field of trading through electronic systems and can be both domestic and foreign. in this article, business licensing takes the form of a trade business license obtained through an electronic system. article 1 paragraph (4) makes it clear that business actors dealing through the electronic system, including legal and nonlegal companies, must hold a trading business license. limited liability companies (pt), for example, are legal business entities. in law number 40 of 2007, concerning limited liability companies, a company is defined as a legal material that is a partnership of capital, established based on an agreement, conducting business activities with authorized capital that is entirely divided into shares and meets the requirements stipulated in the law and its implementing regulations. volume 6, issue 1, june 2023: 71 – 82 unincorporate merchant: how does… | 75 the limited liability company has its own assets, which are distinct from the assets of the limited liability company's shareholders. in the sense that if the limited liability company incurs a loss, the shareholders' liability is limited to the value of the shares they possess. in contrast to non-legal companies such as commanditaire venootschap (cv) or limited partnerships and firms, the assets of the founders are not distinct from the assets of the business entity. as a result, if the business entity that is not a legal entity suffers a loss, the owner of the business entity will be held liable. in addition, the difference between a business entity that is a legal entity and a business entity that is not a legal entity is: 1. legal entitiy (incorporated bussines) a) the legal subject is the business entity itself (acting as human), which categorized as legal subjects before the law; b) company assets are separate from the personal assets of its management or members. if the company goes bankrupt, only the company's assets will be confiscated and does not include the personal assets of its management or members; c) examples of legal entities are limited liability companies, cooperatives and foundations. 2. non-legal entity (unincorporated business) a) the legal subjects are the people who become its management. the company is not the legal entity itself and can’t act on its own behalf. b) the company's assets are united with the personal assets of its management or members. as a result, if the company goes bankrupt, the assets of the management and members are also confiscated. c) examples of business entities that are not legal entities are commanditaire venootschap (cv) or limited partnerships and firms. seeing the distinction between business entities that are legal entities (incorporated) and those that are not legal entities (unincorporated) above implies that forming a limited liability company (pt) for e-commerce activities is safer than other types of business companies. this is based on the provisions of article 3 paragraph 1 of law number 40 of 2007 concerning limited liability companies, which state that the shareholders of the company are not personally liable for the company's engagements and are not liable for the company's losses in excess of the shares owned. forming a corporate entity is an important first step in starting a business. business entities that are legal entities will safeguard the company from any claims arising from the company's operations. furthermore, with a legal corporation, business actors can safeguard volume 6, issue 1, june 2023: 71 – 82 76 | unincorporate merchant: how does… the public from potentially unsafe items, give complaint services when orders received by consumers are in issue, comply with indonesian laws, and be taxed. (saefudin, 2014) having this element of legality indicates that the business actor has complied with the applicable legal rules, which indirectly shows disciplined action, and if the business actor is a legal entity, it is also a means of legal protection, because establishing a business entity requires a permit. this has the consequence of generating a sense of security and comfort for both business actors and business consumers. however, many bussiness actor such as merchants have yet to establish incorporated bussines or legal entity, one of the reasons being that they consider their operations to be small-scale and want to avoid paying taxes. because business actors in e-commerce include merchants who provide services using an electronic system, e-commerce business actors are included in the category that is required to register and hold a trading business license through the electronic system. registration of business actors for trading business licenses through this electronic system is a form of legal certainty that will clarify responsibilities for business actors, as well as a place to receive reports and complaints from the public as consumers. with the registration of this business license, (mucharomah, 2023) it can be a step to prevent problems such as online fraud because the public and consumers can identify business actors through website that have been provided by the government. business actors must get a business license and a trade business license using the electronic system (siupmse). the business license, on the other hand, does not apply to intermediary facility operators, which are business actors who supply electronic communication facilities other than telecommunications operators and only act as mediators in electronic communications between senders and recipients, if they are: 1. not a party that does not directly benefit from transactions; 2. 2. not directly involved in the contractual relationship of the parties conducting pmse. to obtain a business license to conduct trade electronically, business actors can apply to the minister of trade via the online single submission (oss) agency. the trading business license obtained through the electronic system is only valid if the following commitments are met: 1. electronic system operator registration certificate issued by the competent authority no later than 14 working days after the electronic system trading business license is issued; 2. website address and or application name; 3. customer complaint services in the form of a contact number and/or email address that can be contacted and responded to and displayed clearly on a page that is easy for consumers to read; volume 6, issue 1, june 2023: 71 – 82 unincorporate merchant: how does… | 77 4. a consumer complaint service that contains contact information for consumer complaints from the directorate general of consumer protection and commerce. this registration can be done online and is free of charge. however, data from the ministry of communication and informatics noted that only 2698 business actors operating electronic systems were registered in the electronic system, while e-commerce business actors in indonesia, according to data from the indonesian central bureau of statistics, reached 26.6 million units. (putri & dwijayanthi, 2022; rongiyati, 2019) this means that the implementation of this electronic system registration has not been fully complied with by business actors; in fact, business actors who have registered will benefit from being recorded on the electronic system operators registration certificate so that they can be clearly identified on the service page of the ministry of communication and informatics and receive protection as well as legal certainty for parties involved in electronic commerce. with many e-commerce business actors in indonesia not registering themselves with business licenses, it is difficult for the government to be able to control business through the electronic system. this trading business license through the electronic system, abbreviated as siupmse, is very essential; if a merchant is not in possession of it, he or she will be subject to administrative sanctions in the form of written warnings, which can be given three times with a grace period of up to 14 (fourteen) calendar days between each warning, and if you still do not have a trade business license through the electronic system within this period, you will be subject to administrative sanctions in the form of fines. one of the causes for the low number of e-commerce business actors enrolling for business licenses in indonesia is a lack of socialization regarding the necessity to register and hold business licenses for e-commerce business actors, both legal and non-legal businesses. furthermore, the government's explanation of the aim and purpose of these regulations is not widely understood, therefore many business players are unaware of the requirements requiring trading business licenses through the electronic system. b. consumer legal protection against unincorporated merchant in e-commerce the rapid development of the internet has influenced the growth of e-commerce or electronic business. the emergence of e-commerce in indonesia might spoil consumers because they can buy without leaving their homes and have access to a diverse range of goods and services. this is also a business opportunity that can benefit entrepreneurs. however, many business players continue to disregard the quality of the goods or services they provide, resulting in losses for the consumers themselves. business actors must obtain an e-commerce business license, which is governed by government regulation number 80 of 2019 concerning trade through electronic systems and minister of communication and informatics regulation number 5 of 2020 concerning volume 6, issue 1, june 2023: 71 – 82 78 | unincorporate merchant: how does… private electronic system operators. if you do not register, you will receive a letter of warning and may be blocked by the ministry of communication and informatics, as reported by detik.com. the ministry of communication and informatics has sent a letter of warning to paypal, steam, epic games, and yahoo to register as pse scope private as soon as possible. however, paypal cs never registers until the deadline of five working days, and the ministry imposes a blocking sanction. since being prohibited for the first time, indonesian netizens immediately exploded and the ministry of communication and informatics' blocking of pse has been widely discussed. the ministry has finally unblocked paypal, but only for the time being. the financial transaction service is available for five days till paypal registers. paypal claimed in its statement that it is dedicated to following the guidelines and has been registered as a private scope pse. they apologized to users who had been inconvenienced by the blocking issue. the lack of clear sanctions for e-commerce business actors who do not register, as well as the mechanism and standardization for e-commerce businesses that are required to do so, is currently causing the problem of non-compliance by e-commerce business actors regarding the registration of electronic system operators. there are still numerous business actors who are not legal businesses and cause a variety of difficulties, such as online fraud and the leakage of consumer personal data. as stated in the research's background, there are numerous merchants both inside and outside the country who are not legal entities but are nevertheless actively supplying various kinds of goods and or services that can cause problems. the ministry of trade said that between january and june 2021, 4,855 consumers filed complaints, primarily in the electronics sector, while statistics from kominfo revealed 115,756 occurrences of fraud from e-commerce and online transactions on social media through september 2021. in the indonesian civil code, e-commerce transactions are categorized as sale and buy agreements, therefore e-commerce transactions can also give rise to an achievement or an obligation for a party to execute things that are in an agreement. default occurs when one party fails to carry out these accomplishments or commitments. some examples of ecommerce defaults committed by a business actor are as follows: 1. failure to do what he is committed to do, which is a circumstance in which the seller fails to meet the commitment to deliver an item offered to the buyer as well as the obligation to bear hidden deficiencies; 2. 2. carry out what was promised but not according to the agreed specifications, where the business actor provides services or is responsible for obligations but does not comply with what was promised or promoted at the beginning before the transaction; volume 6, issue 1, june 2023: 71 – 82 unincorporate merchant: how does… | 79 3. carry out what was promised but it was late; if the order arrived late but could be used, it is labeled as a late achievement; if it could not be used, it is defined as not carrying out what was promised; 4. when a business actor does something that, according to the agreement, cannot be done, such as when the business actor is required not to disclose information and personal data about the buyer to the general public but does so, the action is described as a default. transactions through electronic means are regulated in law number 19 of 2016 on amendments to law number 11 of 2008 concerning information and electronic transactions. article 28 paragraph (1), which reads: "every person intentionally and without right spreads false and misleading news that results in consumer losses in electronic transactions," with a criminal threat in article 45a paragraph (1), namely a maximum criminal prison of six (six) years or a maximum fine of idr 1,000,000,000 (one billion rupiah). in addition to law number 19 of 2016, government actions to provide legal protection for the public are also regulated in law number 8 of 1999 concerning consumer protection, law number 7 of 2016 2014 concerning trade and government regulation number 80 of 2019 concerning trade through electronic systems. the concept of accountability in e-commerce transactions also applies to corporate actors in law number 8 of 1999 concerning consumer protection, which is governed in articles 19 to 28. business actors must be held accountable for compensating consumers for losses incurred as a result of consuming goods and/or services traded, including compensation in the form of replacement goods or refunds. rules regarding electronic trading are also contained in law number 7 of 2014 concerning trading. if the business actor violates the regulations in article 65, paragraph (1), which reads: "every business actor who trades goods and/or services using an electronic system must provide complete and correct data and/or information," and also in paragraph (2), which reads: "every business actor is prohibited from trading goods and/or services using an electronic system that is inconsistent with the data or information as referred to in paragraph (1)." for data and/or information that must be provided, at least include: 1. identity and legality of business actors as producers or distribution business actors; 2. the technical requirements of the goods offered; 3. technical requirements or qualifications for services offered; 4. prices and methods of payment for goods and/or services; and 5. how to deliver the goods. if a merchant that trades goods on an electronic system fails to give complete and clear information, the business actor may face administrative sanctions in the form of license volume 6, issue 1, june 2023: 71 – 82 80 | unincorporate merchant: how does… revocation under article 65 paragraph (6) of law number 7 of 2014 concerning trade. this policy is critical for ensuring legal clarity in the operation of an e-commerce business for both business actors and customers. so that no merchant may conduct business while ignoring consumer protection. the objective of regulating consumer protection laws is to increase consumer dignity and awareness, as well as to encourage a sense of responsibility for business actors when carrying out their business activities, because basically every citizen has the right to legal protection, one of which is consumer protection, and consumer rights are liability for manufacturers. consumer protection law no. 8 of 1999. the consumer protection act defines consumer protection as "all efforts that ensure legal certainty in order to provide protection to consumers." consumer protection is carried out to ensure that individuals do not purchase or use goods or services that may risk their safety, and so on. article 19 of law no. 8 of 1999 concerning consumer protection specifies the obligation of business actors who are not legal organizations if a default is identified. default is governed by book iii article 1234-1252 of the civil code, and it is defined as the failure to meet an achievement or obligation specified by the parties in an agreement. default compensation is compensation levied to debtors who fail to fulfill the terms of an agreement reached between creditors and debtors. article 1249 of the civil code specifies how to pay damages for default, with the restitution taking the form of a monetary payment. and. according to article 1365 of the indonesian civil code, any conduct that violates the law and causes harm to another person obligates the person who caused the loss due to his error to compensate for the loss. consumer issues in e-commerce become roadblocks to the introduction of electronic technologies in indonesia. consumers are not entirely protected by law due to societal issues such as online fraud, personal data leaks, and insufficient law enforcement in these circumstances. (yadi et al., 2022) to provide legal protection for the public, there are two legal protection principles: preventive legal protection, which is consumer protection for the public who is given the opportunity to submit their opinion before a government decision becomes final; and repressive legal protection, which is protection aimed at resolving disputes. (sommaliagustina, 2016) as an effort to prevent this, business actors should register their business entities so that they become legal entities or incorporated merchants, so that if problems arise, consumers can make complaints and be accounted for. unlike the platform model so far, incorporated merchants will be fairer to consumers and protect them. for repressive legal protection, the indonesian government, through the ministry of trade and the ministry of communication and information, must require e-commerce business actors to register. this registration aims to make it easier for the government to record and identify e-commerce volume 6, issue 1, june 2023: 71 – 82 unincorporate merchant: how does… | 81 actors that are regulated in government regulation number 80 of 2019 concerning trade through electronic systems and minister of communication and informatics regulation number 5 of 2020 concerning private electronic system operators. it is mandatory to register every electronic system operator. conclusion the regulatory provisions for e-commerce merchants who are required to be legal entities are not specifically established in the applicable laws and regulations. this results in a lack of legal certainty for customers and a loss of potential state revenue through taxes. concerning those relevant to consumer legal protection from e-commerce unincorporated businesses, it has essentially been regulated in numerous rules, but these arrangements are not specified in nature, so they continue to generate difficulties and confusion in their interpretation and implementation. based on this situation, the government should enact special rules for e-commerce trading, requiring them to have legal entities in order for merchants and consumers to have legal certainty and protection. in its development, the job creation law has regulated all sorts of legal business entities, notably individual corporations and sole proprietorships. this kind of business entity has the potential to be an alternative for msme e-commerce businesses to continue to run their businesses professionally and responsibly. regulations requiring the legal incorporation of ecommerce will also provide the state with potential revenue through a taxation mechanism. reference anjani, m. r., & santoso, b. (2018). urgensi rekonstruksi hukum e-commerce di indonesia. law reform, 14(1), 89–103. https://doi.org/10.14710/lr.v14i1.20239 arifin, r., kambuno, j. a., waspiah, w., & latifiani, d. (2021). protecting the consumer rights in the digital economic era: future challenges in indonesia. jambura law review, 3(0), 135–160. https://doi.org/10.33756/jlr.v3i0.9635 desy, a., setyawati, p., kantor, b., pidie, j. a., & majid, i. (2017). perlindungan bagi hak konsumen dan tanggung jawab pelaku usaha dalam perjanjian transaksi elektronik. syiah kuala law journal, 1(3), 46–64. https://doi.org/10.24815/sklj.v1i3.9638 haganta, r. (2020). legal protection of personal data as privacy rights of e-commerce consumers amid the covid-19 pandemic. lex scientia law review, 4(2), 77–90. https://doi.org/10.15294/lesrev.v4i2.40904 moha, m. r., sukarmi, s., & kosumadara, a. (2020). urgensi pendаftаrаn penyelenggаrа sistem elektronik bаgi pelаku usaha “ the urgency of electronic system registration for e commerce entrepreneurs .” jambura law review., 2(02), 101–119. https://doi.org/10.33756/jlr.v2i2.5280 mucharomah, n. l. (2023). complete guide to making trading business license (siup) want to volume 6, issue 1, june 2023: 71 – 82 82 | unincorporate merchant: how does… make a trading business permit but confused what to prepare? dailysocial.id. https://en.dailysocial.id/post/prosedur-pembuatan-surat-izin-usaha-perdagangan prastyanti, r. a., rahayu, i., yafi, e., wardiono, k., & budiono, a. (2022). law and personal data: offering strategies for consumer protection in new normal situation in indonesia. jurnal jurisprudence, 11(1), 82–99. https://doi.org/10.23917/jurisprudence.v11i1.14756 putri, y. h., & dwijayanthi, p. t. (2022). perlindungan hukum dalam transaksi melalui ecommerce di indonesia. in jural kertha negara (vol. 10, issue 5, pp. 482–496). ramli, t. s., ramli, a. m., mayana, r. f., ramadayanti, e., & fauzi, r. (2023). artificial intelligence as object of intellectual property in indonesian law. the journal of world intellectual property, n/a(n/a). https://doi.org/https://doi.org/10.1111/jwip.12264 rongiyati, s. (2019). pelindungan konsumen dalam transaksi dagang melalui sistem elektronik (consumer protection in e-commerce). negara hukum: membangun hukum untuk keadilan dan kesejahteraan, 10(1), 1–25. https://doi.org/10.22212/jnh.v10i1.1223 saefudin, s. (2014). perlindungan hak-hak konsumen e-commerce dalam perspektif hukum positif indonesia dan konvensi internasional. supremasi hukum: jurnal kajian ilmu hukum, 3(1), 63–84. https://doi.org/10.14421/sh.v3i1.1948 sommaliagustina, d. (2016). perlindungan hukum terhadap konsumen e-commerce di indonesia. jurnal equitable, 3(2), 47–58. sulastri, s., nuryanti, b. l., mulyadi, h., & fadhilla, f. (2021). pengaruh electronic commerce terhadap daya saing usaha umkm. journal of business management education (jbme), 6(3), 58–68. https://doi.org/10.17509/jbme.v6i3.41075 widyanto, m. a. (2021). problematika perlindungan konsumen dalam transaksi elektronik di indonesia. jurnal privat law, 9(1), 137–142. https://doi.org/10.20961/privat.v9i1.28930 yadi, d. k., sood, m., & martini, d. (2022). perlindungan hukum bagi para pihak dalam transaksi e-commerce menurut tata hukum indonesia. commerce law, 2(1 se-articles). https://doi.org/10.29303/commercelaw.v2i1.1368 |114 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures anti corruption attitude of students as a corruption measure of criminal measures yusrianto kadir faculty of law, universitas gorontalo email: yusrikadir@gmail.com abstract this study aims to explain the development of character in changing the legal behavior of students and integrative model of character building in the prevention of corruption. the theoretical approach is directed to two main approaches namely the integration of anticorruption values and the formation of environments that are not permissive to corruption. the method used through the positivist legal approach and sourced from primary, secondary, and tertiary legal materials. the result of the discussion shows character education should involve not only the aspects of good knowledge (moral knowing), but also feel good or loving good (moral feeling), and good behavior (moral action). the main components forming behavioral intentions are attitude toward behavior, subjective norms, control belief. the expected conclusion of student anti-corruption behavior targeted is the consistency of anti-corruption amid the reality of the external environment. consistency is expected to further increase into the courage of students to be the vanguard in inviting people to do zero-tolerance against acts of corruption. keywords: character building; anti corruption; prevention of corruption; introduction character is the nature that is brought by each individual, which each person has their own character. understanding more characters lead to the moral and personality of a person, of course, which is positive. the character of an individual is formed since he was small due to genetic and environmental influences. the process of character formation, whether consciously or unconsciously, will affect the way the individual views himself and his environment and will be reflected in his or her daily behavior. universities as institutions of higher education are one of the most important resources.1 the character is the values of human behavior related to god almighty, self, fellow human, environment, and nationality embodied in thoughts, attitudes, feelings, words, and deeds based on religious norms, law, etiquette, culture, and customs. so for students, it is very important to get character education, it aims to strengthen morals and praiseworthy nature for learners (in this case students). because intelligence in the field of education alone is not enough without the provision of moral and strong character. so 1fidyani fitri, https://fidyanifitri.wordpress.com/2012/07/02/pentingnya-pendidikan-karakter-dikalanganmahasiswa/ (diakses tanggal 7 juli 2017). https://creativecommons.org/licenses/by-sa/4.0/ https://fidyanifitri.wordpress.com/2012/07/02/pentingnya-pendidikan-karakter-dikalangan-mahasiswa/ https://fidyanifitri.wordpress.com/2012/07/02/pentingnya-pendidikan-karakter-dikalangan-mahasiswa/ |115 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures that when the student plunge in the community there will be no misuse of knowledge learned during school. as we see today, where smart people abuse their cleverness to commit criminal acts such as corruption or terrorism. the cleverness in question is a planned undertaking undertaken by an educated actor because of his expertise, his professionalism in a particular field, or because of his authority and position. for example, corruption, because the limits of the perpetrators who can be charged with corruption act is limited to the state civil apparatus, state organizers, or any party that utilizes state finances. potential perpetrators referred only to those who have certain educational qualifications, in other words, the perpetrators of corruption are people who are educated in the sense narrow.2 if only they had a strong character and manners, surely it would not have happened. so for reasons of kindness, it is necessary to emphasize the importance of character education for students. therefore we must transform our character into a successful character. the character of success is to work hard to achieve something we want, never complain about any risks we face. because for the next few years is needed are people who have good character. academically, character education is interpreted as value education, character education, moral education, character education, or moral education whose purpose is to develop the ability of learners to give good decisions, to maintain goodness, and to realize the good in everyday life with all the heart. character education as an educational concept that inculcates manners that involves aspects of knowledge (cognitive), feeling (feeling), and action (action) is a solution to improve the character and morals of the nation. practically, character education is a system of planting good values to the citizens of the school or campus which includes the components of knowledge, awareness or willingness, and actions to implement those values, whether in dealing with god almighty, fellow human beings, the environment, as well as the nation and nation to become a whole human being.3 the desire to be a democratic nation, free from corruption, collusion and nepotism (kkn), respect and obey the law are some of the nation's desired character in the life of society, nation and state. however, the fact that there is exactly the opposite phenomenon. horizontal and vertical conflicts characterized by violence and unrest are ubiquitous, accompanied by a spiral of regionalism and primordialism that can threaten the institution of the nation; the practice of corruption, collusion and nepotism has not 2 yusrianto kadir (disertasi), 2016. hakekat penerapan pendidikan anti korupsi di perguruan tinggi sebagai upaya pencegahan tindak pidana korupsi. program doktor ilmu hukum, universitas muslim indonesia makassar. 3 yusfita kumala dewi, math didactic: jurnal pendidikan matematika vol. 1, no. 2, mei agustus 2015 © stkip pgri banjarmasin, lihat juga aswari, a., & perdana, a. h. (2018, june 5). sanksi pelajar ramah lingkungan. https://doi.org/10.31227/osf.io/5zxb8. https://creativecommons.org/licenses/by-sa/4.0/ |116 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures subsided even further; the demanding democratic democracy turns into a democracy that goes too far and leads to anarchism; social and political politeness fades on the various levels of life of society, nation, and state; the intelligence of the nation's life mandated by the founders of the state increasingly invisible, all of which show the unturned noble values of the nation.4 among the students and students of moral decadence is no less apprehensive. the behavior of ethical, moral and legal bumping from mild to severe still often shown by students and students. the habit of cheating when the test or test is still done. the desire to pass easily and effortlessly during a national exam causes them to seek answers in an unethical way. they are looking for leaked answers from various sources that are not clear. especially if the desire to pass easily is institutional because it is engineered or conditioned by the leadership of educational institutions systemically. in those who do not pass, there are those who take acts of recklessness with self-harm or even suicide. unethical behavior is also shown by students. plagiarism or plagiarism of scientific work among students is also still massive. there is even done by doctoral program students. all this shows the fragility of characters among students and students.5 another thing that is symptomatic among students and students in the form of delinquency. some of them are a brawl between students and students. in some big cities, student brawls become a tradition and form a fixed pattern, so that among them form a mortal enemy. tawuran also often done by the students as done by a group of students at certain universities in makassar. another form of delinquency by students and students is to drink alcohol, promiscuity, and drug abuse that can lead to depression and even hiv / aids. another phenomenon that tarnished the image of students is and educational institutions are rampant gang learners and motor aisles their behavior often leads to even bullying that disturbs society and even criminal acts such as logging, torture, even murder. all the negative behaviors among students and students mentioned above, clearly indicate the fragility of the character is quite severe one of which is caused by the not optimal character development in educational institutions in addition to environmental conditions that do not support.6 strengthening the character became one of the priority programs of president joko widodo (jokowi) and vice president jusuf kalla. in nawa, ideals mentioned that the government will do the character revolution of the nation. the ministry of education and culture implements the strengthening of the nation's successor character through the movement of strengthening character education (ppk) which was launched in 2016. in accordance with president joko widodo's direction, character education at elementary 4 ibid 5 https://aridianadityo.wordpress.com/2012/12/15/pentingnya-pendidikan-berkarakter-bagi-mahasiswa/ 6 http://www.tubanjogja.org/2014/12/15/pentingnya-pendidikan-berkarakter/ https://creativecommons.org/licenses/by-sa/4.0/ https://aridianadityo.wordpress.com/2012/12/15/pentingnya-pendidikan-berkarakter-bagi-mahasiswa/ |117 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures education level gets a bigger portion than education which teaches knowledge. for elementary school by 70 percent, while for junior high school by 60 percent.7 the ministry of education and culture (kemendikbud) continually strives to mourn the jaws through government priority programs in education and culture. during the two years of the working cabinet, kemendikbud increased the human development index (hdi) by 0.75 points from 68.8 in 2014 to 69.55 in 2015, with the education index rising by 0.82 points from 60.18 to 61.00 in 2015. the increase in hdi is due to an increase in the average length of schooling population aged 25+ from 7.73 years to 7.83 years in 2015 and an increase in average school life expectancy increased from 12.39 years to 12.55 years in 2015.8 human development index above unfortunately only describes the output that does not lead to the development of the nation's character as a whole. targets in the first and higher levels of higher education do not reflect continuity efforts in higher education, so the hdi target of secondary education does not guarantee hdi at higher education levels. so the role of college is only more directed to the development of knowledge competence (cognitive) only. though college graduates are expected to immediately adjust to the work environment, which of course not only rely on knowledge competence only but more includes other supporting competencies. although education is only one of the variables that influence the formation of anti-corruption character, so it is expected to prevent the corrupt behavior, but education is a long-term investment in the whole human development index. university graduates who at least fill positions/jobs as members of dpr and dprd, heads of institutions / ministries, ambassadors, commissioners, governors, mayors / regents and deputies, echelon i / ii / iii, judges, prosecutors, police, lawyers, private, corporations, did not escape corrupt behavior, as the data below: 7https://www.kemdikbud.go.id/main/blog/2017/07/penguatan-pendidikan-karakter-jadi-pintu-masukpembenahan-pendidikan-nasional 8https://www.kemdikbud.go.id/main/blog/2016/12/membangun-manusia-indonesia-unggul-berdaya-saing-danberkarakter https://creativecommons.org/licenses/by-sa/4.0/ |118 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures source: acch.kpk.go.id the above chart shows that from the last 5 years the biggest corruption actors are from echelon i / ii / iii in government institutions. even if the corruptive behavior has many variables that effect, but the provision of cognitive, affective, and psychomotor competence is established through education that is quite influential in the prevention of corruption behavior.9 various efforts have been made to improve access and quality of education services including strengthening the role of vocational education as a strategic step of increasing the productivity and competitiveness of the nation and strengthening the role of culture in national education as an effort to revolutionize the nation's character.10 implementation of strengthening character education (kdp) will become the main motor of government policy in education and culture. we want to build indonesian people who have character, virtuous, and noble. our nation also wants to have a superior and noble civilization. such a civilization can be achieved if our society is also a good society. and an ideal society like this we can realize 9 yusrianto kadir, 2016, disertasi: hakekat penerapan pendidikan anti korupsi di perguruan tinggi sebagai upaya pencegahan tindak pidana korupsi. program doktor ilmu hukum. umi makassar. 10 buana, a. p., aswari, a., said, m. f., & arifin, m. y. r. (2018). responsibility parking service business to the protection of consumer of the parking services in makassar. substantive justice international journal of law, 1(1), 23-32. https://creativecommons.org/licenses/by-sa/4.0/ |119 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures when the human beings of indonesia is a morally good human, moral human, and ethical good, and humans who speak and behave well as well. there are five main character values sourced from pancasila which is actually also the role of universities in developing anti-corruption attitudes in the student environment, which became the priority of developing the kdp movement; namely religious, nationalism, integrity, independence, and mutual cooperation. each value does not stand and develop independently but interacts with each other, develops dynamically, and forms a personal whole.11 for that, we need to find the best way to build and develop human character and nation of indonesia in order to have good character, superior and noble. the right endeavor for that is through education because education has an important and central role in the development of human potential, including mental potential. through education is expected to happen a transformation that can build positive character, and change the character of the bad to be good. ki hajar dewantara explicitly states that education is an effort to promote the growth of character (inner strength, character), mind (intellect), and the body of children.12 so clearly, education is the main vehicle for cultivating good character. the problems identified in this paper are, first; how should the formation of characters that support the application of anti-corruption attitudes, and secondly; how the internalization process of the application of anti-corruption attitudes among students. efforts to prevent the culture of corruption in the community first can be done by preventing the development of mental corruption in indonesian children through education. the spirit of anti-corruption that should be a study is the planting of thought patterns, attitudes, and anti-corruption behavior through schools because school is a process of culture. the formal education sector in indonesia can play a role in meeting corruption prevention. preventive measures (prevention) can indirectly through two approaches (approach), first: make learners become targets, and second: use the empowerment of learners to suppress the environment in order not permissive to corruption. to participate in the anti-corruption and eradication movement, there are two models that educational institutions can undertake in developing an integrative-inclusive anti-corruption education curriculum for education. first, the educational process must foster social-normative concerns, build objective reasoning, and develop a universal perspective on the individual. second, education should lead to strategic seeding, the individual's consistent and robust personal qualities in social engagement. the 11https://ristekdikti.go.id/siaran-pers-kemendikbud-penguatan-pendidikan-karakter-pintu-masuk-pembenahanpendidikan-nasional/ 12ki hajar dewantara dengan tegas menyatakan bahwa pendidikan merupakan daya upaya untuk memajukan bertumbuhnya budi pekerti (kekuatan batin, karakter), pikiran (intellect), dan tubuh anak. https://creativecommons.org/licenses/by-sa/4.0/ |120 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures integrative-inclusive model of anti-corruption education in applicative education is more domiciled as an approach to contextual-based learning. character education is based on six ethical values, that everyone can agree on values that do not contain political, religious or cultural biases. some of these things can be explained and to be easily understood about the six pillars of character education13, as follows: 1. trustworthiness honest, do not cheat, plagiarize or steal, be reliable, do what you say you will do, have the courage to do the right thing and build a good reputation, obedient. 2. respect be tolerant of difference, use courtesy, not a bad language, consider other people's feelings, do not threaten, beat or hurt others, reconcile with anger, humiliation, and disagreement. 3. responsibility (responsibility) always do your best, use self-control, discipline, think before acting, consider the consequences, be responsible for the choices already taken. 4. fairness (justice) play by the rules, take as necessary and share, openminded, listening to others, do not take profit from others, carelessly. 5. caring (caring) be loving and show you care, gratitude, forgive others, helping people in need. 6. citizenship make schools and communities better, work together, involve themselves in community affairs, be good neighbors, obey laws and rules, respect authority, protect the environment. method the domain of this article is in the realm of legal science on the nonpenal side or prevention with the type of approach used is the normative approach. this approach examines the matters using the positivist concept of legislation by integrating the concept of prevention of corruption with the integration of character education in education which states that the law is identical with written norms, but further to measure the workings of the law should be supported by a non-legal approach, which in this case is the internalization of moral values and propriety in the educational environment. data were obtained through primary legal materials, secondary legal materials, and tertiary legal materials. 13 nanda ayu setiawati, pendidikan karakter sebagai pilar pembentukan karakter bangsa, prosiding seminar nasional tahunan fakultas ilmu sosial universitas negeri medan tahun 2017 vol. 1 no. 1 2017, hal. 348-352 https://creativecommons.org/licenses/by-sa/4.0/ |121 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures analysis and discussion character formation as a form of anti corruption attitude according to the ministry of national education, the character is the character, character, morality, or personality formed from the internalization of virtues that are believed and used as the basis for the worldview, thinking, attitude and action. character terminology contains at least two things: values (values) and personality. as a reflection of the whole personality, the character bases itself on the values of society. the underlying values of individual thought and behavior are embedded in a process of internalizing values that are in accordance with the culture adopted by society. this internalization process then forms the character of an individual.14 mounier proposes two ways of interpretation by looking at characters as two things, first, as a set of conditions that are given away or simply exist, which are more or less forced within us. such a character is regarded as something that has existed from the past (given). second, the character is understood as the level of power through which an individual is able to master the condition. such a character is referred to as the desired process (willed)15. thus, it can be concluded that the character is a dynamic condition of the anthropological structure of a distinct and distinct human being as a result of the integration of heart, mind, body, taste, and intention as a congenital condition accompanied by an attempt to self-perfection. character education can be interpreted as a valuable education, moral education, moral education, character education, which aims to develop the ability of learners to give good decisions bad, maintain what is good, and realize the goodness in daily life with a vengeance. the formation and development of character as an educational endeavor is expected to have a positive impact both for individuals as well as for their environment. character education is an attempt to educate children to make wise decisions and practice them in everyday life,16 so they can make a positive contribution to their environment.17 character education should involve not just aspects of good knowledge (moral knowing), but also feel good or loving good (moral feeling), and good behavior (moral action). character education emphasizes the habit or habit that is constantly practiced and practiced. thus, it can be concluded that character education is an effort to form and 14 diptasari wibawanti, persepsi dan perilaku mahasiswa dalam pendidikan karakter (studi kasus di jurusan pendidikan ilmu pengetahuan sosial fakultas keguruan dan ilmu pendidikan universitas sebelas maret) 15 a, doni koesoema. 2007. pendidikan karakter: mendidik anak di zaman global. jakarta: grasindo. 16 ibid 17 kesuma, d., triatna, c., & dan permana, j. (2011). pendidikan karakter: kajian teori dan praktik di sekolah. bandung: pt remaja rosdakarya. creative education, vol.7 no.2, february 24, 2016 https://creativecommons.org/licenses/by-sa/4.0/ http://www.scirp.org/(s(i43dyn45teexjx455qlt3d2q))/journal/home.aspx?journalid=136 http://www.scirp.org/(s(i43dyn45teexjx455qlt3d2q))/journal/home.aspx?issueid=7584 |122 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures develop character that involves all aspects of human dimensions both cognitive, affective (emotional), and psychomotor (physical) by knowing, feeling and executing good behavior (knowing the good, loving the good , an acting the good) to become a habit or habit that is continuously practiced that is personal and social as a joint responsibility of government, society, schools, and parents. character education is expected to result in more positive behavioral changes. behavior has a subjective meaning for every culprit, and weber states that an action is a human behavior that has a subjective meaning to the perpetrators. understanding the subjective meaning of an action means empathy, that is, how to place oneself in the frame of thinking of others acting, and situations and objectives seen according to the perspective. character education is a conscious effort that considers goals and ways to achieve them. by weber, this is referred to as an instrumental rational action, which includes consideration and conscious choice relating to the purpose and the tools used to achieve it. the image of a work culture based on strong character (including trustworthiness and exemplary) and intelligent, is stated as follows:18 no. characteristics defenitions indicator 1. commitment determination that binds and adheres to an educator to perform his duties and responsibilities as an educator · having vision sharpness · sense of having (sense of belonging) · to be responsible (sense of responsibility) 2. 3. component the ability of an educator in organizing learning (teaching and educating) and ability to solve various problems in order to achieve educational goals · always self development · experts in their field · inspire his profession · has competence pedagogy, personality, social, and professional hard work ability to direct or exert all effort and sincerity, potential owned until the end of a business until the goal is achieved · working sincerely and truly · working beyond the target (extra ordinary process) · productive (out-standing result) 5. simplicity ability to actualize something effectively and efficiently · understandably · not fancy · not excessive · appropriate 6. closeness the ability to interact dynamically in the emotional fabric between lecturers and learners in order to achieve the goals of learning / education · attention on student (student centered) · learning centered · relationships emotional ones harmonious 18 opcit https://creativecommons.org/licenses/by-sa/4.0/ |123 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures 7. maximum service ability to help or serve or meet the needs of learners optimally · fulfillment of standards minimal service (spm) · satisfaction · fast and responsive · fast service · proactive 8. smart · ability to quickly understand and understand, responsive, sharp in analyzing and able to find solutions alternative, and able to solve the problem (intelligent intellectual) · ability to deliver meaning/value to the various activities undertaken so that the result is optimal (intelligent emotionally and spiritually) · responsive, analytical, innovative, and solutive · coloring variety activities performed there are several things to consider in building the ideology of anti-corruption education.19 first, place education as a means of character building. german pedagogue fw foerster20 say that the main essence of education is character formation. in foerster's view, there are four basic characteristics in character education, namely the order of the interior in which every action is measured by the hierarchy of values, the coherence that gives courage, is steadfast in principle, not easily vacillated in new situations or fear of risk, giving autonomy in internalizing rules outside becomes personal value, and builds firmness and loyalty in the fight for truth and justice. the maturity of the four basic values of the foerster will build the form of a person in all his actions. with the four basic values that will be born a strong person and ready to hit the inequality that hit the community, especially corruption. second, create a curriculum that always condemns corruption as a social crime. in every subject matter, an educator should not only explain the textual meaning of scientific theory but also be able to contextualize the phenomenon of social inequality that occurs in society. with the integration of theory and reality, the educational curriculum, in addition to not dull students, is also able to lead them to a vast and powerful knowledge hollow. they are not only rich with knowledge, but also life experiences of stock in the future. third, no real action in eradicating corruption. this concrete action can be in the form of cooperation with the judiciary that drags the corruptors or non-governmental organizations concerned with corruption eradication policies. with this concrete action, students or students will see the real price of corruption in indonesia and explain to them 19 http://id.beritasatu.com/home/korupsi-dan-pendidikan-karakter/26509 diakses tanggal 10 juli 2017, pukul 12:40 wita. 20 https://indrajuliano.wordpress.com/2011/06/23/pendidikan-karakter/ https://creativecommons.org/licenses/by-sa/4.0/ http://id.beritasatu.com/home/korupsi-dan-pendidikan-karakter/26509 |124 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures that the corruptors are the tie people who have completed their education to the highest level. that way, the students will be "stranded" to rise up to restore the morality of education and will eventually be dedicated positively to the nation's survival. fourth, build a new flow cross-sectoral education. here we need to establish massive movements in various central and local educational institutions in opposing the actions of the corrupt. the new wave will always be covered by the media and will gradually become the mainstream of future humanitarian thinking. by becoming a new mainstream then anticorruption education is not just a discourse, but a movement that is very important for the sake of the future of the nation.21 anti-corruption education in the form of special courses seems to make corruption as knowledge, or at least the study materials of lecturers and students. the difference is, the expectation is that knowledge is not to be applied, but avoided. who knows the realization of a collective determination to not go along with corruption when graduating later, including the corruption that actually happens in college itself. cleaning up the house and self is much more important than examining the taxonomy of corruption in college.22 21 thalib, h., ramadhan, a., & djanggih, h. (2017). the corruption investigation in the regional police of riau islands, indonesia. rechtsidee, 4(1), 71-86. 22 yusrianto kadir, 2018. kebijakan pendidikan anti korupsi di perguruan tinggi. jurnal gorontalo law review. issn 2416-5030 https://creativecommons.org/licenses/by-sa/4.0/ |125 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures some ideological steps mentioned above are expected to be the most effective dispels against social diseases that have ruined the life of this nation. corruption and its twin brothers, collusion, and nepotism have been a "trilogy" of disease that is gnawing at this nation. do not let this nation's "trilogy" disease continue to live and undermine our common life. therefore, anticorruption education should be the god of salvation, a blueprint that can bring progress to the nation in the future. internalizing the intention of student anti corruption behavior the essence of corruption is the behavior that conscious and deliberate individuals emerge. psychologically there are several components that cause the behavior to appear. any behavior that is made consciously derives from the potential behavior (behavior that has not manifested itself), which is termed by intention. potential behavior intentions are attitudes, which consists of three factors: cognition, affection and psychomotor, in which all three synergize to form a certain behavior. thus, the corruption / anti-corruption behavior generated by individuals is based on the existence of corruption / anti-corruption behavior intent in which the synergy of three factors of cognition, affection and psychomotor occurs. anti-corruption course methods should provide a balanced synergy between the three components so that it can really serve to strengthen the student's anti-corruption behavior potential. basically, the anti-corruption potential is in each individual student, and it is the duty of the lecturer to strengthen it.23 still related to the intentions of anti-corruption behavior, fishbein, and ajzen24 explained there are 3 (three) main components forming behavior intentions are: a. attitude toward behavior (atb): influenced by behavioral belief, positive or negative evaluation of a particular behavior reflected in words such as true-false, agree-disagreeable, good-bad, etc. negative evaluation of corrupt behavior and a positive evaluation of anti-corruption will increase the intention (potential) to behave in an anti-corruption manner. b. subjective norms (sn): influenced by subjective norms around individuals who expect the individual to behave in a certain way or not. for example religious norms (religious individuals), social norms, family norms, or when people who are important to individuals or tend to be obeyed by individuals consider anti 23 yusrianto kadir (disertasi), 2016, hakekat penerapan pendidikan anti korupsi di perguruan tinggi sebagai upaya pencegahan tindak pidana korupsi, program doktor ilmu hukum, universitas muslim indonesia 24 fishbein, m., & ajzen, i. (1975). belief, attitude, intention, and behavior: an introduction to theory and research.reading, ma: addison-wesley. behavioral beliefs for positive feeling attitude toward behavior does positive feeling high trends in contact anti corruption https://creativecommons.org/licenses/by-sa/4.0/ |126 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures corruption behaviors as positive, it will increase the intention of (potentially) anticorruption behavior. c. control belief (cb): which is influenced by perceived behavior control, namely the reference difficulty and ease to elicit a behavior. it deals with the source an opportunity to realize that behavior. for example, the environment around a corrupt individual or a large/easy corruption opportunity will increase the intention of the individual to engage in the corrupt behavior, and vice versa. ideally, the student's anti-corruption behavior targeted is the consistency of anticorruption amidst the reality of the still very corrupt external environment. consistency is expected to further increase into the courage of students to be the vanguard in inviting people to do zero-tolerance against acts of corruption. planned behavior theory is used as an analytical tool in measuring the effectiveness of anti-corruption course in students. the university of paramadina conducted this study on the students of anti-corruption subjects one and a half years later. the suggested findings are of concern to every university that designs anti-corruption education25: 1. concepts and discourses on corruption and anti-corruption are indispensable and proven capable of providing sufficient cognitive effects for students' frame of mind. 2. emphasis on the existence of legal norms and anti-corruptive social norms proved able to give students a strong sense of community support. 3. but the commitment of students to consistently behave and act anti-corruptively in off-campus life is still often tangent to the reality of corruption practices (petty corruption) encountered in almost all lines. the imbalance between educational 25 herdiansyah, haris. 2010. metode penelitian kualitatif untuk ilmu-ilmu sosial. jakarta: salemba humanika. https://creativecommons.org/licenses/by-sa/4.0/ |127 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures efforts and bureaucratic system reform is feared will potentially erode the anticorruption personality that has been fostered inside the campus. it can be concluded that in prevention through education it must be supported in parallel with the improvement and improvement of integrity by the government and society. while in education itself, finally the teacher must play the role as a motivator for the students. conclusion character education can be interpreted as a valuable education, moral education, moral education, character education, which aims to develop the ability of learners to give good decisions bad, maintain what is good, and realize the goodness in daily life with a vengeance. the formation and development of character as an educational endeavor is expected to have a positive impact both for individuals as well as for their environment. this is in megawangi's opinion that character education is an attempt to educate children to make wise decisions and practice them in everyday life so that they can contribute positively to their environment. ideally, the student's anti-corruption behavior targeted is the consistency of anti-corruption amidst the reality of the still very corrupt external environment. consistency is expected to further increase into the courage of students to be the vanguard in inviting people to do zero-tolerance against acts of corruption. reference a, doni koesoema. (2007). pendidikan karakter: mendidik anak di zaman global. jakarta: grasindo. aswari, a., & perdana, a. h. (2018). sanksi pelajar ramah lingkungan. https://doi.org/10.31227/osf.io/5zxb8 buana, a. p., aswari, a., said, m. f., & arifin, m. y. r. (2018). responsibility parking service business to the protection of consumer of the parking services in makassar. substantive justice international journal of law, 1(1), 23-32. diptasari wibawanti, persepsi dan perilaku mahasiswa dalam pendidikan karakter (studi kasus di jurusan pendidikan ilmu pengetahuan sosial fakultas keguruan dan ilmu pendidikan universitas sebelas maret) fishbein, m., & ajzen, i. (1975). belief, attitude, intention, and behavior: an introduction to theory and research.reading, ma: addison-wesley. herdiansyah, haris. (2010). metode penelitian kualitatif untuk ilmu-ilmu sosial. jakarta: salemba humanika. https://creativecommons.org/licenses/by-sa/4.0/ https://doi.org/10.31227/osf.io/5zxb8 |128 volume 1, issue 2, july 2018 : 114 128 anti corruption attitude of students as a corruption measure of criminal measures hidayatullah, m.f. (2009). guru sejati: membangun insan berkarakter kuat dan cerdas. surakarta: yuma pustaka. kesuma, d., triatna, c., & dan permana, j. (2016). pendidikan karakter: kajian teori dan praktik di sekolah. bandung: pt remaja rosdakarya. creative education, vol.7 no.2, february 24. kusuma, (2011). pendidikan krakter strategi mendidik anak di zaman global gramedia, jakarta nanda ayu setiawati, (2017). pendidikan karakter sebagai pilar pembentukan karakter bangsa, prosiding seminar nasional tahunan fakultas ilmu sosial universitas negeri medan tahun 2017 vol. 1 no. 1, p. 348-352. ratna megawangi, (2004). pendidikan karakter; solusi yang tepat untuk membangun bangsa, bogor: indonesia heritage foundation. sunarto, kamanto. (2004)pengantar sosiologi. jakarta: penerbit fakultas ekonomi, universitas indonesia. thalib, h., ramadhan, a., & djanggih, h. (2017). the corruption investigation in the regional police of riau islands, indonesia. rechtsidee, 4(1), 71-86. wade, carole, dan carol tavris. (2007). psychology,9th edition, bahasa indonesia language edition. jakarta : penerbit erlangga. winataputra. u.s. (2010). implementasi kebijakan nasional pembangunan karakter bangsa melalui pendidikan karakter. yusrianto kadir (disertasi), (2016). hakekat penerapan pendidikan anti korupsi di perguruan tinggi sebagai upaya pencegahan tindak pidana korupsi. program doktor ilmu hukum, universitas muslim indonesia makassar. yusfita kumala dewi, math didactic: jurnal pendidikan matematika vol. 1, no. 2, mei agustus 2015 © stkip pgri banjarmasin. yusrianto kadir, (2018). kebijakan pendidikan anti korupsi di perguruan tinggi. jurnal gorontalo law review. issn 2416-5030 https://www.kemdikbud.go.id/main/blog/2017/07/penguatan-pendidikan-karakter-jadipintu-masuk-pembenahan-pendidikan-nasional https://fidyanifitri.wordpress.com/2012/07/02/pentingnya-pendidikan-karakter-dikalanganmahasiswa/ diakses tanggal 7 juli 2017, pukul 10:24 https://creativecommons.org/licenses/by-sa/4.0/ http://www.scirp.org/(s(i43dyn45teexjx455qlt3d2q))/journal/home.aspx?journalid=136 http://www.scirp.org/(s(i43dyn45teexjx455qlt3d2q))/journal/home.aspx?journalid=136 http://www.scirp.org/(s(i43dyn45teexjx455qlt3d2q))/journal/home.aspx?issueid=7584 https://www.kemdikbud.go.id/main/blog/2017/07/penguatan-pendidikan-karakter-jadi-pintu-masuk-pembenahan-pendidikan-nasional https://www.kemdikbud.go.id/main/blog/2017/07/penguatan-pendidikan-karakter-jadi-pintu-masuk-pembenahan-pendidikan-nasional https://fidyanifitri.wordpress.com/2012/07/02/pentingnya-pendidikan-karakter-dikalangan-mahasiswa/ https://fidyanifitri.wordpress.com/2012/07/02/pentingnya-pendidikan-karakter-dikalangan-mahasiswa/ volume 6, issue 1, june 2023: 28 – 41 this work is licensed under a creative commons attribution 4.0 international license. existence of consumer protection in the katsuwonus pelamis process as a safe culinary telly sumbu,ω donald albert rumokoy, wulanmas anna patricya gracya frederik universitas sam ratulangi, indonesia ωemail correspondence: tellysumbu@unsrat.ac.id abstract katsuwonus pelamis is a fishery commodity originating from the waters of the bay in indonesia, cakalang fufu is a popular culinary dish with processed fish that is processed quickly, served fresh, frozen, canned, or dried, which has become the object of fishing for fishermen because it is considered profitable. the reality of management that does not have adequate quality control, while the paradigm of the entrance market is skipjack tuna management as soon as possible has been carefully tested for safety aspects before the product is released to the market. this action is a legal event that causes harm to consumers who are accommodated by legal protection. this study aims to describe the process of catching, storing, and marketing skipjack tuna as a safe food product from the perspective of consumer law protection, and to describe the forms of law enforcement against the circulation of unsafe food products. this research uses the type of research socio-legal research. the description of the research results shows that the process of catching, storing, and marketing skipjack tuna specifically in north sulawesi still uses traditional methods, but the urgency and safety aspects of catching results cannot be guaranteed, including the process of storing and marketing skipjack tuna does not comply with the provisions. standard procedures are ignored so that the impact of the expected information is given to consumers from the capture process to the final consumer. keywords: law enforcement; consumer protection; safe food; date of submission: october 06, 2022 date of publication: march 3, 2023 doi: http://dx.doi.org/10.56087/substantivejustice.v6i1.224 introduction indonesia’s coastal and marine areas hold a variety of resources, both renewable and non-renewable. (von jouanne & brekken, 2019) coastal and marine resources that are renewable such as fisheries resources (captured fisheries, cultivation), mangroves, wave energy, tides, wind, and ocean thermal energy conversion (otec) require good management to be used optimally. the smoked skipjack/cakalang fufu is a favorite dish in manado and north sulawesi in general, and it is processed into popular skipjack tuna dishes that are typical to north sulawesi. the smoked skipjack fish/cakalang fufu management business is a business that has https://creativecommons.org/licenses/by-sa/4.0/ mailto:tellysumbu@unsrat.ac.id http://dx.doi.org/10.56087/substantivejustice.v6i1.224 volume 6, issue 1, june 2023: 28 – 41 existence of consumer protection… | 29 a very important and strategic position, potential, and role in realizing national development goals in general and the objectives of economic development in particular. these small businesses are generally the ones that are owned and managed independently by someone, are not bound, and do not dominate the market. (liandi & andryawan, 2022; von jouanne & brekken, 2019) skipjack tuna (katsuwonus pelamis) is fishery commodity from bay waters in indonesia. (ali et al., 2016) this particular type of fish has become the target of fishermen because it is considered profitable. (liandi & andryawan, 2022) the skipjack tuna is then sold fresh, frozen, canned, dried, or even smoked. the impact that arose due to the dynamic movement of small businesses was very large because it created jobs where there were innovations in the field of business and creativity in the processing of the smoked skipjack fish/cakalang fufu. however, the question is that along with the processing of the skipjack fish that can create jobs, is this product feasible to be categorized as a safe food product that is not harmful to health and is safe for consumption by consumers? (abel et al., 2022; chintagari et al., 2018; wallace et al., 2018) the focus point of the smoked skipjack fish/cakalang fufu fish as a safe product is the process of catching, preparing, storing, and marketing raw skipjack fish, as well as the processing and management of the smoked skipjack fish/cakalang fufu. thus, in order to assess the feasibility of skipjack fish products as safe food products that are not dangerous to consume, of course, the assessment must go through the process of catching, storing, and through to reaching the marketing raw skipjack fish. safe food products in the smoked skipjack fish/cakalang fufu production business through the process of catching, storing, and though to reaching marketing of raw skipjack fish become a very important focus of attention in interpreting law number 8 of 1999 concerning consumer protection. (hasan, 2014; konsumen & maulidia, 2013; purnamasari et al., 2019) this is so that producers are required to be careful before releasing their products. this situation certainly requires quality control of the management business of skipjack fish as a safe food product, given that the management of skipjack fish is at the maximal without there being a careful examination of aspects of consumer security and safety before the product is released into the market. the reality of the ‘product out’ paradigm is that from the process of catching, storing, and until reaching the marketing of raw skipjack fish before arriving at the processing of smoked skipjack fish/cakalang fufu, it is without adequate quality control, and the ‘market in’ paradigm is to examine tuna fish management carefully for its safety aspects before the product is released into the market. method this type of research is a qualitative type with a socio-legal approach and then analyzed descriptively qualitatively by describing, explaining, and describing the various factors revealed through a juridical approach. the juridical approach is intended as an effort to bring the problem volume 6, issue 1, june 2023: 28 – 41 30 | existence of consumer protection… closer to the normative of law. the doctrinal legal approach is the perspective used, namely by studying legal objectives, values of justice, the validity of legal rules, legal concepts, and legal norms. the sociological approach is carried out through efforts to identify and conceptualize law as a real and functional institution in the pattern of community life. then referring to the juridical sociological approach, this research uses layered research by tracing the management of skipjack food products. analysis and discussion the handling aspects when fish are caught are very important things to consider, especially in fisheries because it involves how to get good quality fish. good quality products that can be maintained consistently will increase consumer confidence. (abiala et al., 2020) the quality aspect is one aspect that is very important in advancing the world of indonesian fisheries in international markets. (adam, 2018) added that in the management of fish quality since the fish was caught up to the marketing it was very important to be understood by the related actors both fishermen, collectors, and marketing. fisheries are all activities related to the management and utilization of fish resources and the environment ranging from pre-production, production, and processing to marketing carried out in a fisheries business system. fish are all types of organisms that all or part of their life cycle is in the aquatic environment. a good way of handling fish is a way of handling fish caught on board a ship including dismantling from the ship to meet the requirements for quality and safety assurance of fishery products, which are carried out quickly, carefully, hygienically and applying cold chain handling methods. the method of catching is carried out by fishermen who are indonesian citizens, both individuals and their families whose livelihoods depend on fishing. the survey results that the researcher can explain are as follows: 1. catching using sailboats (2.5%), outboard motorboats (35%), and large motorboats (62.5%). the fishing gear used by fishermen is fishing rods (2.5%), nets (62.5%), and fishing lines (35%). fishermen in manado and the surrounding do not use chemicals (fish bombs) in the process of catching fish. • the fishing community in the fishing business still uses traditional equipment. this can be seen from the fleet that is used on average which is of small size. the fishing gear used is also only nets and fishing rods. 2. the main types of fish caught are skipjack fish. other types of fish are as follows: tuna, mackerel (tude), flying fish (malalugis), and grouper (goropa). 3. the number of fish obtained varies between fishermen based on the facilities used and also the seasonal factor. the fish obtained range from 35kg/day to 6000kg/day. volume 6, issue 1, june 2023: 28 – 41 existence of consumer protection… | 31 • the dominant type of fish caught with a net or fishing rod is the skipjack tuna or katsuwonus pelamis. the skipjack fish are found in almost all indonesian waters, especially in the eastern part of indonesia. 4. the catch is stored in a cooler box, a bucket with ice, or a basket. to maintain its quality, in addition to using ice to keep the temperature cool, salt is also used. after arriving on land, fish are immediately sold out. • the freshness of the fish that has just died is the maximum level of freshness, meaning that the freshness of the fish cannot be increased but can only be sustained through the application of good and right post-capture handling principles. • the process of handling fish with cooling methods is the most effective and widely used method. the most effective cooling medium for fish freshness is ice because it does not cause any physical changes in fish. 5. fishermen sell fish to retailers or directly to consumers. sale conditions are frozen or not. sale times vary from 1 hour to 18 hours. this affects the quality of the fish. in connection with the quality of fish, of course, it must be in accordance with the fishery product quality and security assurance system which is a prevention and control effort that must be considered and carried out from pre-production to distribution to produce quality fisheries that are safe for human health. fishery products are fish that are handled, processed, and/or used as final products in the form of fresh fish, frozen fish, and other processed products. the fishery product quality and security assurance system include activities such as: 1. development and application of requirements or standards of raw materials. raw materials are fish including those that come from the catch and cultivation which can be used as a production factor in the processing of fishery products. 2. development and application of hygienic requirements or standards, handling techniques, and processing techniques. fish processing is a series of activities and/or treatments of raw fish materials to be the final product for human consumption. 3. development and application of product quality requirements or standards. 4. development and application of requirements or standards of facilities and infrastructure. 5. development and application of requirements or standard testing methods. 6. quality control; quality control is all activities that include inspection, verification, audit, and sampling in order to provide satisfactory results. 7. quality supervision is all activities that include guidance, facilitation, monitoring, and evaluation of the quality and safety of the fishery products. 8. certification is a series of certificate issuance activities for products, facilities and infrastructure, processes and personnel as well as the quality system. volume 6, issue 1, june 2023: 28 – 41 32 | existence of consumer protection… standard operational processing of fishery products catching fish cultivation distribution and marketing as for the standard operating procedure for processing skipjack fish which are good safe food products, researchers depart from law number 18 of 2012, article 68 paragraph (1) which is the explanation states: 1. what is meant by “food chain” is the sequence of stages and operations in the production, processing, distribution, storage, and handling of food and its raw materials ranging from production to consumption, including materials related to food so that the food is ready for consumption. 2. what is meant by “in an integrated manner” is the implementation of food safety must be carried out in an integrated and synergistic manner by all stakeholders in each food chain. then, departing from the food chain mentioned above, the researcher tries to compile a standard operating procedure for processing the skipjack fish product which is described as follows: standard operating procedure for processing skipjack fishery products according to the researcher, the element of fish caught should be included as a main part of the standard operating procedure for processing skipjack fish products. this is intended because food security is inseparable from good fishing methods. if fishermen obey the rules in fishing, of course, the fish catch contains food security. in connection with fishing, the researcher has explained in the previous section, hereinafter relating to fish cultivators, are indonesian citizens, both individuals and their families whose livelihoods are raising, breeding, and/or maintaining fish and other aquatic biological resources and harvesting the results in a controlled environment. there are good ways to cultivate fish, among them is a method of cultivation including how to maintain and/or raise fish and harvest them that show the safety aspects of fishery products, among others: (george dieter nakmofa, 2014; m. r siombo, 2007; marhaeni ria siombo, 2010, 2011) 1. preventing land use where the environment has the potential to threaten the security of fishery products; volume 6, issue 1, june 2023: 28 – 41 existence of consumer protection… | 33 2. controlling biological contamination, pests, and fish diseases that threaten the security of fishery products; and 3. minimizing the already minimum chemical residues as a result of the use of fish drugs, growth-promoting ingredients, and ineffective fish medicines. 4. harvesting equipment uses materials that do not physically damage, are not made from toxic and dangerous materials, have the potential to contaminate the product, are not easily corrosive, and are easy to clean; and 5. the manner of harvest is done quickly and carefully, with hygienic, and apply cold chain handling methods. furthermore, the matter of distribution and marketing, of course, cannot be separated from food trade, that is every activity or series of activities in the context of selling and/or purchasing food, which include offers to sell food transferred by obtaining compensation. in connection with the statement above, article 71 paragraph (1) of act number 18 of 2012, states that: every person involved in the food chain is obliged to control the risk of harm to food, whether it comes from ingredients, equipment, production facilities, or from individuals so that food safety is guaranteed. subsequently, paragraph (2) states that: every person who organizes activities or process of production, storage, transportation, and/or distribution of food must: meet sanitation requirements; and guarantee food safety and/or human safety. (zimmermann, 2021) the government guarantees the realization of the implementation of food safety in each food chain in an integrated manner. the government establishes food safety norms, standards, procedures, and criteria. farmers, fishermen, fish cultivators, and food business actors must implement food safety norms, standards, procedures, and criteria. the application of food safety norms, standards, procedures, and criteria is carried out in stages based on the type of food and food business scale, and the government must develop and supervise the implementation of food safety norms, standards, procedures, and criteria. (njatrijani, 2021; widiyaningsih, 2018) food safety is held to keep food safe, hygienic, good quality, nutritious, and not against the religion, beliefs, and culture of the community. food safety is intended to prevent the possibility of biological, chemical, and other contaminants that can interfere with, harm, and endanger human health. (arif, 2018) food safety is carried out through: 1. food sanitation; 2. regulation of food additives; 3. regulation of genetically engineered food products; 4. regulation of food irradiation; 5. the standard setting of food packaging; 6. guaranteeing food safety and food quality; and volume 6, issue 1, june 2023: 28 – 41 34 | existence of consumer protection… 7. guaranteeing halal products for those that are required. food sanitation is done so that food is safe for consumption, carried out in the activities or process of production, storage, transportation, and/or distribution of food., it must meet the requirements of food safety standards. (haerani & nurcahyo, 2019) the process of observation rather than the implementation of all organizational activities to ensure that all work is being carried out goes according to a predetermined plan. supervision is a process that determines what must be done, so that what must be done, or so that what will be done is in line with the plan. a process for determining what work has been carried out, assessing and correcting it if necessary, with the intention of carrying out the work in accordance with the original plan. supervision is every effort and action in order to find out how far the implementation of the task is carried out according to the provisions and objectives to be achieved. (cohen, 2019; dove & bryant, 2019) in relation to the fishery, product quality control system has experienced quite a rapid development. however, the national fishery product quality control system that has been implemented so far seems to still require sharpening and feedback so that its implementation is more effective and efficient. this is intended to unite the pace of all levels and networks of the quality of fishery quality supervisors, especially in terms of the similarity of perceptions about the importance of implementing quality assurance for fishery products related to food safety and quality. in addition, it is necessary to harmonize understandings in the application of quality supervision by quality supervisors, both at the center and in various regions throughout indonesia, as well as refinement of several related documents. in law number 31 of 2004 concerning fisheries as amended by law number 45 of 2009 concerning the amendment of law number 31 of 2004 concerning fisheries it is expressly regulated that the fisheries business is carried out in the fisheries business system which includes pre-production, production, processing, and marketing. furthermore, it is also stipulated that the fish processing and processed fish products process must meet the requirements for fish processing feasibility and fishery products quality and safety assurance system. as an effort to implement and operationalize the mandate of the act in question, more regulations are needed in continuing regarding processing, quality of fishery products, and security assurance system, so that it is based on the stipulation of government regulation concerning fishery product quality and safety assurance system and increasing the added value of fishery products. the quality fishery product and safety assurance system is a prevention and control effort that must be considered and carried out from pre-production to distribution to producing good quality fisheries that are safe for human health. quality control covers all activities which include inspection, verification, surveillance, audit, and sampling in order to guarantee the quality and safety of the fishery products. volume 6, issue 1, june 2023: 28 – 41 existence of consumer protection… | 35 in the republic of indonesia’s government regulation no. 57 of 2015 concerning the system for guaranteeing the quality and safety of fishery products and increasing the added value of fishery products, in this case, fisheries are all activities related to the management and utilization of fish resources and the environment starting from pre-production, production, processing to marketing carried out in a fisheries business system. raw fish materials include the parts that come from the catch and cultivation that can be used as a factor of production in the processing of fishery products. fish are all types of organisms that all or part of their life cycle is in the aquatic environment. again, talking about quality control in the field of fisheries, the quality control activities, through: 1. quality supervision is carried out on cultivation or capture activities, handling, processing, packaging, storage, and distribution of fishery products. 2. quality supervision is carried out through the: • guidance in the preparation of procedures and application of requirements for cultivation or capture, handling, processing, packaging, storage, and distribution; • guidance and facilitation in document preparation, validation, and quality system implementation; and • monitoring and evaluation of the quality and safety of products for consumption. 3. quality supervision results in the form of recommendations for issuing a feasibility processing certificate. 4. quality supervision is carried out by the quality supervisor. quality supervisors are civil servants who are appointed by the minister or officials who are then appointed to carry out quality control. according to the republic of indonesia’s government regulation no. 58 of 2001 concerning guidance and supervision of the implementation of consumer protection, article 7 states that supervision of the implementation of consumer protection and the application of statutory regulations is carried out by the government, the community, and non-governmental consumer protection institutions. supervision is carried out by means of research, testing, and/or surveys. research, testing, and/or surveys as intended are carried out on goods that are allegedly not fulfilling the elements of security, health, comfort, and safety of consumers. with regard to quality supervision, the researcher has presented sensory analysis sheets based on the indonesian national standart 01-2729-1992 on the quality of fish as follows, the sensory quality of skipjack fish sold in the markets in manado and its surroundings, the results of the analysis show that the value of quality ranges from 6-8, with the following assessment criteria score of 7-9 is stated to be fresh, the score of 4-6 is stated to be somewhat fresh, the score of 1-3 id stated to be not fresh. law enforcement of fishery activities that violate the law are: volume 6, issue 1, june 2023: 28 – 41 36 | existence of consumer protection… 1. fishery activities conducted by foreign people or ships in water that are part of the jurisdiction of a certain country without permission from the said country or that are contrary to the laws and regulations of said country; 2. fishery activities are carried out by ships that are flying the flag of a country that is a member of a regional fisheries management organization but are carried out in a manner that is contrary to the regulation concerning the management and conservation of resources adopted by the organization, where the provisions are binding on the country that is a member, or contrary to other relevant international laws; and/or 3. fishery activities that are contrary to national law or international obligations, including the obligations of member states of regional fisheries management organizations towards the said organization. “unreported fishery activities” are: a.i.1. fishery activities that are not reported or are reported incorrectly to the authorized national authorities, which are contrary to the laws and regulations of the authorized national authorities; and/or a.i.2. fishery activities carried out in the area of competence of regional fisheries management organizations that are not reported or are reported incorrectly, which is contrary to the reporting procedures of the organization. unregulated fishery activities are: 1. fishery activities carried out in the area of competence of regional fisheries management organizations by: a) a ship without nationality; b) ships that fly the flag of a country that is not a member of the regional fisheries management organization; or c) fishery companies, in which the fishery activities are carried out in a manner that is contrary to the regulations concerning the conservation and management of fisheries of the regional fisheries management organization. 2. fishery activities carried out by: a) a ship without nationality; b) ships that fly the flag of a country that is not a member of the regional fisheries management organization; or c) fishery companies, d) in territorial waters or for fish stocks where there are no regulations concerning the conservation and management of fisheries which can be applied and carried out in a manner that is contrary to the responsibility of the state to conserve live marine as a form of natural resources based on international law. volume 6, issue 1, june 2023: 28 – 41 existence of consumer protection… | 37 the law is an association of ideas, values, and concepts that are abstract, and to realize it as an institution in life is a process that is strongly influenced by: 1. humans as law makers, law enforcement officials with bureaucracy; 2. community structure; and 3. institutions/organizations. of the 3 (three) elements mentioned above, the implementation cannot be separated from the influence of the environment in the form of certain patterns and behaviors of the community. the law, in carrying out its function as a regulator of common life, runs a long process and involves a variety of activities with different qualities and the outline of the activity is in the form of law-making and law enforcement. the law in this sense is not the law in the broad sense, but the law in a positive sense, namely written regulations or legislation that apply in a certain place, in this case in indonesia. factors that affect law enforcement are: (1) the legal factor itself, namely the legislation. (2) the law enforcement factor, namely those who form or apply the law (government and law enforcement officers). (3) the factors of facilities and infrastructure that support law enforcement. (4) the cultural factor. the success of law enforcement always requires the functioning of all components of the legal system. law enforcement system for the marketing of skipjack fish as a safe food product can be described as follows: 1. the legal substance component is law no. 8 of 1999 concerning the law of consumer protection. • article 1:1 of the consumer protection act states that: consumer protection is all efforts that guarantee legal certainty to provide protection to consumers. • article 4 of the consumer protection act states that: consumer rights are the right to comfort, security, and safety in consuming goods and/or services. • article 7 of the consumer protection act states that: the obligations of business actors are good faith in carrying out their business activities. • article 8:2 of the consumer protection act states that: business actors are prohibited from trading damaged, defective or used, and polluted goods without providing complete and correct information on the said goods. • article 19 of the consumer protection act states that: business actors are responsible for providing compensation for damage, pollution, and/or services produced or traded. 2. the legal structure component is: • in connection with the foregoing, the law cannot be upheld if there is no credible, competent, and independent legal apparatus. if the law is not supported by a good legal apparatus, then justice is only wishful thinking. the weakness of the legal apparatus mentality has resulted in the application, implementation, and volume 6, issue 1, june 2023: 28 – 41 38 | existence of consumer protection… enforcement of the law not working properly. many factors influence the weakness of the legal apparatus mentality. even though the regulations are good, if the quality of law enforcement is low, there will be problems. there is an adage that states that fiat justitia et pereat mundus meaning even though the world is collapsing the law must be upheld. the law cannot be upheld if there are no law enforcement officers who are credible, competent, and independent. if the law is not supported by a good law enforcement officer, then justice is only wishful thinking. this means that a legal structure is needed in the application, implementation, and law enforcement of the law. • however, on a practical level, there are several problems that exist, namely: • weak coordination between the government vertically, namely the central government: the directorate general of consumer protection at the central ministry of trade with regional governments: the field of consumer protection of north sulawesi industry and trade service; and horizontally, namely the north sulawesi industry and trade service the north sulawesi special criminal investigation directorate the north sulawesi pom agency. • the lack of human resource stakeholders in carrying out their duties as investigators in consumer protection law enforcement. • weak public service. • the local government has not provided the means and facilities for the consumer dispute settlement agency. 3. the legal culture component is: • diversity of ideas about the law that exist in various societies and their position in the social order. these ideas explain legal practices, the attitude of citizens towards the law and unwillingness to file cases, and relative legal significance, in explaining broader thoughts and behaviors outside of practice and specific forms of discourse related to legal institutions. thus, variations in legal culture may be able to explain a lot about the different ways in which legal institutions that appear to be the same can function in different societies. • in connection with the purpose of this study, the indicator of legal culture is a measure from researchers to trace the effectiveness of law number 8 of 1999 concerning consumer protection. • based on facts found in the field, the following are discovered: i. the existence of culture set and mindset stakeholders have not fully supported a bureaucracy that is efficient and effective, productive and professional. volume 6, issue 1, june 2023: 28 – 41 existence of consumer protection… | 39 ii. the weakness of the legal apparatus mentality has resulted in law enforcement not working as it should. iii. weak public service from stakeholders. iv. the stakeholder of the human resources factor is not yet competent. v. the performance of government organizations is still low. vi. the monitoring system has not yet run optimally. vii. performance accountability is not yet effective therefore the legislation still overlaps. viii. weak coordination vertically, namely the central government: the directorate general of consumer protection at the ministry of trade with the regional government: the consumer protection sector of the north sulawesi industry and trade office; and horizontally, namely the north sulawesi industry and trade service the north sulawesi special criminal investigation directorate the north sulawesi pom agency. ix. the lack of attention from stakeholders in implementing law no. 8 of 1999 concerning consumer protection. x. the lack of public awareness of law no. 8 of 1999 concerning the law on consumer protection. the field conditions stated above indicate a lack of legal culture from both stakeholders and citizens. this is certainly an inhibiting factor in consumer protection law enforcement. this is intended, that if the government and society have had a positive value, then the law will be well received, on the contrary, if it is negative, the community will oppose and stay away from the law and might even consider that the law does not exist. legal culture is closely related to public legal awareness. the higher legal awareness of the community will create a good legal culture and can change the mindset of the public regarding the law. in simple terms, the level of compliance with the law is one indicator of the functioning of the law. conclusion the process of catching, storing, and marketing skipjack tuna in north sulawesi still uses traditional methods where the health and safety aspects of the catch cannot be ascertained, and the storage and marketing process for skipjack tuna is not in accordance with the appropriate standard operating procedures so that the impact on the incorrect information provided to the consumer and the process of catching, storing and marketing skipjack tuna in north sulawesi still uses traditional methods where the health and safety aspects of the catch cannot be ascertained and the storage and marketing process for skipjack tuna is not in accordance with the appropriate standard operating procedures so that the impact on the incorrect information provided to the consumer. and the suggestions that the author gives are in the context of consumer protection law enforcement in north sulawesi, the vertical coordination of the shareholders is needed, volume 6, issue 1, june 2023: 28 – 41 40 | existence of consumer protection… namely: the central ministry of trade and the north sulawesi trade industry service; as well as horizontally, namely the north sulawesi trade industry service north sulawesi special criminal investigation directorate north sulawesi food and drug supervisory agency. there needs to be the empowerment of human resources for civil servant investigators because all this time there has been a lack of human resources for stakeholders in carrying out their duties as investigators of civil servants in consumer protection law enforcement. it is necessary to establish a consumer dispute settlement agency in consumer protection law enforcement. reference abel, n., rotabakk, b. t., & lerfall, j. 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(2021). the world health organization as actor in international environmental law? an analysis by example of the global waste challenge. review of european, comparative & international environmental law, 30(3), 363–374. https://doi.org/https://doi.org/10.1111/reel.12415 volume 4, issue 2, december 2021 : 182 – 194 paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia kamaruddin kamaruddin1, andi yaqub2, iswandi iswandi3 134faculty of sharia, institut agama islam negeri (iain) kendari, indonesia email correspondence: kamaruddinjaya123@gmail.com abstract this study aims to identify the paradoxical and anomalous factors in the marriage law in indonesia, which are specifically described in article 7 paragraph 1; which is then based on factual data regarding the marriage law and then strives to be able to produce more effective solutions in overcoming the implications of the paradox, especially in the marriage law. this study uses a normative legal research approach derived from the laws or regulations in the marriage that apply in indonesia. this study has comprehensively described the fundamental factors of changes to the marriage law, which gave birth to conclusions regarding socially occurring facts, which are described in detail in the discussion and conclusion sections. keywords: indonesian marriage law; revision of legal substance; underage-marriage date of submission: august 10, 2021 date of publication: december 31, 2021 doi: http://dx.doi.org/10.33096/substantivejustice.v4i2.167 introduction amendments to article 7 paragraph (1) of the marriage law can cause problems in increasing the practice of child marriage. the current minimum age limit of 19 years for women is a new problem for suppressing the number of early marriages in indonesia.1 the practice of child marriage is heavily influenced by the two main sectors of the function of the competent authority, structurally and the legal culture of the community towards the marriage law so that the practice of underage marriage continues.2 failure to accommodate data on underage marriages in each year changes to law number 16 of 2019 will harm the controlling early marriage.3 the revision of the marriage law (uup) is inseparable from the decision of the constitutional court, which states that everyone must be given fundamental rights and constitutional rights. it can be seen that the position of the decision is strongly motivated by 1 mayadina rohmi musfiroh, “pernikahan dini dan upaya perlindungan anak di indonesia,” de jure: jurnal hukum dan syariah 8, no. 2 (2016): 64–73. 2 via syihabul millah, “peran dan upaya kua dalam menanggulangi pernikahan di bawah umur (studi kasus di kua kec. cikande tahun 2016-2018),” journal of chemical information and modeling 53, no. 9 (2019): 1689–1699. 3 widihartati setiasih, “analisis putusan dispensasi nikah dibawah umur dalam perspektif perlindungan perempuan,” jurnal ppkm (2017): 235–245. this work is licensed under a creative commons attribution 4.0 international license. mailto:kamaruddinjaya123@gmail.com http://dx.doi.org/10.33096/substantivejustice.v4i2.167 https://creativecommons.org/licenses/by-sa/4.0/ volume 4, issue 2, december 2021 : 182 – 194 paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia | 183 human rights (ham) and the health of a child by getting married at a young age.4 likewise, with the drafting process, the stipulation in parliament is the same pretext that women must have equal political, economic, and social positions so that the ages of women and men are equalized for the equal rights of a person. the revitalization of the marriage law (uup) creates a burden on measures to minimize the practice of underage marriage. the minimum age for women is too high, so it is a new burden for the office of religious affairs (kua) to face the pressure of early marriage practices.5 in addition, religious courts will still be an exceptional alternative and provide space for applicants to obtain legality and recognition before the law 6; 7. although for example, the court (judge) is forced to give a decision as a legal umbrella because the behavior of women and men and the role of the family are not very functional. according to yunus, the portrait of the practice of underage marriage in the last three years has increased based on 2017-2019 data.8 the increase in the number of marriages is due to several supporting factors, namely a low level of understanding, the economy, free association, and the will of family members.9 the factor causing young marriage is the reality of changes to article 7 paragraph (1) of the uup experiencing social issues in a judicial review in the constitutional court and a revision in the dpr ri. minimum age-specific changes cannot solve the problem of young marriage practice because the changes are not based on the actual root cause. law as a social control solves a problem not based on changes (revisions) to legal products from a selfish perspective and existing minority cases. the modification of the marriage law is a phenomenon that can have a negative impact on the existence of underage marriages. the factor that causes the practice of easy marriage is the failure of institutions and agencies in providing education and counseling to the maximum. the steps to resolve underage marriage must be based on the real root of the problem. the legal policy led to a polemic against implementing the revised marriage law, still prioritizing normative steps as the leading force without looking at other facts as the main factor. the practice of early marriage continues to increase. the neglected sociological facts are about structural functions that are in direct contact with the field as a form of implementation, socialization of the marriage law from the 4 inna noor inayati, “perkawinan anak di bawah umur dalam perspektif hukum, ham dan kesehatan,” jurnal bidan vol. 1 no., no. 1 (2015): 46–53. 5 eka radiyani oktavia et al., “pengetahuan risiko pernikahan dini pada remaja umur 13-19 tahun,” higeia journal of public health research and development vol. 2 no., no. 186 (2018): 239–248. 6 miftakhul janah, “dispensasi nikah di bawah umur dalam hukum islam pernikahan adalah hal kesepakatan sosial antara seorang lakidapat tumbuh, kuat, berkembang dan maju. jadi pernikahan bukan berdasarkan pasal 1 undang-undang nomor 1 tahun 1974 lahir batin antara seoran,” jurnal hukum keluarga islam vol. 5 no., no. april (2020). 7 anggit kurniawan, “naskah publikasi tinjauan yuridis dispensasi permohonan nikah bagi anak di bawah umur (studi kasus penetapan pengadilan agama wonogiri)” (universitas muhammadiyah surakarta, 2014). 8 dan mukhoyyah yunus, muh. idris, “pernikahan di bawah umur pada masyarakat pesisir malangke,” al-ahwal al-syakhsiyah, iai al-qolam 3, no. 2 (2020): 43–51. 9 maria kabang, eli trisnowati, and tri mega ralasari s, “pemahaman tentang akibat pernikahan di bawah umur melalui layanan informasi dengan teknik diskusi,” jurnal bimbingan dan konseling ar-rahman 4, no. 2 (2018): 55. 184 | paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia volume 4, issue 2, december 2021 : 182 – 194 level of secondary education to above, and the legal culture of the community, as well as the role of parents and families in anticipating unlawful practices. method this is a normative legal system with secondary data collection which is carried out by tracing legal principles, examining the synchronization and systematics of legal products whose existence is categorized as valid data. this writing uses statute approach, associated with a conceptual approach that focuses on legal concepts and legal principles relevant to implementation in indonesia. analysis and discussion a. factors affecting changes in marriage law 1. the decision of the constitutional court (mk) as an instrument the reconstruction of the minimum age limit for marriage is motivated by legal protection for women. the argument is apparent in the decision of the constitutional court (mk) register 22/puu-xv/2017 that every child has the right to have their constitutional rights as citizens, including the right to health insurance (mental and physical, as well as women's welfare. along with the times that encourage the development of women's productivity and education, the minimum age limit for women has caused debate, on the other hand; the constitutional court has rejected the judicial review article 7 paragraph because it will generate new problems in the practice of marriage and this is in line with the increase in the divorce rate which is still high.10 on the other hand, in the2017 article 7 paragraph 1 the year 2017 of the marriage law, several people again sued and demanded justice as a form of legal equality between women and men (equality before the law) by citing article 27 paragraph of the 1945 nri constitution 11. equality before the law that the child's age has implications for the practice of early marriage in the community. this aspect of change cannot be separated from the factual arguments put forward by community groups, namely the issue of human rights (ham), health, justice for women.12 indeed, marriage is a constitutional right mandated by the constitution that every child has the right to form a family and give birth to offspring. then there should not be a single prohibition 10 xavier nugraha, risdiana izzaty, and annida aqiila putri, “rekonstruksi batas usia minimal perkawinan sebagai bentuk perlindungan hukum terhadap perempuan (analisa putusan mk no. 22/puu-xv/2017),” lex scientia law review 3, no. 1 (2019): 40–54. 11 ibid. 12 s indrawati and a b santoso, “perspektif undang-undang nomor 16 tahun 2019 tentang perkawinan terhadap batas usia melakukan perkawinan,” amnesti jurnal hukum 2 (2020): 2–5. paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia | 185 volume 4, issue 2, december 2021 : 182 – 194 for a person to be able to get married as long as the provisions regarding legal marriages are fulfilled based on the marriage law but related to child marriage, it is only natural that the age limit for marriage conditions are regulated as a means of control for the state.13 likewise, the constitutional court (mk) position is only given the authority to examine a normative provision vertically so that the court cannot provide a legal logic to the law that is equivalent to the one it is testing, causing polemics against other laws. the mandate of legislation has full authority to adapt to different regulations. still, the changes are made following interests without seeing and considering priority facts as the basis for these changes. 2. marriage law legislation process one of the main factors as a legal basis is based on the decision of the constitutional court (mk) as an instrument for changing the law mandated by law number 12 of 2011 concerning the establishment of legislation. therefore, the gap in forming a normative horizontal marriage law is not fully accommodated, including civil law for children aged at least 18 years, civil registration for children aged 18 years, and the health side is at least 21 years old. of the several age choices regulated by law, there are inconsistencies in the size of a child's youth so that the change is floating because of the many age variants as a provision for a child's maturity. changes in the marriage law that the government's basis for a child to marry at the age of 16 years, a child is not mentally sufficient, fulfilling education, and health after pregnancy. in addition, the age of 16 is not yet closely related to the right to get 12 years of schooling 14. however, changes to the age limit were made by legislators beyond the age of child protection which set the standard 18 years. tirmizi that the community's paradigm that understands the size of maturity is different from the perspective of health and law. community parameters regarding the scope of maturity are when a child has met financial needs, physical changes have matured, pregnant out of wedlock, and mindset society's own 15. therefore, lawmakers' change in the minimum age is a phenomenon that can be realized as the basis that the practice of underage marriage should not be resolved by changing the substance of the law. instead, the implementation of resource utilization from the central and regional levels to remote areas is used as an instrument to overcome community practices, especially young marriage. andi yaqub said that inequality occurred in the community, not because of regulatory factors. still, the involvement of extension workers was not maximal in 13 jihan anjania aldi, elma putri tanbun, and xavier nugraha, “tinjauan yuridis kewenangan dewan kehormatan penyelenggara pemilu (dkpp) dalam menciptakan pemilu yang demokratis di indonesia,” jurnal hukum de’rechtsstaat 5, no. 2 (2019): 137–147. 14 kumparan, alasan pemerintah ubah usia minimal perempuan menikah jadi 19 tahun (jakarta, 2019). 15 tirmidzi, “kajian analisis undang-undang no. 16 tahun 2019 …,” usrah, volume 1, no, 1 tahun 2020 1, no. 16 (2019): 38–48. 186 | paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia volume 4, issue 2, december 2021 : 182 – 194 contacting the community to provide assistance and special education related to families and children 16. b. implications of law no. 16 of 2019 on marriage practices data from unicef that the practice of child marriage that among 24 provinces there are 11 provinces has increased every 2015-2018 against the practice of child marriage is still young 17 illustrated as in table 1: table 1. increase in child marriage in indonesia according to unicef province before enhancement north maluku 10,01% 13,36% sulawesi average 14% average 19% west sulawesi 14 % 19,43% central and east kalimantan 11,54% 19,13% ntb, jawa, bali 14,48% from the presentation of the practice of child marriage, the average age of those who practice this practice is in the age group > 15, > 16, > 18 years, the majority is practiced by the female gender group 18. considering the factor of the average age of child marriage, the change in the legal substance of the latest article 7 paragraph 1 marriage law was carried out without looking at field data as a sociological basis for changes to the law. so that the change in legal substance is a negative discourse regarding the practice of marriage. according to waqiah, the child's legal position difference before and after the change is still postulated with strict provisions. however, this basis is still put forward in urgent conditions to ascertain whether it is acute or not; this is rarely done by law enforcement officials and can even be played by law enforcement officials to legalize early marriage on the basis of court decisions 19. then the amendments to article 7, paragraph 1 of the marriage law based on data on the age of children who apply for a marriage dispensation based on data the average age is 14.5 years for girls and 16.5 years for boys. then the divorce rate is decided to reach 500,000 or about 24% of the total divorce. decisions are known to be married at the age of children and indicate a high divorce rate for women who are married under the age of 18 (eighteen) years. so that public awareness is needed as a basis for reducing the entity of marriage at an early age, including the legal culture of the community 20. 16 andi yaqub, iswandi, and jabal nur, “reconstruction of the sakīnah family criteria during the covid-19 period” 31, no. 1 (2021): 1–24. 17 gaib hakiki et al., pencegahan perkawinan anak percepatan yang tidak bisa ditunda, badan pusat statistik, 2020. 18 ibid. 19 siti qomariatul waqiah, “diskursus perlindungan anak perempuan di bawah umur pasca perubahan undang undang perkawinan,” an-nawazil 1, no. 2 (2019): 65–79. 20 nahdiyanti, yunus ahyuni, and qamal nurul, “implementasi perubahan kebijakan batas usia perkawinan terhadap perkawinan di bawah umur,” journal of lex theory 2, no. 1 (2020): 116–128. volume 4, issue 2, december 2021 : 182 – 194 paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia | 187 the problem with the legislation explicitly regulating this latest marriage is that such changes will pose new problems in overcoming the age of marriage. amri and khalidi said the difference in the age limit for marriage rather than lawmakers did not formulate the impact if there was a violation such as criminal sanctions as a form of emphasis so that the practice of early marriage remains a trend among children. the horizontal relationship in the law-making marriage law is only based on law number 23 of 2014 on child protection 21. therefore, on this basis, the legislators only negate the normative horizontal and vertical provisions as the main components without studying the social impacts that will be caused. apart from that, sociological facts are also only based on minority cases in the community without looking at the factors driving the practice of early marriage. the implication of changing the age limit of article 7, paragraph 1 of the marriage law is that the ngamprah religious court has impacted changing the minimum age limit, increasing the application for marriage dispensation from 2019-2020 significantly. the representation of marriage dispensation applications in 2019 recorded 81 cases of early marriage, and in 2020, there were 44 cases at the beginning of the year. therefore, the ngamprah religious court stated that changing the minimum age limit for a child has a significant impact on increasing the practice of early marriage 22. looking at the data on the practice of underage marriage since the age limit of 16 years and 19 years after these changes has a negative impact on the course of marriage at an early age. c. inefficient participation of the office of religious affairs (kua) minimizing the practices of early marriage that kua's participation has a central role in suppressing the number of underage marriages because kua is a line that has direct contact with the community and has tools such as extension workers to educate the public. but this contrasts with what oktavia said that public knowledge about the risks of marriage at a young age is still below average 23. thus, fieldwork such as counseling, socialization of the marriage law, and integration with other agencies as supporting factors are also not appropriately utilized. likewise, according to daryus, the kua has a role in increasing the socialization of the law to the community. because not all levels of society understand and even know about the position of the marriage law and similarly in anticipating the practice of underage marriage if only looking at the administrative completeness of a child who wants to marry. these factors 21 aulil amri and muhadi khalidi, “efektivitas undang-undang nomor 16 tahun 2019 terhadap pernikahan,” jurnal justisia: jurnal ilmu hukum, perundang-undangan dan pranata sosial 6, no. (1) (2021): 85–101. 22 pengadillan agama ngamprah, pengaruh undang-undang nomor 16 tahun 2019 tentang perubahan atas undang-undang nomor 1 tahun 1974 tentang perkawinan terhadap jumlah perkara dispensasi nikah di pengadilan agama ngamprah (ngamprah, 2020). 23 oktavia et al., “pengetahuan risiko pernikahan dini pada remaja umur 13-19 tahun.” volume 4, issue 2, december 2021 : 182 – 194 188 | paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia have no effect and impact on the prevention because there is still a way to legalize the practice by applying for a marriage dispensation to the court 24. najib said that overcoming the practice and minimizing it needed to be integrated from various components, namely health workers, religious leaders, community leaders, government, and families. this integration process can be created as a form of education so that the law can be implemented following the purpose of its formation 25. this integration process is not found as a form of unity in overcoming the impact of underage marriage so that the gap increases and takes place among the community. likewise, data from the ministry of religion related to the effectiveness of the office of religious affairs (kua) throughout indonesia does not run optimally because of the total number of kua only about 10% are functioning optimally to provide counseling. so that the public's understanding of the basics of marriage is based on the law, both in terms of the consequences of marrying a child young and the boundaries are not well known. this understanding occurred because of the lack of socialization of the previous law, and the legislators made changes 26. the role of kua and its instruments is a factor or main in minimizing the practice of marriage at an early age. kareema and garfes said that the phenomenon in the field regarding the exercise of underage marriage has a variety of motives, including 1) the age range of children and parents are not far apart, 2) there is a third person 3) they are considered to know nothing about the law, 3) impact of underage marriage and 4) changing locations 27. from the factors behind that, the executive officers who are domiciled in the regions do not understand the series of laws regarding the impact and legal position in the force so that underage marriage occurs and is significant. based on these data, explain that the main factor is not influenced by the age limit of 16 years, which is more problematic than before. still, the implementation of the law and explaining the substance to understand a factor is one of the main factors. especially the existence of the kua, which always relies on the judicial function as the last step to get the legal umbrella of a child as to legal standing. the two components that the kua and the court integrate are that, of course, the final solution is to give a decision to carry out the practice of underage marriage, because of course, each applicant will provide concrete testimony and the negative impact of a child so that the goal of underage marriage continues. 24 erlin el daryus, “peranan pegawai pencatat nikah (ppn) dalam menanggulangi perkawinan di bawah umur (studi di kantor urusan agama (kua) kecamatan tanjung raja kabupaten lampung utara)” (universitas islam negeri raden intan lampung 1439h, 2017). 25 najib najib, “beberapa aspek kependudukan yang mempengaruhi pernikahan di bawah umur,” pro health jurnal ilmiah kesehatan vol. 1 1 n, no. 1 (2019): 19–24. 26 supianto supianto and nanang tri budiman, “pemahaman masyarakat terhadap pembatasan usia minimal untuk melangsungkan perkawinan,” jurnal rechtens 9, no. 1 (2020): 77–90. 27 tsania kareema and harry pribadi garfes, “peran kua dalam meniminimalisir kasus pernikahan dini di kecamatan sumajaya kota depok,” dirasat 15, no. 1 (2020): 62–71. volume 4, issue 2, december 2021 : 182 – 194 paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia | 189 d. marriage law: negative impact on emphasizing young marriage rates data on underage marriage was still significant before the minimum age limit was changed to 19. it continued to increase every year and the projected average divorce rate for a child who married at a young age. the form of revision carried out by lawmakers does not look at the influencing factors so that the practice continues to increase. according to pratiwi, early marriage is carried out because of internal and external impulses that affect a child. internal factors are the encouragement of family and parents because they think marriage is a match and an opportunity for children, and internal factors are influenced by colleagues because they see their friends getting married and even things that a child does not want because they are pregnant out of wedlock 28. these factors can basically be used as benchmarks before changes to the law itself are made to decide whether the problematic marriage law is the legal substance, legal structure, and/or legal culture. conclusion therefore, it can be traced that the problems that occurred in law no. 16 of 2019 concerning particular marriage article 7 paragraph 1, borrowing from friedman the legal system theory, which is divided into three indicators, namely legal substance, legal structure, and legal cultural 29. so these three indicators are as follows: 1. revision of legal subtance of marriage law article 7 paragraph 1 the revision of article 7 paragraph 1 regarding the age limit of children is not a concrete solution to minimize the practice of underage marriage. still, it will have a negative impact on the number of young marriage entities because it has standardization that exceeds the limits of the child protection law and the category of adolescent age in the regulations. according to talli, changing the substance of the law will make it easier for institutions or law enforcement to carry out legal processes following the rules 30. however, looking at the position of the material and formal legal substance of the marriage law, it can be seen that in material direction. changes were made significantly and exceeded the age limits of adolescence and ignored a component of data about factors that influence the increase in the volume of underage marriages. likewise, formally, the legal position is only based on the will and participation from below to the obstacles faced by law enforcement as well as the components of the agency in direct contact with the community. one of the participations that can be used as a basis is that the increase in underage marriage every year always experiences a significant boost as well as various studies 28 bintang agustina pratiwi et al., “analisis pernikahan usia dini di kabupaten bengkulu tengah tahun 2017,” jurnal kesmas asclepius 8, no. 5 (2019): 55. 29 lawrence m. friedman, the legal system a social science perspective (new york: russell sage foundation, 1987). 30 abdul halim talli, “dosen fakultas syariah dan hukum uin alauddin makassar dalam bidang hukum acara peradilan agama. jurnal al-qadāu volume 2 nomor 1/2015 |,” journal al-qadāu vol. 2, no. 2 (2015): 76–93. volume 4, issue 2, december 2021 : 182 – 194 190 | paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia which state that underage marriage is based on association, parental will, and the economy, as well as a lack of understanding of the components of the marriage law. therefore, this basis is not a change in a substance as the primary reference for solving problems in the community even though the child protection law regulates the ideal age of 18 years. instead, activate human resources and integrate with other agencies. together, provide education to the public on the negative impact of underage marriage. 2. problems with institutional structures changes in the substance of article 7 paragraph 1 regarding the minimum age limit of 19 years for children are a failure of lawmakers to understand other factors as a form of consideration of sociological facts as a basis so that the structural function is not a significant problem in preventing underage marriages, yaqub state that one of the factors in the ongoing gap in the field for the existence of family harmonization was the involvement of kua and extension workers providing education for the future of the family 31. therefore, with the less than optimal involvement of the kua and its tools, most of the practices are not following the law. the structural function is the way to print underage marriages. basically, the legality lies in the horizontal position of the agency, namely between the kua and the religious courts as the printers of underage marriages. because a child is based on a recommendation from the kua, and then the court gives a legal decision as to legal standing 32. so structurally, regulations and arrangements and sanctions should be the main point, not the minimum age to be increased because it will have an impact on dispensation for marriage in court. 3. the culture of the people is less aware of the marriage law changes in the minimum age limit to 19 years law number 16 of 2016 concerning marriage that sociological facts are only based on human rights such as the fulfillment of fundamental rights without looking at other facts as the basis for the legal logic of the marriage law. friedman said that the legal culture is not as long as it is realized in written law but is realized as a form of treatment to the community by utilizing human resources in those who have a role in the field. asnawi said that the positivistic flow of law could not as long as it can create justice and legal benefits for the community because this is done following the political will of the legislators 33. so observing the change in the age limit is based on the political interests of gender without considering the negative impacts with the age limit of 19 years. the 31 yaqub, iswandi, and nur, “reconstruction of the sakīnah family criteria during the covid-19 period.” 32 janah, “dispensasi nikah di bawah umur dalam hukum islam pernikahan adalah hal kesepakatan sosial antara seorang lakidapat tumbuh , kuat , berkembang dan maju . jadi pernikahan bukan berdasarkan pasal 1 undang-undang nomor 1 tahun 1974 lahir batin antara seorang.” 33 habib shulton asnawi, “politik hukum putusan tentang status anak di luar nikah : upaya membongkar positivisme hukum menuju perlindungan ham,” jurnal konstitusi vol. 10 no, no. 2 (2013): 244. volume 4, issue 2, december 2021 : 182 – 194 paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia | 191 ongoing positivistic culture and its enormous influence on this marriage law's existence is that problem solving must be based on binding rules. in terms of the upstream issue of the practice of underage marriage, many researchers have revealed that early marriage is based on the legal culture of the people who do not understand the substance and its impact. so that the reform should take place by increasing community capacity and implementing the law with creativity, starting from the primary education sector to the primary education sector. follow-up and sustainable family education as the main program 34. likewise, the implication of changing the minimum age of 19 years to get married will impact increasing the practice of underage marriage with the legal standing of court decisions. thus, the marriage law cannot provide an answer and instead becomes an alternative or a way for children to practice marriage 35. so that child protection efforts will be in vain and do not affect having a permanent legal umbrella. even though muhajir state, the protection procedure was initiated as a form of fulfilling the necessities of life, it is human nature 36. however, it will not have a positive impact on minimizing the practice of underage marriage because it requires integration and synergy across institutions as an instrument in prevention based on community education (non-formal). similarly, solomon's narrative and similar research regarding the age limit of a child, the majority think that it has reached the point of benefit 37; 38. but forgetting the impact of a minimum age of 19 years will have implications for law enforcement agencies (the judiciary) and the community. likewise, wijaya and thai state that law number 16 of 2019 has been adequate and is supported by dispensation tools 39. the built paradigm is that there is a failure to understand a legal, cultural substance in the community with the support of essential data related to underage marriage. 34 ana latifatul muntamah, dian latifiani, and ridwan arifin, “pernikahan dini di indonesia : faktor dan peran pemerintah ( perspektif penegakan dan perlindungan hukum bagi anak )” 21, no. 1 (2016): 1–12. 35 muhajir, “prosedur dan penyelesaian dispensasi nikah dibawah umur di pengadilan agama,” jurnal studi islam vol 6 no 2 (2019): 133–150. 36 ibid. 37 rian rosita sulaeman, “hak pendidikan anak dan kesadaran hukum masyarakat mengenai larangan pernikahan di bawah umur,” diktum: jurnal syariah dan hukum vol. 17 no, no. 2 (2019): 211–222. 38 iwan romadhan sitorus, “usia perkawinan dalam uu no. 16 tahun 2019 perspektif maslahah mursalah,” jurnal nuasa xiii, no. 2 (2019): 190–199. 39 himawan tatura wijaya and erwin jusuf thaib, “efektivitas pelaksanaan undang-undang republik indonesia nomor 16 tahun 2019 tentang perubahan atas undang-undang nomor 1 tahun 1974 tentang perkawinan di kabupaten pohuwato,” as-syams: journal hukum islam 1, no. 1 (2020): 38. volume 4, issue 2, december 2021 : 182 – 194 192 | paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia reference aldi, jihan anjania, elma putri tanbun, and xavier nugraha. “tinjauan yuridis kewenangan dewan kehormatan penyelenggara pemilu (dkpp) dalam menciptakan pemilu yang demokratis di indonesia.” jurnal hukum de’rechtsstaat 5, 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no., no. 186 (2018): 239–248. pratiwi, bintang agustina, wulan angraini, padila, nopiawati, and yandrizal. “analisis pernikahan usia dini di kabupaten bengkulu tengah tahun 2017.” jurnal kesmas asclepius 8, no. 5 (2019): 55. setiasih, widihartati. “analisis putusan dispensasi nikah dibawah umur dalam perspektif perlindungan perempuan.” jurnal ppkm (2017): 235–245. sitorus, iwan romadhan. “usia perkawinan dalam uu no. 16 tahun 2019 perspektif maslahah mursalah.” jurnal nuasa xiii, no. 2 (2019): 190–199. sulaeman, rian rosita. “hak pendidikan anak dan kesadaran hukum masyarakat mengenai larangan pernikahan di bawah umur.” diktum: jurnal syariah dan hukum vol. 17 no, no. 2 (2019): 211–222. supianto, supianto, and nanang tri budiman. “pemahaman masyarakat terhadap volume 4, issue 2, december 2021 : 182 – 194 194 | paradoxical implications of article 7 paragraph 1 of the marriage law in indonesia pembatasan usia minimal untuk melangsungkan perkawinan.” jurnal rechtens 9, no. 1 (2020): 77–90. talli, abdul halim. “dosen fakultas syariah dan hukum uin alauddin makassar dalam bidang hukum acara peradilan agama. jurnal al-qadāu volume 2 nomor 1/2015 |.” journal al qadāu vol. 2, no. 2 (2015): 76–93. tirmidzi. “kajian analisis undang-undang no. 16 tahun 2019 ….” usrah, volume 1, no, 1 tahun 2020 1, no. 16 (2019): 38–48. waqiah, siti qomariatul. “diskursus perlindungan anak perempuan di bawah umur pasca perubahan undang-undang perkawinan.” an-nawazil 1, no. 2 (2019): 65–79. wijaya, himawan tatura, and erwin jusuf thaib. “efektivitas pelaksanaan undang-undang republik indonesia nomor 16 tahun 2019 tentang perubahan atas undang-undang nomor 1 tahun 1974 tentang perkawinan di kabupaten pohuwato.” as-syams: journal hukum islam 1, no. 1 (2020): 38. yaqub, andi, iswandi, and jabal nur. “reconstruction of the sakīnah family criteria during the covid-19 period” 31, no. 1 (2021): 1–24. yunus, muh. idris, dan mukhoyyah. “pernikahan di bawah umur pada masyarakat pesisir malangke.” al-ahwal al-syakhsiyah, iai al-qolam 3, no. 2 (2020): 43–51. volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 | 147 interpretation of judges in supreme court decision number: 46 p/hum/2018 muslim andi yusuf; dharma fidyansari universitas cokroaminoto palopo email: muslimandiyusuf05@gmail.com abstract this research was conducted to determine the interpretation of judges in the supreme court decision no. 46 p/hum/2018. this study uses a normative type of research with an approach to identifying legislation and literature that is relevant to research. data collected from primary, secondary, and tertiary legal materials are analyzed qualitatively, arranged systematically, and presented descriptively. the results of this study indicate that in the supreme court decision number 46 p/hum/2018 which judges that article 4 paragraph (3), article 11 paragraph (1) letter d and appendix model b.3 election commission regulation number 20 of 2018 is contradictory to law number 7 of 2017 concerning general election in conjunction with law number 12 of 2011 concerning formation of regulations and judges’ considerations based on the interpretation of the testing object test stones namely the sentences in the text of law number 7 of 2017 concerning general elections and law number 12 of 2011 concerning formation of legislation as a guide so that the interpretation of judges is based on exploring the meaning contained in the statement written norm text by studying the book in sentence structure or its relationship with other rules. keywords : supreme court ruling; judicial interpretation; election. introduction election, as one of the instruments of democracy, has an essential function in the process of nation and state, namely the rotation of power.1 a democratic state change of power is a must that is carried out periodically as an indicator of the quality of democracy,2 and indonesia as a democratic country entrusted with the general elections in the 1945 constitution of the republic of indonesia. the post-amendment constitution has provided the basis for the administration of the state and an orderly arrangement of communal life. this is reflected in recognition of people’s sovereignty, which is carried out according to the constitution (article 1 paragraph 2 of the 1945 constitution) as well as the confirmation that the state of indonesia is a constitutional state (article 1 paragraph 3 of the 1945 constitution). the basic principles of a democratic rule of law are realized in the form of recognition and guarantee of essential human rights in the democratic process, regulation of the mechanism for electing 1junaidi, veri. (2010). pelanggaran sistematis, terstruktur dan masif: suatu sebab pembatalan kehendak rakyat dalam pemilihan kepala daerah tahun 2010. jurnal konstitusi, mahkamah konstitusi ri, 7(5), p. 46. doi: https://doi.org/10.31078/jk%25x 2respationo, h. m. soerya. (2013). pemilihan kepala daerah dalam demokrasi electoral. masalah-masalah hukum, universitas diponegoro, 42(3), p. 359. doi: https://doi.org/10.14710/mmh.42.3.2013.356-361 https://creativecommons.org/licenses/by-sa/4.0/ mailto:muslimandiyusuf05@gmail.com volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 148 | people’s representatives, and public positions as a form of people’s sovereignty, as well as structuring state institutions based on the principle checks and balances.3 the readiness of all parties determines the quality of the implementation of the general election.4 some essential issues which are always discussed concerning the general election are the problems of the electoral system and mechanism, political parties and election participants, election organizers as well as the disputed court of election results.5 the principle of popular sovereignty is realized through general elections to create political representation in political institutions; the people can determine their participation as voters and run for parliamentary elections and national leaders who will fight for the welfare of the people. because of article 22 e paragraph (1) and paragraph (5) of the 1945 constitution of the republic of indonesia related to the mandate of the general elections in the constitution held under law number 7 of 2017 concerning general elections. the election commission has the duties, authorities, and obligations stipulated in article 12, article 13 and 14 of law number 7 of 2017. among these tasks is to determine election participants following article 13 paragraph (3) of law number 7 of 2017. in carrying out their duties, authorities, and obligations, the general election commission is demanded to become an emb quality as an instrument of realizing people’s sovereignty in the electoral procession so that the implementation of people’s political rights to vote or be elected directly can be held in a democratic atmosphere. the elections in 2019 took place in contrast to the previous elections, which were held separately between the dpr, dpd, dprd, and presidential elections. elections in april 2019 were held simultaneously in the election of legislative and presidential candidates by the decision of the constitutional court of the republic of indonesia number 14/puu-xi/2013. towards the electoral stage, the general election commission establishes a policy in the election commission regulation number 20 of 2018 which prohibits ex-convicts of corruption cases from advancing as legislative candidates, in the third part concerning the requirements for prospective candidates for paragraph 7 letter h ie if those who are allowed to nominate as parliamentary candidates are not former convicted drug dealer, child sex offender, and corruptor. election commission regulation number 20 the year 2018 which prohibits ex corruption convicts from advancing as legislative candidates to become controversial,6 because 3asshiddiqie, jimly. (2009). menuju negara hukum yang demokratis. jakarta: pt. bhuana ilmu populer, p. 377. 4mamonto, moch. andry wikra wardhana. (2019). legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election). substantive justice international journal of law, universitas muslim indonesia, 2(1), p. 4. doi: http://dx.doi.org/10.33096/substantivejustice.v2i1.25 5asshiddiqie, jimly. (2009). op. cit., p. 379. 6hadi, syafiul, & wijanarko, tulus. (2019, 29 januari). hari ini, kpu umumkan caleg yang mantan narapidana. tempo.co. retrieved from https://pemilu.tempo.co/read/1169965/hari-ini-kpu-umumkan-caleg-yang-mantan narapidana http://dx.doi.org/10.33096/substantivejustice.v2i1.25 volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 | 149 in article 240 paragraph (1) and (2) of law number 7 of 2017 concerning election, candidates for legislative members who have been sentenced to prison must fulfill the requirements in paragraph (1) letter g, which is that they have never been sentenced to jail based on a court decision has obtained permanent legal force for committing a crime that is threatened with imprisonment for 5 (five) years or more, unless openly and honestly telling the public that the person concerned is a former convict. in article 240 paragraphs (1) and (2) of law number 7 of 2017 regarding election, there is no prohibition of ex-convicts from participating as legislative candidates. still, ex-convicts who will join as parliamentary candidates must be open and honest in telling the public that concerned is a former convict. judging from the legislation hierarchy, there is a vertical synchronization between the election commission regulation number 20 of 2018 and law number 7 of 2017 regarding elections. the general election commission should make regulations referring to higher rules. the existence of article 7 letter h of the election commission regulation number 20 of 2018, which prohibits ex-corruption prisoners from participating as legislative candidates in the 2019 election, makes the ex-convicts of corruption not fulfill the requirements as election participants based on the election commission regulation number 20 of 2018. this then makes some citizens who feel aggrieved by their political rights submit a material test of the election commission regulation number 20 of 2018 to the supreme court of the republic of indonesia because it is considered contrary to law number 7 of 2017 concerning general elections and other legislation. the supreme court of the republic of indonesia in the decision 46, p/hum/2018 with the applicant jumanto, received the material test related to the election commission regulation number 20 of 2018, then with the judgment of the material test so that ex convicts of corruption can nominate themselves as legislative candidates. this becomes a problem when a controversial situation occurs in the prohibition of ex-convicts as parliamentary candidates, where there are parties who are pros and cons of the ban of ex prisoners as legislative candidates have stated their respective arguments, therefore it is essential to review the interpretation of judges in the supreme court’s decision number 46 p/hum/2018 in the material test of the election commission regulation number 20 of 2018. method this study uses a type of normative legal research conducted with approaches to legal norms or substance, legal principles, legal theory, legal arguments, and comparative law.7 material collected from primary, secondary and tertiary legal materials was analyzed qualitatively, arranged systematically and presented descriptively to find out the interpretation of judges in the supreme court decision number 46 p/hum/2018. 7nawi, syahruddin. (2014). penelitian hukum normatif versus penelitian hukum empiris. makassar: pt. umitoha ukhuwah grafika, p. 6. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 150 | analysis and discussion a. election perspective in the indonesian constitution and law number 7 the year 2017 regarding elections democratic countries need norms and practical references and theories from countries whose societies have advanced in democracy. these norms and recommendations must be legitimized as the constitution of a state in exercising its power. the unitary state of the republic of indonesia has a constitution known as the 1945 constitution freedom of expression without threat, freedom to access information and freedom of association.8 the constitution of the basic law is as a grantor and boundary, as well as on how the power of the state must be exercised.9 the concept of a modern democratic state, the constitution is a necessity that is not understood as a limitation of the authority of the ruler or king, but the law is recognized as a guideline for the administration of state power to achieve the objectives of the state. the unitary state of the republic of indonesia has set the principles of fair elections in its constitution. to uphold the general election as a process of government change or rotation of the power of the unitary state of the republic of indonesia has set it in article 22 e of the constitution,10 and has mandated the general election commission as the organizer of the election to ensure and guarantee the process of holding direct, general, free, confidential, honest elections and also guarantee the holding of elections every five years. the election implementation is then regulated in law number 7 of 2017 concerning general elections, which becomes a guideline for kpu as the election organizer. the kpu’s authority stated in article 13 of law no. 7 of 2017 has explicitly stated, and in article 14 letter b, the kpu has also expressly stated its obligations.11 in addition to treating the election participants fairly and equally in the nominations of members of the dpr, dpd, provincial dprd and regency/ city dprd, each candidate must fulfill the requirements as stated in article 240 paragraph (1) and (2) of law number 7 of 2017 concerning elections. for legislative candidates who have been sentenced to prison must fulfill the conditions stated in paragraph (1) letter g.12 8ubaedillah, a., & rozak, abdul. (2012). pendidikan kewarganegaraan (civic education): pancasila, demokrasi, ham, dan masyarakat madani. jakarta: kencana prenada media group, p. 81. 9ibid., p. 102. 10pasal 22e undang-undang dasar negara republik indonesia tahun 1945. 11pasal 14 undang-undang republik indonesia nomor 7 tahun 2017 tentang pemilihan umum (uu no. 7 tahun 2017). lembar negara republik indonesia tahun 2017 no. 182. tambahan lembar negara no. 6109. 12pasal 240 ayat (1) uu no. 7 tahun 2017. volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 | 151 b. review of judicial power and judge interpretation a judge can do judicial interpretation and legal discovery because not all statutory provisions are in a clear form so that there is an opportunity for interpretation of leemten in hetrechvage and norm.13 judges in making decisions have their interpretations in finding the law, and this is confirmed in article 5 paragraph (1) of law number 48 the year 2009 concerning judicial power. every person in expressing an opinion must use an argument that is colloquially called “reason.” likewise, a judge in deciding a case must present a piece of evidence, both related to the subject matter and the branch of the case. these arguments must be formulated and arranged carefully, coherently, systematically using first and correct legal language. then the legal arguments in the judge’s decision are called legal considerations or legal reasoning. legal reasoning is used in two meanings, namely in the broad and narrow sense, namely in the general sense, the legal argument is related to the psychological process carried out by the judge, to decide on the case it faces. legal reasoning study, in a broad sense, involves aspects of psychology and biography. legal reasoning, in the narrow sense, is related to the argument underlying a decision. this study consists of the study of the logic of a decision and relates to the types of discussions, the relationship between reason and determination, as well as the accuracy of the rights or considerations that support the decision. there were no judges or lawyers, who began to argue from a vacuum situation,14 a legal argument always starts with positive law. positive law is not a closed or static state but is an ongoing development. from a positive law provision, jurisprudence will determine new norms. people can reason from the favorable legal requirements of the principles contained in positive law to make new decisions.15 legal arguments, are “reasons in the form of explanatory explanations outlined clearly, in the form of a series of logical statements, to strengthen or reject an opinion, standpoint or idea, relating to legal principles, legal norms and concrete legal rules, as well as the legal system and legal discovery” a meaningful argument, only built on the basis of logic, is a “condition sine qua non” so that a decision can be accepted, that is, if it is based on a logical process, in accordance with a formal logic system which is an absolute requirement in arguing.16 logic, in other terms, is called mantic, and different 13hadjon, philipus m., & djatmiati, tatiek sri. (2014). argumentasi hukum (legal argumentation/legal reasoning): langkah-langkah legal problem solving dan penyusunan legal opinion. yogyakarta: ugm press, p. 24 14ibid., p. 17. 15isnantiana, nur iftitah. (2017). legal reasoning hakim dalam pengambilan putusan perkara di pengadilan. islamadina: jurnal pemikiran islam, universitas muhammadiyah purwokerto, 18(2), p. 50. doi: http://dx.doi. org/10.30595/islamadina.v18i2.1920 16ibid., pp. 50 – 51. https://creativecommons.org/licenses/by-sa/4.0/ http://dx.doi/ volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 152 | opinions state that philosophy is the study of methods and laws used to distinguish valid reasoning from reasoning17 the interpretation section is one method of legal discovery that provides a clear explanation of the text of the law so that the scope of the rules can be established in connection with certain events. the interpretation by the judge is an explanation that must lead to an acceptable implementation by the public regarding the rule of law for real events. this interpretation method is a means or tool to find out the meaning of the law. the justification lies in its use to implement practical provisions and not in the interests of the method itself. therefore it must be assessed with the results obtained.18 there are several methods of interpretation that are commonly applied:19 1. grammatical or contextual interpretation, by learning and using sentence relationships. 2. systematic interpretations, contexts, by studying systems and legal formulations include: a. reasoning analogy and reasoning a contraction. the use of a contravention is to ensure that something is not stated by law in reverse. whereas analogy means the extension of the rule of law. b. extensive and restrictive interpretation (earlier weakest forms are logically no different). c. legal refinement or rechtverfijning or specialization of law. 3. historical interpretation by learning: a. legal history, context, past developments of specific religions such as the criminal code, bw, roman law and so on. b. the history of the law, the context, the explanations of the legislative process in the development of the law. 4. teleological interpretation, context, by way of social interaction. broadly interpretations can be divided into 2 (two) types, namely literal interpretation and functional interpretation. the literal interpretation uses the sentences of the rules as a handle so that they do not come out of the text (litera egis). functional interpretations are also called independent interpretations because they do not fully bind to the sound and content of written rules. functional interpretations attempt to understand a rule by using other sources that are thought to provide greater clarity.20 17mundiri. (2006). logika. jakarta: pt. raja grafindo persada, p. 2. 18mertokusumo, sudikno. (2016). mengenal hukum: suatu pengantar. yogyakarta: cahaya atma pustaka, pp. 211 – 212. 19dirdjosisworo, soedjono. (2012). pengantar ilmu hukum. jakarta: rajawali pers, pp. 156 – 157. 20safaat, muchamad ali, widiarto, aan eko, & suroso, fajar laksono. (2017). pola penafsiran konstitusi dalam putusan mahkamah konstitusi periode 2003 – 2008 dan 2009 – 2013. jurnal konstitusi, mahkamah konstitusi ri, 14(2), pp. 234 – 261. doi: https://doi.org/10.31078/jk1421 volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 | 153 to understand more fully the related research, it is necessary to know that the interpretation of the law: 1. interpretation according to the meaning of words or terms (taalkundige interpretatie). the judge must find the meaning of the word law by opening a language dictionary or requesting a linguist’s statement. even if that is not enough, the judge must study the word in sentence structure or its relationship with other regulations. this interpretation is the first step taken or a beginning attempt to interpret.21 2. historical interpretation how this historical interpretation is made by (i) interpret according to the history of law (rechtshistorische interpretatie), and; (ii) explain the stipulation of a provision (wetshistorische interpretation) historically. historical understanding is a broad interpretation or includes the preceding description. if the examination according to the history of the determination is done by examining the reports of debate in its formulation, the letters sent are related to the activities of the formulation, etc., while the interpretation according to the history of the law is carried out to investigate the origin of the text of the legal system that was once enacted, including also examining the source of the manuscript from other legal systems that are still in force in other countries. 3. for judges, the meaning of historical interpretation is based on practical needs. in general, what is essential for judges is to know the intentions of the drafted law. law is dynamic, and the development of legislation follows the evolution of society. therefore, the meaning that can be given to a word in a positive law text now differs from its purpose when it was determined. hence also, interpretation according to history is essentially just a guide.22 however, the interpretation of history not only examines treatises as stories of the formulation of manuscripts, but also examines the history of social, political, economic, and other social events when the formulation of the manuscript is discussed. 4. systematic interpretation systematic interpretation is interpretation according to the existing system in the formulation of the law itself (systematische interpretative). systematic interpretation can also occur if one legal text and another legal text, in which both regulate the same thing, are related and compared with each other. if for example what is interpreted is an article of a law, then the same provisions, let alone one principle in other regulations, must be used as a reference.23 5. sociological interpretation. every interpretation of the law must end with a sociological explanation so that the judge’s decision is made following the real conditions in society. law is a common symptom, so every regulation has a social 21khalid, afif. (2014). penafsiran hukum oleh hakim dalam sistem peradilan di indonesia. al 'adl : jurnal hukum, universitas islam kalimantan, 6(11), p. 16. doi: http://dx.doi.org/10.31602/aa.v6i11.196 22ibid. 23ibid., p. 17. http://dx.doi.org/10.31602/aa.v6i11.196 volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 154 | duty that is legal certainty in community, where the social purpose of a provision cannot always be understood from the words formulated. therefore, the judge must look for it. sociological interpretation is a guarantee of the seriousness of the judge in making decisions because his decision can realize the law in a real atmosphere in society.24 6. authentic or official interpretation (authenteke or officiele interpretative). this authoritative interpretation is following the understanding expressed by the legislators in the law itself.25 for example, the meaning of the word described in the article or in the explanation. if you want to know what is meant in an article, then the first step is to see the explanation of that article. therefore, the explanation of the law is always published separately, namely in the supplement to the state gazette, while the text of the law in the official gazette. on the other hand hermeneutics is used as a method of interpretation that was originally a method of interpretation of the text, but in its development actually hermeutics is not only a method of interpretation of the text and delve into its literal content, but more than that hermeneutics tries to explore meaning by considering the horizon/horizon that surrounds the text. the horizon in question is the text horizon, author horizon and reader horizon.26 noting these three horizons, an interpretation or understanding becomes an activity of reconstruction and reproduction of the meaning of a text, besides tracking how a version was born by the author and what content enters into it. in addition, an interpreter always tries to regenerate the meaning following the situation and condition when the text is read or understood. thus, hermeunitika, as a method of interpretation, must always pay attention to three main components, namely writing, context, and contextualization efforts.27 the issue of what methods are used by judges in handling a concrete case, the legislators do not give priority to any of the methods in legal discovery. this means that the judge is given the freedom to choose what method is most suitable for handling the case at hand. the choice of legal discovery method is the judge’s authority. the choice of one method by the judge is based on what method is most convincing and the results are satisfactory in handling a case.28 progressive law is a concept of how to judge not only one but various ways. to make a clear description of progressive law, it is confronted with a positive-legalistic method of punishment, so that in the final method of punishment the law is implementing 24ibid. 25ibid. 26muwahid. (2017). metode penemuan hukum (rechtsvinding) oleh hakim dalam upaya mewujudkan hukum yang responsif. al-hukama': the indonesian journal of islamic family law, universitas islam negeri sunan ampel, 7(1), pp. 240 – 241. doi: https://doi.org/10.15642/alhukama.2017.7.1.224-248 27ibid., p. 241. 28ibid. volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 | 155 the law. this method of law is based solely on the law (alles binnen de kader van de wet) or spelling the law. here people do not think far except reading the text and its application, it looks like this way of punishment is like drawing a straight line between two points. one point is (article) the law and the other point is the facts that occur. everything runs linearly, so that the method of law is like an automatic machine, and is referred to as “hanteren van logicalche figuren” and as “a book of mathematics.”29 progressive punishment can also be interpreted as testing the limits of legal ability. if it is said that carrying out the law is to create justice in society, then the code is an effort to realize that justice. text law alone does not automatically create sentence. therefore people distinguish between truth according to the text (forma/ legal justice) and actual justice (substantial justice). justice is in the law, but it still needs to be found (het recht is in de wet, maar het moet nog gevonden warden). thus the code is not the same as applying the law, but rather an attempt to bring justice stored in it, so that is the meaning of testing the limits of legal ability.30 judges are not legislators because their job is to mediate or examine and decide. the task of making the law is in the realm of the legislature, and however, in the end, the judge determines what the law wants. the judge must decide based on the law, but in fact, he does not only spell the text of the law but also decides what is stored in the book. deciding the law is not done by reading the book (textual reading) but digging the moral behind it (good reading). thus the judge actually also makes the law at a higher level.31 here the judge does not perform an independent function in applying the law to concrete legal events. judges are merely mouthpieces of laws that cannot change or add to laws. this classic view maintained by montesquieu and kant is based on montesquieu’s basic mind that the legislators are the only source of positive law. for the sake of legal certainty, the legal unity and freedom of its citizens who are threatened by arbitrary actions of the judge, the judge must submit to the legislators. this view suggests the judiciary is nothing but a shaper of syllogism. the law is a major premise, a concrete event is a minor premise, while the judge’s decision is a conclusion or conclusion. a logical conclusion will not cover more than what is in the premises. likewise, a judge’s decision will not contain or include more than what is contained in the law relating to a concrete event. this is a typologically logical view.32 29rahardjo, satjipto. (2011). memahami hukum: dari konstruksi sampai implementasi. jakarta: pt. raja grafindo persada, p. 3. 30ibid., p. 4. 31ibid. 32mertokusumo, sudikno. (2016). loc. cit. volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 156 | c. decision of the supreme court number 46 p/hum/2018 the decision of the supreme court number 46 p/hum/2018 has granted the material test to the general election commission regulation (pkpu) number 20 of 2018, has canceled article 4 paragraph (3), article 11 paragraph (1) letter d and appendix model b.3 election commission regulation number 20 year 2018. ref article pkpu no. 20 year 2018 supreme court judgment no. 46 p/ hum/2018 1. article 4 paragraph (3) “in the selection of prospective candidates in a democratic and open manner as referred to in paragraph (2) does not include former convicted drug dealers, sexual crimes against children, and corruption” article 4 paragraph (3) pkpu no. 20 of 2018 has no binding legal force and is not generally valid, as long as the phrase “ex-convicted of corruption” contradicts a higher regulation, namely law number 7 of 2017 concerning general election in conjunction with law number 12 of 2011 concerning formation of laws and regulations -invitation. 2. article 11 paragraph (1) letter d “requirements for nominating candidates as referred to in article 10 paragraph (1) are in the form of:... (d) an integrity pact signed by the leadership of a political party in accordance with its level using the form of model b.3”. article 11 paragraph (1) pkpu no. 20 of 2018 does not have binding legal force and does not generally apply as a phrase in article 4 paragraph (3) pkpu no. 20 of 2018. 3. appendix model b.3 has no binding legal force and is not generally applicable table amar decision of the supreme court number 46 p/hum/2018 decision of the supreme court number 46 p/hum/2018 there are a number of considerations in deciding upon the judicial review. as the contents of the copy as follows: whereas the right to elect and be elected as a member of the legislature is a basic right in the political field guaranteed by the constitution, namely article 28 of the 1945 constitution of the republic of indonesia. the supreme court also sees that article 4 paragraph (3) of the election commission regulation number 20 of 2018 is in conflict with the provisions of article 240 paragraph (1) letter g of law number 7 of 2017 concerning general elections, which states that candidates for dpr, provincial dprd and regency/city dprd are indonesian citizens and must meet the requirements :33... (g) “have never been imprisoned based on a court decision that has obtained permanent legal force for committing a crime threatened with imprisonment of 5 (five) years or more, unless openly and honestly telling the public that the person concerned is a former convict”. 33putusan mahkamah agung republik indonesia nomor 46 p/hum/2013 tentang permohonan keberatan hak uji materiil atas pasal 4 ayat (3), pasal 11 ayat (1) huruf d, dan lampiran model b.3 pakta integritas pengajuan bakal calon anggota dpr/dprd provinsi/dprd kabupaten/kota, peraturan komisi pemilihan umum nomor 20 tahun 2018 tentang pencalonan anggota dewan perwakilan rakyat, dewan perwakilan rakyat daerah provinsi dan dewan perwakilan rakyat daerah kabupaten/kota. volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 | 157 whereas in the provisions of article 240 paragraph (1) letter g there is no norm that prohibits former corruption convicts from nominating themselves as candidates for dpr and dprd. the supreme court considers article 4 paragraph (3), article 11 paragraph (1) letter d and the model attachment b.3 regulation of the election commission number 20 of 2018 in principle has limited the political rights of someone who will run as a prospective legislative candidate in the general election. the considerations of the supreme court in terms of the formation of legislation containing article 4 paragraph (3), article 11 paragraph (1) letter g and appendix model b.3 of the election commission regulation number 20 year 2018 are not in line, conflict or do not meet the principles formation of good statutory regulations as explained in article 12 letter d of law number 12 of 2011, namely “the regulations under the law contain material to carry out the law as it should”. however, the material in article 4 paragraph (3), article 11 paragraph (1) letter g and appendix to model b.3 of the election commission regulation number 20 year 2018 which regulates a person’s political rights and contains a prohibition for former corruption convicts to run for people’s representatives is regulations which have never been ordered by the laws above, in this case law number 7 of 2017 concerning general election in conjunction with law number 12 of 2011 concerning formation of laws and regulations. the judge saw an election commission action that made provisions that were not ordered by law. decision of the supreme court number 46 p/hum/2018, the judge mentioned several considerations as the basis of interpretation such as article 28 of the 1945 constitution, law number 12 of 2005 concerning ratification of the international covenant on civil and political rights (international covenant on rights civil and politics), article 43 paragraph (1) and article 73 of law number 39 concerning human rights, article 18 paragraph (1) letter d of law number 31 of 1999 concerning eradication of corruption in conjunction with article 35 paragraph (1 ) the criminal code (kuhp) which regulates the revocation of political rights (the right to choose and vote). based on the judges’ considerations above in adjudicating and adjudicating cases mentioning article 4 paragraph (3), article 11 paragraph (1) letter g and appendix model b.3 of the election commission regulation number 20 year 2018 is contrary to law number 7 year 2017 concerning general election in conjunction with law number 12 of 2011 concerning the formation of regulations and regulations in its ruling so that the two laws become the main basis for the test in interpreting but also other considerations are inseparable parts because they also have a relationship with the judge’s ruling. decision of the supreme court number 46 p/hum/2018 when viewed from the method of legal discovery by a judge making legal discoveries based on the law, interpretation is made of the norms in the law as a guide, the text in the law becomes volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 158 | the main reference by the judge in deciding the case. the first time taken by the judge in the beginning of the interpretation of the judge must learn the word in the wording of the sentence or its relationship with other regulations, and this is the first way that must be done by the judge. therefore the supreme court decision number 46 p/hum/2018 must be respected because it has been through the method of interpretation that is in accordance with the principles and principles in applying its power in finding and creating law. conclusion decision of the supreme court number 46 p/hum/2018 which adjudicates that article 4 paragraph (3), article 11 paragraph (1) letter g and appendix model b.3 election commission regulation number 20 year 2018 is contrary to law number 7 year 2017 concerning general election in conjunction with law number 12 of 2011 concerning formation of regulations and regulations judges’ considerations are based on the interpretation of the test object test stones namely the sentences in the text of law number 7 of 2017 concerning elections and law number 12 of 2011 concerning the formation of laws and regulations as a guide so that the interpretation of judges is based on exploring the meaning contained in written norm text statements by studying the text in sentence structure or its relationship to other regulations. reference asshiddiqie, jimly. (2009). menuju negara hukum yang demokratis. jakarta: pt. bhuana ilmu populer. dirdjosisworo, soedjono. (2012). pengantar ilmu hukum. jakarta: rajawali pers. hadi, syafiul, & wijanarko, tulus. (2019, 29 januari). hari ini, kpu umumkan caleg yang mantan narapidana. tempo.co. retrieved from https://pemilu.tempo.co/ read/1169965/hari-ini-kpu-umumkan-caleg-yang-mantan-narapidana hadjon, philipus m., & djatmiati, tatiek sri. (2014). argumentasi hukum (legal argumentation/legal reasoning): langkah-langkah legal problem solving dan penyusunan legal opinion. yogyakarta: ugm press. isnantiana, nur iftitah. (2017). legal reasoning hakim dalam pengambilan putusan perkara di pengadilan. islamadina: jurnal pemikiran islam, universitas muhammadiyah purwokerto, 18(2), 41 – 56. doi: http://dx.doi.org/10.30595/islamadina.v18i2.1920 junaidi, veri. (2010). pelanggaran sistematis, terstruktur dan masif: suatu sebab pembatalan kehendak rakyat dalam pemilihan kepala daerah tahun 2010. jurnal konstitusi, mahkamah konstitusi ri, 7(5), 41 – 72. doi: https://doi.org/10.31078/jk%25x http://dx.doi.org/10.30595/islamadina.v18i2.1920 volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 | 159 khalid, afif. (2014). penafsiran hukum oleh hakim dalam sistem peradilan di indonesia. al ‘adl : jurnal hukum, universitas islam kalimantan, 6(11), 9 – 36. doi: http:// dx.doi.org/10.31602/aa.v6i11.196 mamonto, moch. andry wikra wardhana. (2019). legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election). substantive justice international journal of law, universitas muslim indonesia, 2(1), 1 – 20. doi: http:// dx.doi.org/10.33096/substantivejustice.v2i1.25 mertokusumo, sudikno. (2016). mengenal hukum: suatu pengantar. yogyakarta: cahaya atma pustaka. mundiri. (2006). logika. jakarta: pt. raja grafindo persada. muwahid. (2017). metode penemuan hukum (rechtsvinding) oleh hakim dalam upaya mewujudkan hukum yang responsif. al-hukama’: the indonesian journal of islamic family law, universitas islam negeri sunan ampel, 7(1), 224 – 248. doi: https://doi.org/10.15642/alhukama.2017.7.1.224-248 nawi, syahruddin. (2014). penelitian hukum normatif versus penelitian hukum empiris. makassar: pt. umitoha ukhuwah grafika. peraturan komisi pemilihan umum republik indonesia nomor 20 tahun 2018 tentang dewan perwakilan rakyat daerah provinsi pencalonan anggota dewan perwakilan rakyat, dan dewan perwakilan rakyat daerah kabupaten/kota. berita negara republik indonesia no. 834. putusan mahkamah agung republik indonesia nomor 46 p/hum/2013 tentang permohonan keberatan hak uji materiil atas pasal 4 ayat (3), pasal 11 ayat (1) huruf d, dan lampiran model b.3 pakta integritas pengajuan bakal calon anggota dpr/dprd provinsi/dprd kabupaten/kota, peraturan komisi pemilihan umum nomor 20 tahun 2018 tentang pencalonan anggota dewan perwakilan rakyat, dewan perwakilan rakyat daerah provinsi dan dewan perwakilan rakyat daerah kabupaten/kota. putusan mahkamah konstitusi republik indonesia nomor 14/puu-xi/2013 tentang pengujian undang-undang nomor 42 tahun 2008 tentang pemilihan umum presiden dan wakil presiden. rahardjo, satjipto. (2011). memahami hukum: dari konstruksi sampai implementasi. jakarta: pt. raja grafindo persada. respationo, h. m. soerya. (2013). pemilihan kepala daerah dalam demokrasi electoral. masalah-masalah hukum, universitas diponegoro, 42(3), 356 – 361. doi: https:// doi.org/10.14710/mmh.42.3.2013.356-361 volume 2, issue 2, december 2019 : 147 160 interpretation of judges in supreme court decision number: 46 p/hum/2018 160 | safaat, muchamad ali, widiarto, aan eko, & suroso, fajar laksono. (2017). pola penafsiran konstitusi dalam putusan mahkamah konstitusi periode 2003 – 2008 dan 2009 – 2013. jurnal konstitusi, mahkamah konstitusi ri, 14(2), 234 – 261. doi: https://doi.org/10.31078/jk1421 smith, c. e. (2009). de betekenis van de prototypische gevallen voor de rechtsvinding: taalkundige interpretatie. trema tijdschrift voor de rechterlijke macht, nederlandse vereniging voor rechtspraak, 8, 336 – 341. ubaedillah, a., & rozak, abdul. (2012). pendidikan kewarganegaraan (civic education): pancasila, demokrasi, ham, dan masyarakat madani. jakarta: kencana prenada media group. undang-undang dasar negara republik indonesia tahun 1945. undang-undang republik indonesia nomor 42 tahun 2008 tentang pemilihan umum presiden dan wakil presiden. lembar negara republik indonesia tahun 2008 no. 176. tambahan lembar negara no. 4924. undang-undang republik indonesia nomor 12 tahun 2011 tentang pembentukan peraturan perundang-undangan. lembar negara republik indonesia tahun 2011 no. 5234. undang-undang republik indonesia nomor 7 tahun 2017 tentang pemilihan umum. lembar negara republik indonesia tahun 2017 no. 182. tambahan lembar negara no. 6109. volume 5, issue 2, december 2022: 193 – 208 this work is licensed under a creative commons attribution 4.0 international license. consumer legal protection against decoy effects through digital literacy *afrilia cahyani1, fadia fitriyanti1, jamaluddin ahmad2, pratiwi ramlan2 1universitas muhammadiyah yogyakarta, indonesia 2universitas muhammadiyah sidenreng rappang, indonesia email correspondence: afrilia.c.psc19@mail.umy.ac.id abstrak the millennial and generation z tend to experience the negative impact of the decoy effect, so a consumer protection law is required. the purpose of this study is to demonstrate the negative impact of the decoy effect and the importance of consumer protection through digital literacy. a quantitative descriptive approach was used with millennial and generation z research subjects who were given a choice of products using bait items. according to the study's findings, respondents are susceptible to the decoy effect, so consumers have the right to know before making a decision. the findings of this study contribute to the public's understanding and provision of suggestions or criticism, as well as to the government's formulation of consumer protection policies, particularly for the millennial and generation z generations. the implication is that existing consumer protection laws must be flexible, rational, and based on digital literacy. legal certainty as a form of consumer legal protection to achieve equality in an engagement as a concept for those who make transaction. keywords: decoy effect; digital literacy; consumer protection; date of submission: may 10, 2022 date of publication: december 27, 2022 doi: http://dx.doi.org/10.33096/substantivejustice.v5i2.196 introduction scholars' research on the "decoy effect" has taken the form of papers published in indexed journals. from 2012 to 2022, there are 131 papers with titles that mention the decoy effect, including in scopus-indexed articles. as illustrated in figure 1, scholars have paid close attention to the decoy effect in the last ten years. according to some research findings, the decoy effect is used to increase sales by deceiving competitors' eyes. (trueblood & pettibone, 2017) (banerjee et al., 2022) (keck & tang, 2020) there are also those who use the decoy effect as a profitable marketing strategy. (uribe et al., 2017) however, many of these studies have not addressed the decoy effect in relation to digital literacy. https://creativecommons.org/licenses/by-sa/4.0/ mailto:afrilia.c.psc19@mail.umy.ac.id http://dx.doi.org/10.33096/substantivejustice.v5i2.196 volume 5, issue 2, december 2022: 193 – 208 194 | consumer legal protection… figure-1. scopus indexed papers on “decoy effect” source: vosviewer processed results understanding the decoy effect and digital literacy are critical given the rapid changes in online buying and selling transaction, (azemi & kini, 2021) (uribe et al., 2017) (yu, 2022) even artificial intelligence is used in online trading research. (bawack et al., 2022) digitalization can have a positive impact on well-being, but at the same time it can be disruptive. (ferrari et al., 2022) digital literacy skills will reduce the negative impact of the decoy effect, especially on the millennial generation. (lu, 2022) by using the theoretical framework of legal protection for the millennial generation to avoid the negative impacts of decoy products, this article will discuss the concepts of legal protection, decoy products, and digital literacy. the research approach uses a qualitative descriptive study. data were collected through literature studies, questionnaires, and interviews. currently, indonesia has law number 8 of 1999 concerning consumer protection to strengthen the balance of justice, consumer safety and security as well as legal certainty. (arif & djajaputera, 2022). indonesia also has legal protection for consumers' freedom of opinion, which is respected and guaranteed by the 1945 constitution in article 28 and article 28e paragraph (3), freedom of expression in public in the law of the republic of indonesia number 9 of 1998, and the indonesian human rights law number 39 of 1999. (y. li, 2020) many business actors who feel aggrieved by negative comments and consumer opinions on social media use the electronic information and transaction law as a basis for protecting their rights as business actors. on the other hand, business actors attempt to increase sales through marketing strategies while disregarding existing laws. volume 5, issue 2, december 2022: 193 – 208 consumer legal protection… | 195 literature study the law protects consumers from the negative psychological influence of business actors. it also protects consumers from reporting business actors who feel polluted or harmed. however, as information technology advances, one marketing strategy that has caught the attention of legal experts is the use of decoys in the marketing of certain products. the decoy effect is a marketing strategy that uses bait products to influence consumer decisions (m. cui, 2022). (f. li et al., 2020) these bait products are usually offered in the form of three different options in terms of size, price, shape, and so on to attract consumers. (whitman et al., 2019) (jeong et al., 2021) (meng et al., 2018) human choices are influenced by the context in which choices are presented. (whitman et al., 2019) as an example, consider the following two options: a and b, which differ in price and size. both of these options are presented to consumers, so the choice is a or b, but suddenly option c is presented with a slightly lower price and larger size as a bait product, even though choice c is what the business actors hope for. consumers change their preferences to c to make business actors happy, but consumers are trapped in the decoy effect. (c. wu & cosguner, 2020) (l. wu et al., 2020) some companies tend to make the target product more appealing by introducing a third alternative (which is usually referred to as the "bait") by exploiting the consumer's ignorance and doubts to create a dilemma so that the company makes the expected decision. this is known as the "bait effect," and it is a common occurrence in the real world (meng et al., 2018). the bait effect is relatively stronger when a consumer makes a consumption choice in a non-induced situation and then makes a choice in a situation with inductive information, whereas the creation of a situational direct feed has a relatively small impact on consumer purchase selection behavior. (xu et al., 2021) before purchasing a product, consumers should use their knowledge to their advantage. consumers with more knowledge will be able to make better choices from the company's wide range of products. the internet is one source of knowledge that can be used in today's digital era. consumers can obtain the information they require about the products offered via the internet. consumers must have digital literacy skills in order to obtain, process, and apply information from the internet. digital literacy as a technical skill and understanding of ideas, (peng & yu, 2022) is a basic information technology literacy to understand global awareness. (mujtahid et al., 2021) basic literacy is the ability to understand how information technology devices work and the benefits of information technology, not only for recreation and non-educational purposes. (dashtestani & hojatpanah, 2020) digital literacy is not just the ability to use digital devices or know how to use various software (baber et al., 2022), but the basic literacy they have about the benefits or uses volume 5, issue 2, december 2022: 193 – 208 196 | consumer legal protection… of digital devices. digital literacy is an important component of everyone's personal and professional life in order to survive and thrive in the digital world. (reddy et al., 2022) digital literacy functions as a competency to obtain useful information from various sources via the internet, (peng & yu, 2022) as information and technology skills (mujtahid et al., 2021) and competence to adapt to new media. (reddy et al., 2022) therefore, "digital literacy is the competence to acquire, process, and understand information through internet technology to survive and develop in the digital world". digital literacy plays an important role in promoting self-control. (baber et al., 2022) (peng & yu, 2022) people with low digital literacy tend to have low levels of self-control and have the potential to either become suspects or victims online or offline. (peng & yu, 2022) conversely, people with high digital literacy tend to be able to complete work confidently. (baber et al., 2022) (dashtestani & hojatpanah, 2020) digital literacy is disruptive if it is not accompanied by, among other things, 1) basic literacy, 2) scientific skills, 3) economic skills, 4) information skills, 5) technological skills, 6) visual skills, 7) cultural diversity skills, and 8) global awareness. (mujtahid et al., 2021) parents' economic factors influence their children's digital literacy. (peng & yu, 2022) financial ability has a significant effect on digital literacy skills. (ullah et al., 2022) people with greater economic or financial abilities also tend to have greater digital literacy skills than people with lesser economic or financial abilities. (gong et al., 2021) digital literacy serves as a potential safeguard for young people against the harmful consequences of negative online experiences. (vissenberg et al., 2022) variables such as age, educational background, gender, educational institutions, and preferences can have a large influence on digital literacy levels. (yu, 2022) likewise, a keen interest in digital technology tends to increase digital literacy. (brata et al., 2022) therefore, digital literacy functions to protect the younger generation by increasing education, preferences and interest in understanding digital technology. in line with the advancement of digital technology, consumer protection laws, particularly in financial markets where transactions are related to cash flow, must adapt quickly to these changes, especially the use of social media data (mäihäniemi, 2022). for this reason, it is important to identify potential threats to consumers related to the use of digital transactions and artificial intelligence in financial services. for example, in the case of financial services, one can point out the risks to consumers resulting from the use of digital transactions and artificial intelligence. (bygrave, 2022; vieira, 2022) (d. zhang et al., 2022) protection of their privacy on the internet, exposure to cyberattacks, and liability issues for crimes committed with the use of artificial software (bygrave, 2022; mäihäniemi, 2022; nizioł, 2021). consumers have recognized their rights, which will result in a better appreciation of competition policies by consumers without forcing them to abandon what they already know in terms of competition and consumer protection volume 5, issue 2, december 2022: 193 – 208 consumer legal protection… | 197 (tavuyanago, 2020). consumer protection is important as a legal foundation because consumers have no bargaining power with traders and can become targets of market exploitation and abuse (cseres & reyna, 2021). consumers must be provided with useful information for users, especially when considering goals such as safety, fairness, and equity. methodology this study uses a quantitative descriptive approach with research subjects from the millennial generation and generation z who are given a choice of products using bait items. the main focus of this research is a review of consumer protection regarding the effect of decoy products on the millennial generation. there were 101 respondents who were selected randomly. data collection was carried out using a questionnaire technique that was randomly sent to the millennial generation (students). the results of data processing are presented in the form of frequency tables and graphic images to obtain variants of all respondents' answers. by using excel and nvivo 12 plus to obtain variants of the respondents' answers, the research results were analyzed by comparing them with data from predetermined literature studies. conclusions after in-depth data analysis are linked to the theoretical framework of the literature review. result and diskudiscussionsi a. result when making decisions to purchase the products offered by the seller, respondents frequently become trapped in the psychological decoy effect. as shown in figure 2, the seller initially offers two types of food and beverage product options for purchase: product a for rp. 15,000 and product b for rp. 23,000. respondents chose product a up to 51.50% of the time and product b up to 48.50% of the time. after offering product c for rp. 25,000, 49.5% of the respondents chose product c. respondents who chose product a were 23.80%; respondents who chose product b were 37.60%. this phenomenon indicates that there has been a significant change in the choices of respondents, not only for those who previously chose product b but also for those who chose product a to change their choices to product c. the bait is product b. the seller expects the product purchased by the consumer to be product c, so the seller succeeds in influencing 49.50% of the respondents. volume 5, issue 2, december 2022: 193 – 208 198 | consumer legal protection… figure-2. decoy product for food and beverages source: questionnaire processed results furthermore, sellers offer electronic products, with a choice between products d and e. respondents tend to choose product d in excess of 30.70% and product e in excess of 69.30%. sellers offer product f by slightly increasing the price, so respondents choose product f by as much as 49.50%, while product d decreases to 23.80% and product e decreases to 26.70%. respondents are affected by the decoy effect, that is, they tend to switch their choices to product f. figure-3. decoy product for electronics according to the data in figures 2 and 3, the respondents are trapped in the decoy effect. price, size, quality, and need are the primary motivators for respondents to purchase a product. respondents decided to buy electronic products because of the quality (49.50%), the needs (32.70%), the price (11.90%), and the size (5.90%) (as shown in table 1). meanwhile, 54.40% of respondents chose dominant food and beverages, 22.80% chose price, 20.80% chose size, and 2% chose quality. the following information pertains to the respondents' reasons for selecting the products offered; a b a b c rp.15.000 51,50% rp.23.000 48,50% rp.15.000 37,6023,80 % rp.23.000 24,8037,6 0% rp.25.000 37,6049,5 0% volume 5, issue 2, december 2022: 193 – 208 consumer legal protection… | 199 table 1. respondents' reasons for choosing the product electronic food and drink price 11,90% 22,8% size 5,90% 20,8% quality 49,50% 2% needs 32,70% 54,4% electronics food and beverages price 11,90% 22,8% size 5,90% 20,8% quality 49,50% 2% needs 32,70% 54,4% source: questionnaire processed results table 1 shows that more than 101 respondents chose staple foods (22.8%) over electronics (11.9%) for price reasons, while in terms of size, respondents tended to choose food (food and drink) (20.8%) compared to electronics (5.9%). meanwhile, for reasons of quality, respondents tended to prefer electronics (49.5%) over staple foods (2%) and, for reasons of necessity, respondents tended to prefer snacks (70.3%) over electronics (32.7%). this shows that when respondents are offered three products, they tend to be stuck with decoy products when it concerns their daily needs. table 2. information displayed no . very clear clear standard unclear very unclear 1. complete 24,8% 39,6% 27,7% 7,9% 0 2. promotion 13,9% 38,6% 40,6% 5,9% 1% 3. understood d 17,8% 41,6% 30,7 % 9,9% 0 very understoo d dipaha mi standard less understoo d not understo od 1. complete 24,8% 39,6% 27,7% 7,9% 0 2. promotion 13,9% 38,6% 40,6% 5,9% 1% 3. understood 17,8% 41,6% 30,7% 9,9% 0 source: questionnaire processed results volume 5, issue 2, december 2022: 193 – 208 200 | consumer legal protection… figure-4. feelings for the product source: questionnaire processed results there is a possibility that the respondents chose because of a lack of information. based on the data in table 2, the completeness of the information included when the product was offered to respondents was: 24.8% answered very clearly, 39.6% answered it was clear, 27.7% answered standard, and 7.9% answered it was not clear. then, when asked about the promotional tools used, 40.6% of respondents said they were standard, 38.6% said they were clear, 13.9% said they were very clear, and 5.9% said they were unclear; even 1% said they were very unclear. finally, when asked about the level of understanding related to the products offered, 41.6% of respondents stated that it was clear, 30.7% stated standards, 17.8% stated that it was very clear, and 9.9% stated that it was not clear. if it is concluded from the three indicators asked related to the completeness of the information, the clarity of the promotional tools, and the level of understanding of the respondents, they are in the very clear, clear, and unclear categories. likewise, when they were asked about feelings, if they were happy with the product offered, then they answered "happy" and "very happy." as depicted in figure 4. "i decided to buy a product because i felt that it was worth the money." "i also feel that the product suits my needs." the results of the interviews show that the issues of price and feelings are very decisive in deciding the choice of a product. b. discussion based on the data in figures 2 and 3 and table 1, respondents tend to be trapped by the decoy effect. they are trapped because of the third product offering (m. cui, 2022; meng, 2018). (l. wu et al., 2020) (l. wu et al., 2021) the third product can be a bait product, it can also be an expected product. (jeong et al., 2021) (whitman et al., 2019) the third product emerged because of changes in size, price, and shape. (tanaiutchawoot et al., 2019) the reasons respondents changed their choices were because of price, size, quality, and need factors. respondents do not realize that they have been trapped in the decoy effect. (cao & alon, 2021) (dumbalska et al., 2020) (l. wu et al., 2021) customers are not always rational when making decisions (chen & mišić, 2022) sometimes influenced by information technology factors, (qamar & aswari, 2018) (y. zhang & liu, 2021) full 17,80 43,60 37,60 1,00 0,00 feeling happy pretty happy happy less happy not happy volume 5, issue 2, december 2022: 193 – 208 consumer legal protection… | 201 of uncertainty. a rational decision is a decision to choose an alternative based on certain considerations because it is satisfactory. (asiama & zhong, 2022) rational decisions are decisions that can be measured from uncertainty (awati & nikolova, 2022), avoid emotional factors. (zilincik, 2022) on the other hand, irrational decisions are decisions that are intervened by emotional factors. (amin, 2018) (mahmoud et al., 2020) (shan, 2022) however, bounded rationality always appears in every decision making, namely a decision that has two cultures, namely 'idealistic' and 'pragmatic', (katsikopoulos, 2014) even supported by the development of digital technology. (monteiro, 2016) (febyana & surbakti, 2019) in figure 3 data about the feeling of the product, the respondents feel happy with their choice, even though they are stuck in the decoy effect. thus, the importance of digital literacy in self-control. (baber et al., 2022) (peng & yu, 2022) digital literacy must be accompanied by legal protection to strengthen the balance of justice, consumer safety and security as well as legal certainty. (arif & djajaputera, 2022) the decoy effect can be reduced by providing consumer protection for legal certainty. (perkasa & saly, 2022) the data in figure 2 shows that it is so easy for respondents to get caught up in the decoy product (m. cui, 2022). even though it was acknowledged that the respondents were aware of the effect of the decoy product, as figure 4 explains, they were very happy and quite happy. legal protection is important for consumers, especially from something that can harm consumers. (el-chaarani et al., 2022) (juanda & untari, 2022) strategies for protecting consumers by controlling yourself, the community and the government. (juanda & untari, 2022) the seller completes the explanation related to the decoy product offered to consumers (m. cui, 2022), especially about price changes and size changes (y. (gina) cui, 2021). (l. wu et al., 2020) consumers have the right to know before making a decision, (apffelstaedt & mechtenberg, 2021) so consumers can control themselves. the community knows and provides suggestions or criticism (he et al., 2021) related to the goods offered. (cronin & kerr, 2022) suggestions and criticism through the availability of a suggestion box or consumer satisfaction survey of the products offered. (ren et al., 2022) (he et al., 2021) (ye & li, 2022) sellers socialize survey results and suggestions that have been given by the community in an open and transparent manner. it is more practical and effective to use social media or digitize through the company's official website. likewise, the government formulates policies related to consumer protection. the government is obliged to protect the public (asante & helbrecht, 2022) from negative influences arising from buying and selling or business transactions. (schilling & seuring, 2022) the government draws up consumer protection laws, (szafir & marks, 2022) (ojeda rodríguez & lorenzo, 2022) while ensuring investment stability for producers or companies. existing consumer-related laws must follow market signals, be flexible and rational. so that producers and volume 5, issue 2, december 2022: 193 – 208 202 | consumer legal protection… consumers can conduct transactions controlled by themselves, the community, and the government based on their individual needs. conclusion based on the data in figures 2 and 3 and table 1, respondents have a tendency to be stuck in the decoy effect. the emergence of a third product offering is one of the factors changing choices. the third product was created to bait consumers into changing their choices to increase sales. the third product can be a bait product, but it can also be an expected product. as a bait product, a third product emerges because of changes in size, price, and shape. the reasons respondents changed their choices were because of price, size, quality, and need factors. respondents do not realize that they have been trapped in the decoy effect. existing consumer protection laws must follow market signals and be flexible and rational. so that producers and consumers carry out transactions according to their respective needs in a way that is controlled by themselves according to the needs of the government. consumers have the right to know before making decisions; the public knows and provides suggestions or criticism; and the government formulates policies related to consumer protection. in particular, consumer protection laws specifically protect the public from the negative influence of the decoy effect. the most appropriate way is for consumers to have digital literacy. the seller does not intend to sell the goods offered but with the intention of selling other goods. in order to minimize the influence of the negative decoy effect, namely by increasing knowledge of the products offered so as not to get stuck with the bait items offered. to understand the information related to the products offered. the importance of consumer protection laws related to product attractants for the millennial generation and generation z consumer protection laws will protect against the negative impact of product attractions on making choices due to feelings. laws can be made based on feelings and refer to certain personalities and behaviors as factors that motivate legal action. the way to regulate and protect indonesian consumers from the influence of decoy products and the decoy effect is for law enforcers such as judges, prosecutors, and lawyers to use these two laws strictly. at the same time, they seek amendments or pass new laws related to bait products and bait effects. acknowledgment the author would like to thank yogyakarta muhammadiyah university for providing facilities for this research. the authors would also like to thank sidenreng rappang, dean of the faculty of health at the university of muhammadiyah, for his assistance in data collection. reference amin, f. 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(2022). emotional and rational decision-making in strategic studies: moving beyond the false dichotomy. journal of strategic security, 15(1), 1. https://doi.org/https://doi.org/10.5038/1944-0472.15.1.1974 volume 6, issue 1, june 2023: 42 – 55 this work is licensed under a creative commons attribution 4.0 international license. consequences of rejecting the principle of portie legitieme on wills and deeds of grants setiyowati setiyowati, edy lisdiyono ω faculty of law, universitas 17 agustus 1945 semarang ωemail correspondence: edylisdiyono@untagsmg.ac.id abstract inheritance law in the bw is regulatory and there is no element of coercion. the heir has the right to do anything with his property as long as he is still alive. however, the treatment of his assets must not violate the legitimacy of the portie or the absolute rights of the legal heirs. if the right of legitieme portie is violated, all the actions of the heirs are null and void as long as the demands of the heirs are valid. the purpose of this research is to find out the legal consequences of annulment of wills and awarding of deed for violating the legitieme portie. the method of analysis was carried out using a case study of the supreme court decision. the results of the analysis of the case filed a lawsuit for budijono hartono's inheritance between budijono hartono's legitimate child as the legal heir and budijono hartono's wife, the court judge decided to cancel the will and grant deed for violating the legitieme portie, as a consequence of not fulfilling the provisions in the laws and regulations on the seduction of legitimaries. deeds of wills and deed of grants are declared to have no legal force so that all assets listed in the deed of wills and grants are included in the boedel to be divided among all the heirs. keywords: legitieme portie; legitimaris; deed cancellation; date of submission: november 11, 2022 date of publication: march 14, 2023 doi: http://dx.doi.org/10.56087/substantivejustice.v6i1.213 introduction inheritance, (andreetta, 2020; reichelt et al., 2019; salifu, 2021) it will always be remembered to imagine the existence of someone who dies or dies or dies by leaving heirs and property or property called inheritance or serind is also called inheritance property, which in the bw is successively called erflater, erfgenaam and nalenschap. the law of inheritance regulates with or without changes in the transfer and generation of legal relations as a result of the death of a person. (chen & silver, 2022; pelfrey, 2020) the placement of inheritance law in the second book of burgerlijke wetboek (hereinafter referred to as bw), among the property rights is related to the thought of antiquity / time ago as can be seen from the sound of article 528 on the law or rights relating to heirs. article 584 of the bw states that property rights to an object can only be obtained due to ownership, due to attachment, due to expiration, due to inheritance either by law https://creativecommons.org/licenses/by-sa/4.0/ mailto:edylisdiyono@untagsmg.ac.id http://dx.doi.org/10.56087/substantivejustice.v6i1.213 volume 6, issue 1, june 2023: 42 – 55 consequences of rejecting the principle... | 43 (abintestato) or by will (testamenteir) or delivery based on a civil event to transfer property rights. the law of testamentary inheritance arose later after the law of inheritance according to statutory provisions. this is due to some facts in society such as: a. that in the middle of the century there was a thought that everyone can act freely on his property, so, naturally, his property is given to others in whole or in part; b. sometimes a testator has a will during his lifetime to give all of his property or only part of it to someone he wants. this is because the testator feels that he has a close relationship with the other person, both those who have blood relations and those who do not have blood relations. the wishes of the inheritance sometimes deviate from the inheritance law because they consider that the distribution of the inheritance law is not following their wishes. (pelfrey, 2020) the law of inheritance allows the testator to determine how to distribute the inheritance that deviates from the law of inheritance. this is a natural thing considering that in essence, an owner of a property has the full right to treat his property to fulfill his wishes according to his own will. for this reason, the heir deserves honor and the last. (wongkar et al., 2021) in indonesia, until now there are still three types of inheritance law that apply. one of them is the law of inheritance regulated according to the bw. while the other two are customary inheritance law and islamic inheritance law. the existence of three types of inheritance law is due to the fact that until now there has been no nationally enacted inheritance law that can be used by all indonesian people. (abubakar, 2011) therefore, in applying the law of inheritance to indonesian residents, we must see which choice of inheritance law is adopted by each indonesian resident and what legal basis applies. (khayati, 2018) people born in indonesia / indonesian occupation that does not apply western civil law can submit themselves voluntarily to western civil law based on staatblad 1917 number 12. testament in the formal sense is a letter or deed, which letter contains information made as evidence, and is generally made with the participation of an official. the official who participates in the making of the testament is generally a notary, however, there are also times that the official in question is another official, as is the case with the making of a testament in an emergency. the testament can also be made without the participation of an official, which is known as a codicil. (dinaryanti, 2013; islami, 2017) the main thing to note in making a testament is that it is a very personal act. this means that the testament cannot and should not be made with the help of a statutory representative, a contractual representative, or another person who declares himself to be a representative. (kuncoro, 2015) in the normal function a testament is an attempt for the testator (the person who makes the testament) to organize his inheritance as desired, so for a will to be valid according to the provisions of the law then according to its content is a statement of will, and the form is in the form of a deed. because of this nature, article 930 of the bw stipulates that in a single deed, two volume 6, issue 1, june 2023: 42 – 55 44 | consequences of rejecting the principle… or more persons are not allowed to declare their wills, up for the benefit of any third party for the mutual benefit of each other. for example, there are two husbands and wife, namely a and b, then a as the husband wants to give a will to c, then a goes to the notary asking to make a will for c. the action is certainly beneficial to c. if a wants to revoke his will to c, then of course a cannot revoke it without the consent of a. with this will, it is clear that it cannot be revoked at any time, because there are two parties, namely a and c, whereas the nature of the will is an act that is done unilaterally, and it can be revoked at any time by the maker. if there is such a will, then this will be invalid, article 930 of bw is held to maintain the nature of the will stipulated in article 870 of bw. so, the last will is a unilateral statement of will and a legal act containing an act of transfer of property rights regarding the property of the testator as outlined in a special written form, which can be revoked at any time and only takes effect with the death of the testator and does not need to be notified to the person concerned. a so-called will or testament is a deed containing a person's statement about what he wants to happen after he dies, which can be revoked by him. (marthianus, 2019) the will is made before the testator dies, and is executed after the testator dies. usually, the inheritance is given to the heirs or other people who deviate from the provisions of the law or division according to the law. either without reason or with any reason, the testator can revoke the will that he has made. this is because a will is a one-sided will or statement so that at any time the will can be withdrawn by the maker. article 875 defines the notion of a last will and testament. this expression has two meanings which are meteril and formil, in the material sense the word last will is a gift at the time of death. (talib et al., 2022) in the material sense of the word last will is a gift at the time of death. in the formal sense of the word: a deed fulfills the form required in articles 930 onwards (to the extent not specified by law). basically, or generally, the testator is authorized to stipulate something in his will that deviates from the provisions of the law on inheritance due to death (ab intestato). however, for certain people, the testator is limited in the determination of his last will. the restriction in question applies to heirs in the straight line (such as children and/or their descendants, and parents or other ancestors). they should not be excluded as heirs at all. the law guarantees that straightline heirs, both upwards and downwards, will receive a certain minimum share, which is called the legitieme portie. the part that has been regulated by this law on article 913 of bw, in many cases defeats both wills and grants made by the testator during his lifetime if it is violated or becomes less. reduction or incorting of the heir than other heirs can only occur, if the absolute heirs (legitimaris) or his heirs or if they died earlier than the testator, his successors make a prosecution. (helrina, 2017) the part protected by the law is called legitime portie and its absolute share according to the law must be received by the entitled in full and without being burdened by any conditions whatsoever, even though the conditions are as light as possible, while the heirs who can exercise their rights to the goods protected by the law are called legitimaris or volume 6, issue 1, june 2023: 42 – 55 consequences of rejecting the principle... | 45 heirs who have legitime portie, meaning that if as long as the heirs whose shares have been determined in the will do not harm the share that must be received by the legitimaris heirs, the will can be executed, even if the absolute share that must be given to the legitimary heirs is harmed by the testamenter's heirs, it must be returned to the legitimary heirs, according to the share they should get. (kuncoro, 2015) the heir as the owner of the property has the absolute right to regulate whatever he wants on his property, and this is a consequence of inheritance law as a regulatory law. the way that heirs can manage their assets is to bequeath their assets through a will or donate their assets either through a will or not. however, the will or grant may not violate the rights of the person who is an heir by law (ab intestato) because of their blood relationship with the testator. (saji & tedjosaputro, 2020) according to the bw, apart from heirs’ ab intestato, there are heirs by testament (testamentair) who are heirs appointed by a will. (sanjaya, 2018) the law stipulates that certain parts must be accepted by several heirs ab intestato (without a will) because of the close blood relationship with the heir. the law forbids a person during his lifetime to donate or will his assets to others by violating the right of legitieme portie, namely the absolute or smallest part according to the law which must be accepted by the entitled in full and without being burdened with any conditions. the heirs who can exercise their legitimate rights are called legitimaries, as long as the will determined by the testator does not violate and harm the legitimate part, the will can be implemented. if the will violates the absolute share, then it must be returned to the legitimate heirs, according to the share they should get. (izzah et al., 2022; yanti purnawan, 2020) an example of a violation of the legitimate absolute part of legitime portie by the testator is the case of budijono hartono's will and grant. budijono hartono as heir has left a will with a notary deed. at the time of his death, budijono hartono left a wife from his second marriage named vellisia friska, and two legitimate children from the first marriage named irwan hartono and wming hartono, respectively. the will deed made by budijono hartono stipulates that his wife gets 1/3 of the total inheritance. in addition, budijono hartono gave a grant of two plots of land to his wife through the deed of grant. this violates the portie legitimacy of budijono hartono's two legitimate children. therefore, the two children of the late mr. budijono hartono filed a lawsuit for the cancellation of the will and the grant to the court. the court of first instance in its decision number: 206/pdt.g/2019/pn.jkt.brt decided that the deed of will and deed of grant are valid and enforceable. the court of appeals in its decision number 246/pdt/2020/pt dki decided otherwise by canceling the will and deed of grants and ordering all inherited assets to be included in the boedel to be divided. this decision was upheld by the supreme court at the cassation level with decision number 3683/k/pdt/2020. the purpose of this study was to find out and analyze the legal consequences of canceling wills and grant deeds for violating the legitieme portie by conducting a case study on the supreme court's decision number: 3683/k/pdt/2020. volume 6, issue 1, june 2023: 42 – 55 46 | consequences of rejecting the principle… method the approach method used is normative juridical carried out with scientific research procedures to seek the truth based on the scientific logic of law from a normative side based on the provisions of the law. the main objective is an in-concrito case to test the normative postulates regarding the cancellation of the deed of will for violating the legitieme portie (study of supreme court decision number: 3683/k/pdt/2020). for this reason, researchers must see the law as a closed system that is comprehensive, thorough, and systematic. in addition, in the statutory approach method, researchers need to understand the hierarchy and principles of statutory regulations. thus, the laws and regulations in this study are the laws and regulations regarding the cancellation of wills because they violate the legitieme portie for the study of the supreme court decision number: 3683/k/pdt/2020). researchers carry out investigations by accessing all concrete facts in legal events according to the study, as well as conducting an inventory of positive legal norms that are relevant to concrete events so that they can determine the results of the analysis correctly. searching for relevant facts contained in concrete legal events, as well as searching for abstract legal prescriptions is a technique for gathering information in this research, as well as an analytical technique using syllogistic logic. (irwansyah, 2020) analysis and discussion inheritance by or through a will is mostly supplementary (aanvullend), in addition some are compelling (dwingend), and the last mentioned is for example about the part guaranteed by law or legitieme portie which is often also called the absolute part ex article 913 of bw. (ankie, 2018) the extent to which the legislator determines whether a matter is regulating or compelling has been considered for reasons relating to family law connected, among others, with the will or last will of the deceased (heir). in the law of inheritance according to the bw, several principles can be summarized, including the principle that only rights and obligations in the field of property law can be inherited. the existence of saisine for heirs, namely once heir by itself automatically because the law obtains property rights to all goods. the principle of death, the individual principle, and the bilateral principle. the law recognizes two ways to get an inheritance, namely: ab intestato (heirs by law), testamentair. the conditions for an inheritance to obtain an inheritance must be met, namely terms related to the heir, the death of the heir, in this case, can be divided into (1) the death of the heir is known in fact, (2) death by law. people who have rights/heirs to the inheritance must already exist or still be alive at the time of the death of the testator. the life of the heir is possible in real life, and legally alive. the existence of causes according to the law heirs are not appropriate or prohibited (onwaardig) to receive an inheritance from the testator. article 838 of the bw states that those volume 6, issue 1, june 2023: 42 – 55 consequences of rejecting the principle... | 47 who are considered inappropriate to be heirs and therefore excluded from inheritance are those who have been convicted of being blamed for killing or trying to kill the testator, those who by a judge's decision has been blamed for slanderously complaining to the testator, is a complaint of having committed a crime punishable by imprisonment of five years or more severe, by force or act have prevented the testator from making or revoking the will, and who have embezzled, damaged or falsified the testator's will. the law of inheritance in civil law is a certain part of civil law as a whole and is part of the law of property, and therefore only rights and obligations in the form and form of property that constitute inheritance will be inherited by the testator, rights, and obligations in public law, and rights and obligations arising in decency, decency and rights and obligations arising from family relationships cannot be inherited. in the bw there are no specific articles that provide an understanding of what is meant by the law of inheritance. we can only understand as stated in article 830 of the bw, which states that "inheritance only takes place due to death." thus, based on article 830 of the bw, the definition of inheritance law is that without a person who dies (heir), no person inherits (heir) and does not leave the property (inheritance), and there will be no legal event of the heir. although the law in article 832 of the bw has stated that those entitled to become heirs are blood relatives, the provision is still general, because it turns out that not all blood relatives appear together when the testator dies. the law regulates further, regarding who must appear first among the blood relatives, namely by dividing the blood relatives into 4 groups, which appear in turn. if there are still heirs of group i, then people/blood relatives from group ii cannot appear to receive the inheritance, new group ii appears after the heirs of group i are absent, and so on up to group iv. a will testament is a letter containing stipulations of the will of the maker of the will or messages that will only take effect when the maker dies. article 875 of the bw states: "as for the so-called will or testament is a deed containing a statement of a person about what he wants to happen after he dies, and which can be revoked by him. the last will is a unilateral statement of will and a legal act containing a besschikkingshandeling (an act of transferring property rights). so this is a deed, namely a statement made as evidence with the intervention of an official. furthermore, because the testament is a unilateral statement, the testament must be revocable. the most important thing is that the last will as a statement of will is a legal act and therefore an act that aims to cause legal consequences. types of will which contain "erfstelliing" or will of appointment of inheritance, and containing a bequest legaat. in principle, people have the freedom to regulate what will happen to their property after they die. an heir has the freedom to revoke the inheritance rights of his heirs, because although there are provisions in the act that determine who will inherit his estate and how much each share, the provisions of the distribution are regulatory law, thus resulting in the loss of the right of a share of an heir ab intestato. however, for some heirs ab intestato or without a will, by the act held a certain share to be received by them, so it is a share that is protected by the law, because so volume 6, issue 1, june 2023: 42 – 55 48 | consequences of rejecting the principle… close their family relationship with the testator so that the legislator considers it inappropriate if they do not receive anything at all. so that people do not easily exclude them, the law prohibits a person during his lifetime to grant or bequeath his property to others in violation of the rights of the ab intestato heirs. the provision on legitieme portie is not in the public interest but rather it exists for the benefit of the legitimary. therefore, the legitimary can allow his rights to be violated, which is closely related to the opinion that the violation of the legitieme portie does not result in nietigheid or nullity for the sake of the law. legitieme portie is an absolute part owned by blood heirs and cannot be reduced by anyone including the testator. heirs in the line down, if the testator leaves only one legitimate child according to article 914 of the bw is ½ of his share according to the law, if leaving two legitimate children, then the amount of the absolute share is 2/3 of the share according to the law and the statutory share of the two legitimate children, while if leaving three or more legitimate children, then the amount of the absolute share is ¾ of the share of the heirs according to the provisions of the law. they are not entitled (non legitimaris) because they are in the lateral line. whether or not the calculation based on legitieme portie is used depends on whether or not there is a grant of testament that can be executed. the case began when a deed of testament was made in front of a notary by the late mr. budijono hartono where the contents of the deed of testament were that the testator gave too much of his inheritance to the heirs of mrs. vellisia friska, the wife of the second marriage with the testator, namely as the first defendant. the deceased mr. budijono hartono had two biological children from his previous marriage, namely irwan hartono and wming hartono as the plaintiffs. the testamentary deed made by the testator in front of a notary was argued by the plaintiffs that the testamentary deed was null and void insofar as it related to the civil partnership referred to by the testator. the plaintiffs claim that according to the deed of testament, there was a violation of the legitieme portie of the heirs because the testator gave all of his assets to the first respondent. therefore, the plaintiffs demanded the annulment of the testament deed made by the testator in front of a notary. in principle, those who are entitled to become heirs are people who have blood family relations, both legal under the law and outside of marriage, and the husband or wife who has lived the longest according to article 832 of the bw. in this case, budijono hartono's legitimate children, namely irwan hartono and wming hartono, and budijono hartono's wife, vellisia friska, are the heirs. in the civil inheritance law, a principle applies, namely if a person dies (heir), then by law and immediately his rights and obligations pass to his heirs, as long as these rights and obligations are included in property law or other words the rights and obligations liabilities that can be valued in money. according to article 833 of the bw, the heirs by law automatically get ownership rights over all goods, all rights, and all receivables of the deceased. thus, irwan hartono, wming volume 6, issue 1, june 2023: 42 – 55 consequences of rejecting the principle... | 49 hartono, and vellisia friska have the right to the inheritance of the late budijono hartono, wills are important because disputes between heirs regarding inheritance can be avoided with the last message. based on article 875 of the bw, a will is a deed containing a statement of a person about what he wants that will happen after he dies and by which it can be revoked. the making of the deed of will number 2 dated december 3, 2015, caused problems because, in addition to withdrawing and revoking the previous will, vellisia friska was also appointed as a separate heir for 1/3 part of the entire estate of the late budijono hartono. the inheritance of 1/3 part is contrary to article 852a of the bw where if the marriage of husband and wife is for the second or subsequent time, and from a previous marriage there were children or descendants of those children, the wife or new husband will not get a share. an inheritance that is greater than the smallest part of the inheritance that one of the children will receive. based on the deed of will number two dated december 3, 2015, by receiving 1/3 of the share, vellisia friska received the same share as the two legitimate children of the late budijono hartono as legitimate heirs and this is contrary to article 852a of the bw. the judges of the high court and the supreme court then decided that the deed of will no. 2 dated december 3, 2015, was null and void and had no legal force because it violated the legitieme portie of the legitimate heirs. the proportion or share claimed by vellisia friska is getting bigger with the deed of grant number 250/2016 and the deed of grant number 251/2016 based on the deed of self-bidding agreement to implement the grant number: 16 dated october 14, 2016, which transferred the rights to two parcels of land from above. budijono hartono's name became in the name of vellisia friska. these deeds were also declared null and void and had no legal force because, by receiving this grant, vellisia friska received a larger share of the legitimate heirs, thus violating the legitieme portie of the legitimate heirs. this is under article 920 of the bw which stipulates that gifts or grants, both between those who are still alive and by will, which is detrimental to the part of the legitimation portie, may be reduced at the time the inheritance is opened, but only at the request of their legislators and heirs or their successors. based on these matters, the decision of the judex facti/high court of dki jakarta which was upheld by the decision of the supreme court through decision number 3683/k/pdt/2020 decided all disputed assets according to the deed of will number 2 dated december 3, 2015, the deed of self-binding agreement to implement grant number: 16 dated october 14, 2016, deed of grant number 250/2016 and deed of grant number 251/2016, along with other assets that are recognized as personal property of vellisia friska but cannot be proven to be included in the inheritance certificate. the author's analysis of the supreme court decision number: 3683/k/pdt/2020. in this case, it began when a deed of testament was made in front of a notary by the late mr. budijono hartono where the contents of the deed of testament were that the testator gave too much of his inheritance to the heirs of mrs. vellisia friska, the wife of the second marriage with the testator, volume 6, issue 1, june 2023: 42 – 55 50 | consequences of rejecting the principle… namely as the first defendant. the deceased mr. budijono hartono had two biological children from his previous marriage, namely irwan hartono and wming hartono as the plaintiffs. the testamentary deed made by the testator in front of a notary was argued by the plaintiffs that the testamentary deed was null and void insofar as it related to the civil partnership referred to by the testator. the plaintiffs claim that according to the deed of testament, there was a violation of the legitieme portie of the heirs because the testator gave all of his assets to the first respondent. therefore, the plaintiffs demanded the annulment of the testament deed made by the testator in front of a notary. the law of inheritance allows the heirs to determine how to distribute the inheritance that deviates from the law of inheritance. this is a natural thing considering that in essence, a person who owns the property has the full right to treat his property according to his wishes, for that the heir deserves honor and to the last. this aims to avoid unwanted things, namely the occurrence of inheritance disputes between fellow heirs. the last will of the testator may want the distribution of inheritance that is not fair according to the feelings of the heirs or unfair according to the applicable law. for this reason, the law of inheritance regulates and limits so that the heirs are not harmed. the act of determining the last inheritance is called a testament or will. thus, the will is made before the testator dies, which is executed after the testator dies. usually, the inheritance is given to the heirs or other people who deviate from the provisions of the law or distribution according to the law. either without reason or for any reason, the testator can revoke the will that he has made. this is because the will is a one-sided will or statement so that at any time the will can be withdrawn by the maker. the heir based on the testament deed number 2 dated december 3, 2015, namely mrs. vellisia friska on october 14, 2016, came to a notary named mrs. hj. titiek febriyanti utami marwan, bachelor of laws to make a deed of agreement to bind herself to carry out the granting of the entire inheritance of the testator to her, namely mrs. vellisia friska. then on december 23, 2016, grant deed number 250/2016 and grant deed number 251/2016 were made before mrs. titiek febriyanti utami marwan, bachelor of laws in her capacity as a land deed official (ppat) where the grant deed is in the name of mrs. vellisia friska. this is what causes the legitimate children of the testator, namely mr. irwan hartono and mr. wming untung hartono who are legitimate descendants or straight-line descendants down according to the law from the testator, to be more entitled to all the testator's property. they then filed a lawsuit at the west jakarta district court against mrs. vellisia friska as the defendant, mrs. hj titiek utami, marwan, bachelor of laws, notary and ppat in jakarta as the first defendant, mrs. merry susanti siaril, bachelor of laws, notary in jakarta as the second defendant, the ministry of agrarian affairs and spatial planning/national land agency of west jakarta administrative city land office as the third defendant and pt agung podomoro land, tbk, as the fourth defendant. volume 6, issue 1, june 2023: 42 – 55 consequences of rejecting the principle... | 51 the plaintiffs included letter evidence indicating that the plaintiffs, mr. irwan hartono and mr. wming untung hartono, proved that they were the legitimate children of the testator. the legitimate children of the testator filed a lawsuit arguing that the testamentary deed made by the testator, namely the late mr. budijono hartono with a testamentary deed number 2 dated december 3, 2015, made before a notary named mrs. merry susanti siaril, bachelor of laws is null and void because it has violated the absolute rights of legitieme portie of the testator's legitimate children. in this case, the bw protects the rights of the legitimate children of the testator or straightline descendants according to law, against a will that has violated the rights of legitimary heirs to inherit, to get an absolute share legitieme portie because of the legitimary's close relationship with the testator so that legitimary rights need to be protected by law from the actions of the testator in making a will, (royani, 2015) because based on the provisions in article 913 of the bw, the absolute part or part of the inheritance according to the law is a part of the inheritance that must be given to legitimate children (straight line down) and biological parents (straight line up), (israfil et al., 2023) so that the testator does not easily make or stipulate something according to his will, whether it is in the form of a grant that has been given to someone or more or in the form of a will. with the absolute part by the bw act, which is a rule that limits the testator to his last will against the testator's estate. as for legitimaries, the law has guaranteed them as heirs who are protected by their absolute hat to also get a share of the testator's estate, that the legitimary will receive a certain minimum share, namely the share that has been guaranteed by the law or the absolute share of legitieme portie. this absolute part defeats both wills and grants that have been or have been made by the testator which results in a lack of absolute part of legitieme portie. since the testator made a testament before mrs. merry susanti siaril, bachelor of laws in her capacity as a notary which contained all the assets of the inheritance given to mrs. vellisia friska, where according to the will of the testator that the children of the testator since the making of the will are no longer heirs, but according to civil law article 929 they are heirs in which case the legitimate children of the testator according to the law must file a lawsuit to get absolute rights? legitieme portie from the will that has been made by the testator. the law gives the legitimate children of the testator the right to file a lawsuit against the will that has violated their rights as heirs. if the provisions in the will or testament violate the legitieme portie of legitimate children, then the will is not null and void, because although the provisions regarding the absolute rights of legitimaries are coercive law not in the public interest, therefore legitimaries can allow their rights to be violated. violation of the absolute right of legitieme portie, resulting in the will can be requested to be canceled simply, in other words, cannot be executed. if the legitimary claims his rights in the will, and does not accept the violation contained in the will, then the provisions in the will that violate his absolute rights are unenforceable. volume 6, issue 1, june 2023: 42 – 55 52 | consequences of rejecting the principle… legal effects of cancellation of deed of testament for violating legitieme portie is all the property of a person who has died belongs to all his heirs according to the law, so that only against it by a will he has not taken a valid provision. starting from the sound of the article above, it appears that the person who dies must first be seen whether the person at the time of his life made a will. if it turns out that the testator during his lifetime did not make a will, then the inheritance is divided based on the law of inheritance according to law or ab intesto. conversely, if the testator leaves a will, then the calculation certainly deviates from the calculation according to the law of inheritance according to law or ab intesto. to safeguard the efforts of the heirs not to be harmed by the existence of a will, the legislator established an institution called legitieme portie (absolute share). the absolute part of the law must be received by the full right and without being burdened by any conditions. people have the freedom to regulate what will happen to their property after they die. (moechthar, 2017) a testator has the freedom to revoke the inheritance rights of his heirs, because although there are provisions in the law that determine who will inherit the inheritance and how much each part is, the provisions of the divisions are regulatory law and not imposing law, thus the loss of the right to part of an ab intestato heir. to keep the efforts of the heirs from being harmed by the existence of a will, the absolute part of the law must be received by the rightful full and unencumbered by any conditions. the legal consequences of the determination of heirs who violate the provisions of the determination of the absolute part or legitieme portie have long been discussed/debated by legal experts, there are also several judicial decisions (rechtsbank, hof and/or h.r) netherlands. some assume that the clause is not written, some argue that it can be canceled by the judge and some are completely void (van rechtswege nietig). the supreme court of the dutch east indies in its decision dated november 5, 1936, 537, has ruled that "a testamentary provision, to the extent that it causes the violation of a person's absolute share, is by law void. supreme court decision number 3683/k/pdt/2020 is a decision regarding a testamentary deed made by the testator during his lifetime to the defendant in this decision which disturbs part of the inheritance that must be given to the plaintiff. the granting of the will made by the grantor of the inheritance is contrary to the applicable legislation. because the granting of the inheritance has violated the absolute portion or legitieme portie of other inheritances. the absolute right of the plaintiff in this decision who is a legitimate heir is not fulfilled. (anisah et al., 2019; muzakir, 2022) the inheritance made by the testator to the defendant in supreme court decision number 3683/k/pdt/2020 must not interfere with the part of the inheritance that must be given to the plaintiff. this is as contained in article 920 of the burgelijke wetboek which states that gifts or grants, either between living persons or by will, which is detrimental to the legitieme portie, may be reduced at the time of the opening of the inheritance, but only at the request of the legitimaries volume 6, issue 1, june 2023: 42 – 55 consequences of rejecting the principle... | 53 and their heirs or their successors. however, the legitimaries may not enjoy any benefit from the reduction to the detriment of those who are indebted to the testator. conclusion legitieme portie is the absolute right of the heirs' ab intestato to get property from the heirs which are not violated by other heirs. thus, the other heirs are not allowed to get a larger share of the heirs' ab intestato even though it is through a will or a grant. if the will or grant causes a violation of the legitieme portie, then the court will cancel the will or grant and include all assets in the boedel inheritance to be divided among the heirs under the provisions of the law. the inheritance made by the testator to the defendant in supreme court decision number 3683/k/pdt/2020 must not interfere with the part of the estate that must be given to the plaintiff. this is as contained in article 920 of the burgelijke wetboek (bw) which states that gifts or grants, either between living persons or by will, which is detrimental to the legitieme portie, may be reduced at the time of the opening of the inheritance, but only at the request of the legitimaries and their heirs or their successors. however, the legitimaries may not enjoy anything from the reduction to the detriment of those who owe the testator. the actions taken by the heir, namely the late mr. budijono hartono, where the late mr. budijono hartono had given all of his inheritance to the defendant mrs. vellisia friska without regard to the absolute rights or legitieme portie of the rights of other heirs, namely the plaintiff party who was the biological child of the late heir budijono hartono, and this is certainly contrary to the aspect of the contents of the will as stated in article 913 of the bw, where the will may not interfere with or reduce the absolute share of the legitimary. reference abubakar, f. 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(2017). perkawinan di bawah tangan (kawin sirri) dan akibat hukumnya. adil: jurnal hukum, 8(1), 69–90. https://doi.org/10.33476/ajl.v8i1.454 israfil, i., salad, m., & aminullah, a. (2023). legitime portie dan zhawil furudh meurut hukum kewarisan kuhperdata dan hukum kewarisan islam. jurnal ilmiah ikip mataram, 8(1), 45– 56. https://e-journal.undikma.ac.id/index.php/jiim/article/view/3903 izzah, n. a., saharuddin, s., & tijjang, b. (2022). legitime portie dalam pemberian hibah wasiat. jurnal litigasi amsir, 9(2), 146–157. http://journalstih.amsir.ac.id/index.php/julia/article/view/76 khayati, s. (2018). implementasi penyelesaian sengketa warisan di luar pengadilan. pleno jure, 7(2), 1–15. https://doi.org/10.37541/plenojure.v7i2.346 kuncoro, n. w. (2015). waris, permasalaha dan solusinya. cara halal dan legal membgi warisan (1st ed.). raih asa sukses. marthianus, w. s. 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(2019). school tracking and its role in social reproduction: reinforcing educational inheritance and the direct effects of social origin. the british journal of sociology, 70(4), 1323–1348. https://doi.org/10.1111/1468-4446.12655 royani, a. (2015). kedudukan anak non muslim terhadap harta warisan pewaris islam ditinjau dari kitab undang-undang hukum perdata. jurnal independent, 3(1), 45–52. volume 6, issue 1, june 2023: 42 – 55 consequences of rejecting the principle... | 55 https://doi.org/10.30736/ji.v3i1.34 saji, s., & tedjosaputro, l. (2020). juridical analysis loss of ab intestato heirs right as a result of unregistered marriage. magistra law review, 1(01), 43–58. https://doi.org/10.35973/malrev.v1i01.1409 salifu, j. (2021). “you have a lot to answer for”: human rights, matriliny, and the mediation of family conflicts at the department of social welfare in ghana. polar: political and legal anthropology review, 44(1), 123–137. https://doi.org/10.1111/plar.12414 sanjaya, u. h. (2018). kedudukan surat wasiat terhadap harta warisan yang belum dibagikan kepada ahli waris. jurnal yuridis, 5(1), 67–97. https://doi.org/10.35586/.v5i1.317 talib, h., rahman, n. s. a., & rahman, n. s. a. (2022). akad tabarru’dalam sistem takaful di malaysia. integrating values of humanities and social sciences for sustainable future. international conference on humanities and social sciences, 14th ichiss 2022. wongkar, b. w., tangkere, c., & setlight, m. m. m. (2021). penyelesaian hukum penyerobotan tanah warisan menurut legitime portie dalam hukum waris perdata. lex administratum, 9(1), 31–40. https://ejournal.unsrat.ac.id/v3/index.php/administratum/article/view/32346/30690 yanti purnawan, n. m. e. (2020). penjualan harta waris berupa tanah tanpa adanya persetujuan ahli waris lainnya. acta comitas, 5(2), 309. https://doi.org/10.24843/ac.2020.v05.i02.p09 volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation | 161 recruitment of village apparatus in the regions and implementation suwari akhmaddhian faculty of law, university of kuningan email: suwari_akhmad@uniku.ac.id abstract the purpose of this article is to find out how the rules for the appointment of a village apparatus in the area and to know the implementation of the appointment at every level of village apparatus in the area. the research method used is empirical normative data collection through literature study, observation and interviews. the research location is kuningan regency, west java. the results of the study are that the regulation on the selection of village apparatus is regulated in law number 6 of 2014 concerning villages while the implementation of the local government issued regional regulation of kuningan regency number 13 of 2015 concerning village apparatus and kuningan regent regulation number 73 of 2015 concerning procedure for appointment, dismissal and transfer of position of village apparatus. factors that predominantly influence the implementation of the appointment of the village apparatus are the lack of community knowledge related to regulations related to the selection of village apparatus so that there is a need for educational activities to the community related to regulations at the regional level. keywords : recruitment; position; village apparatus. introduction regional reform and autonomy is new hope for the government and the village community to build their villages according to the needs, potential, and aspirations of the city. for most village government apparatus, autonomy is a new opportunity that can open creative space for the village apparatus in managing the village, for example, all things to be done by the village government must go through the district approval route, for now, this does not apply anymore1. in the administration of government affairs by the regional government, it is carried out with the principle of local autonomy, which means that the rights, authorities, and obligations of the autonomous region to regulate and manage their own government affairs and the interests of the local community, in accordance with statutory regulations. this implies that central government affairs which are the authority of the central government cannot possibly be carried out as well as possible by the central government in favor of public services and public welfare in all regions. geographical conditions, political systems, legal, social and cultural, very diverse and patterned, on the other hand, the unitary republic of indonesia, which includes areas 1mangoto, karlos. (2016). fungsi badan permusyawaratan desa (bpd) dalam pengawasan penyelenggaraan pemerintahan di lesah kecamatan tagulandang kabupaten kepulauan sitaro. politico: jurnal ilmu politik, universitas sam ratulangi, 5(1), p. 1 – 2. https://creativecommons.org/licenses/by-sa/4.0/ mailto:suwari_akhmad@uniku.ac.id volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation 162 | in the form of islands and the vast regions of the country. therefore, matters concerning government affairs that can be carried out by the regions themselves, it is very appropriate to be given an autonomy policy so that each part will be more capable and independent to provide services and to improve the welfare of the people in the area. an autonomous region is a legal community unit that has territorial boundaries, which has the authority to regulate and manage government affairs and interests of the local community according to their initiatives, based on the aspirations of the people in the system of the unitary state of the republic of indonesia, which has several elements including elements of territorial boundaries, aspects of government and perspective of society. in addition to these elements, there are also many principles implemented in the administration of governmental affairs between the principle of decentralization, the law of deconcentration, and the principle of co-administration2. the development of regional autonomy, of course, some things become the leading indicators, namely the equity and improvement of development in the region, improvement of services for the community, optimization of natural resources, and human resources in the regions.3 the village government gets influence from the environment in the form of regulations and policies, resources, and local technology so that it becomes the input for the implementation of the village government in the form of development and funding programs as happened in the village located in kuningan regency. the process of providing government services at the village level is carried out by village government apparatus and local institutions, or with assistance from parties outside the village. the process is carried out according to law no. 6 of 20144 concerning villages. expected outcomes are clear boundaries of towns and areas, results of facilities and infrastructure, the fulfillment of primary or basic needs, conclusions of economic ventures, revolving funds, social assistance and grants for poor people, village government services, various social activities that increase community knowledge, attitudes and skills. the benefits that can be drawn from these results include an increase in the effectiveness of the village government to accelerate and improve access and quality of village government services to the community, accelerated village development, community empowerment, community institutional development, and security and order stability. sustainable benefits produce the expected impacts in the form of improving the quality of life, life, and welfare of the community, and reducing poverty as well as achieving self-reliance, village income, and village competitiveness.5 2sunarno, siswanto. (2009). hukum pemerintahan daerah di indonesia. jakarta: sinar grafika, p. 6. 3moonti, roy marthen. (2019). regional autonomy in realizing good governance. substantive justice international journal of law, universitas muslim indonesia, 2(1), pp. 43 – 53. doi: http://dx.doi.org/10.33096/ substantivejustice.v2i1.31 4law of the republic of indonesia number 6 of 2014 concerning villages. state gazette of the republic of indonesia, number 7 of 2014. supplement to the state gazette of the republic of indonesia, number 5495. 5irawan, nata. (2017). tata kelola pemerintahan desa era undang-undang desa. jakarta: yayasan obor indonesia, p. 13. http://dx.doi.org/10.33096/ volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation | 163 as a legal community unit that has an original arrangement based on exclusive rights of origin. the rationale for village governance is diversity, participation, genuine autonomy, democratization, and community empowerment.6 in article 48 of government regulation no. 43 of 20147 concerning regulation of implementing law number 6 of 2014 concerning villages, in carrying out the duties, authorities, rights, the village head is obliged to submit a report on the implementation of the village government at the end of the budget year to the regent/mayor, submit a report on the implementation of the village government at the end of the term position to regent/mayor, submit written statement of information to the village consultative body at the end of each budget year. furthermore, as referred to in article 51 of government regulation no. 43 of 2014 that the village head submits a report on the implementation of the village government, and article 48 letter (c) that at the end of the fiscal year to the village consultative body in writing no later than three months after the end of the fiscal year. the report on the implementation of the village administration, as referred to in paragraph 1, shall at least contain the implementation of the village regulations. from the description, it is clear that the village consultative body has a strategic role in participating in overseeing the use of the village funds so as not to be misused. in addition to being with the village consultative body, according to the law that the village head is assisted by the village apparatus. the village apparatus is appointed by the village head after consultation with the sub district head on behalf of the regent/mayor, in carrying out their duties and authorities the village apparatus is responsible to the village head. the village apparatus is appointed from villagers who meet the requirements because the village administration’s tasks are so heavy, the village apparatus must have sufficient capabilities to be able to support the village head in running the government and development. the village government is obliged to carry out government tasks in accordance with its authority. in article 18 of law no. 6 of 2014, it is stated that the village’s jurisdiction includes the body in the administration of village governance, implementation of village development, village community development, and empowerment of village communities, based on community initiatives, fundamental rights, and village customs. to carry out these tasks, it is necessary to have an adequate organizational structure and village apparatus to be able to hold the government well. thus the current organizational structure of the village government needs to be developed following the need to carry out the mandate of the village law. the village apparatus as referred to in article 48 shall be appointed from the villagers who fulfill the requirements: 6widjaja, h. a. w. (2003). pemerintahan desa berdasarkan undang-undang nomor 22 tahun 1999 tentang pemerintahan daerah: suatu telaah administrasi negara. jakarta: pt. raja grafindo persada, p. 3. 7government regulation of the republic of indonesia number 43 of 2014 concerning regulation of implementing law number 6 of 2014 concerning villages. state gazette of the republic of indonesia, number 123 of 2014. supplement to the state gazette of the republic of indonesia, number 5539. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation 164 | a. the lowest educated public high school or equivalent; b. aged 20 (twenty) years to 42 (forty-two) years; c. registered as a resident of the village and residing in the village at least 1 (one) year before registration; and d. other requirements specified in regency/city regulations. further provisions regarding the village apparatus, as referred to in article 48, article 49, and article 50 paragraph (1), are regulated in district/city regional government regulations based on government regulations. still, in reality, many village apparatuses are not following existing regulations or are applicable and assumed at the research location of this article, this raises many problems from the sharing of the community asking for transparency from the village regarding the appointment of the village apparatus. whether in this way will have a good effect on the town or even create new problems for the city and the community, this will only consume energy that is actually more needed by the village community to escape from the snares of poverty and the economic crisis of the village. based on the background that has been described above, in general, what will be discussed in this article are as follows: what is the arrangement of the principle of openness in the appointment of the village apparatus in kuningan regency? and how is the implementation of the policy of transparency in the election of the right village apparatus in kuningan regency? method the method of approach used is empirical normative and sees the law as a symptom of society as a social institution or behavior that shapes and approaches from the standpoint of the rules of implementing the applicable regulations in the community. data obtained through library research, observation, and interviews. the legal materials used are the 1945 constitution8, law no. 6 of 2014, law no. 9 of 20159 concerning second amendment to law no. 23 of 201410 concerning regional government, regional regulation of kuningan regency no. 13 of 201511 concerning village apparatus, and kuningan regent regulation no. 73 of 201512 concerning procedure for appointment, dismissal and transfer of position of village apparatus. 8the 1945 constitution of the republic of indonesia. 9law of the republic of indonesia number 9 of 2015 concerning second amendment to law number 23 of 2014 concerning regional government. state gazette of the republic of indonesia, number 58 of 2015. supplement to the state gazette of the republic of indonesia, number 5679. 10law of the republic of indonesia number 23 of 2014 concerning regional government. state gazette of the republic of indonesia, number 244 of 2014. supplement to the state gazette of the republic of indonesia, number 5587. 11regional regulation of kuningan regency number 13 of 2015 concerning village apparatus. regional gazette of kuningan regency, number 13 series e of 2014. 12kuningan regent regulation number 73 of 2015 concerning procedure for appointment, dismissal and transfer of position of village apparatus. regional gazette of kuningan regency, number 74 of 2015. volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation | 165 analysis and discussion a. arrangement of appointment of the village apparatus in kuningan regency based on law number 6 of 2014 concerning villages according to article 1 paragraph (1) of law no. 6 of 2014, that a village is a village and a customary village or referred to by another name, from now on incorporated to as a village is a legal community unit that has an area boundary authorized to regulate and administer government affairs, the interests of the local community based on community initiatives, original rights, and/or traditional rights that are recognized and respected in the system of government of the unitary republic of indonesia. article 1 paragraphs (2) and (3) of law no. 6 of 2014, explained that the village government is the administration of government affairs and the interests of the local community in the system of government of the unitary republic of indonesia. village government is the head of the village or referred to by another name assisted by the village apparatus as an element of village administration. the appointment of the village apparatus is regulated in article 48 – 53 of law no. 6 of 2014. according to article 48 of law no. 6 of 2014 that the village apparatus consists of: the village secretariat, regional executors, and technical implementers. according to article 49 of law no. 6 of 2014, the number of village apparatus is adjusted to the needs, characteristics of the village, and the financial capacity of the town. the village office is located as an element of the village head’s assistant who in carrying out his duties is responsible for the village head. article 50 of law no. 6 of 2014, explains that the village apparatus is appointed from villagers who fulfill the requirements, namely: 1) the lowest level of education is a public high school or equivalent; 2) aged 20 years to 42 years; 3) registered as a resident of the village and residing in the village at least one year before registration, and 4) other conditions specified in the regulations of the regency/city. further provisions regarding the village apparatus are regulated in district/city regional regulations based on government regulations. the ban on village apparatus according to article 51 of law no. 6 of 2014, includes: 1) detrimental to the public interest; 2) make decisions that benefit themselves, family members, other parties and/or particular groups; 3) misuse of authority, duties, rights, and/or obligations; 4) discriminatory actions against individual citizens and/or groups of society; 5) take action to unsettle a group of village people; 6) collusion, corruption and nepotism, receiving money, goods, and/or services from other parties that can influence the decisions or actions that will be taken; 7) becomes a manager of political parties; 8) become a member and/or administrator of a prohibited organization; 9) concurrently a position as chairman and/or member of the village https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation 166 | consultative body, members of the people’s representative council of the republic of indonesia, the regional representative council of the republic of indonesia, the provincial regional representative council or the regency/city regional people’s representative council, and other positions determined in the legislation invitation; 10) participate in and/or be involved in general election campaigns and/or regional head elections; 11) breaking oaths/promises of village apparatus; and 12) leave assignments for 60 consecutive working days without apparent reason and cannot be justified. according to article 52 of law no. 6 of 2014, village apparatus who violate the prohibition are subjected to administrative sanctions in the form of verbal warnings and/or written warnings. if administrative penalties are not carried out, temporary termination is taken and can be continued with dismissal. article 53 of law no. 6 of 2014, describes the dismissal of the village apparatus where the village apparatus ceases due to death, own request, or termination. village apparatus who were dismissed because age has reached 60 years; permanent absence; no longer qualifies as a village apparatus, or violate the ban as a village apparatus. the termination of the village apparatus is determined by the village head after consultation with the district head on behalf of the regent/mayor. further provisions are regulated in a government regulation. the procedure for the appointment of the village apparatus is also regulated in minister of home affairs regulation no. 83 of 201513 concerning appointment and dismissal of the village apparatus which explains that the village apparatus is appointed by the village head from the village residents who have fulfilled the general and special requirements as follows: 1. general requirements include several things, namely: a. the lowest educated public high school or equivalent. b. aged 20 (twenty) years to 42 (forty-two) years. c. registered as a resident of the village and residing in the village at least 1 (one) year before registration. d. fulfilling the administrative requirements, consisting of: 1) resident identity card or certificate of residence for at least 1 (one) year before registration from the local neighborhood association or community unit. 2) statement of loyalty to god almighty made by the person concerned on stamped paper. 3) an explanation of upholding and practicing pancasila, the 1945 constitution, maintaining and maintaining the integrity of the unitary state 13minister of home affairs regulation of the republic of indonesia number 83 of 2015 concerning appointment and dismissal of the village apparatus. state gazette of the republic of indonesia, number 5 of 2016. volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation | 167 of the republic of indonesia and unity in diversity, which was made by the person concerned on sealed or sufficiently stamped paper. 4) school diplomas from the primary level up to the last degree, which is legalized by the authorized official or a statement from the authorized official. 5) birth certificate or birth identification certificate. 6) certificate of good health from the health center or licensed health apparatus. 7) application to become a village apparatus made by the person concerned on a seal or sufficiently stamped paper. 2. special requirements are special requirements that pay attention to the rights of origin and socio-cultural values of the local community and other conditions. special needs stipulated in regional regulations. the mechanism for appointing village apparatus is regulated by article 4 of the minister of home affairs regulation no. 83 of 2015 as follows: 1. the village head can form a team consisting of a chairperson, a secretary, and at least one member. 2. the village head conducts the selection and selection of the village apparatus candidates conducted by the team. 3. the collection and selection of prospective village apparatuses shall be carried out no later than 2 (two) months after the position of the village apparatus is vacant or dismissed. 4. the results of the selection and screening of prospective village apparatuses at least 2 (two) candidates are consulted by the village head to the sub-district head. 5. the camat provides written recommendations to prospective village apparatus no later than 7 (seven) working days. 6. the guidance given by the camat is approval or rejection based on the specified requirements. 7. in case the camat provides permission, the village head issues a village head’s decree on the appointment of village apparatus. 8. in the case of a camat’s recommendation containing a rejection, the village head conducts a selection and re-screening of the village apparatus candidates. 9. further arrangements regarding the tasks and functions of the team, as referred to in paragraph (1) letter a are regulated in the regulation of the village head. the appointment of the village apparatus in kuningan regency is further regulated by regional regulation of kuningan regency no. 13 of 2015 and regional regulation of kuningan regency no. 5 of 201714 concerning amendment to regional 14regional regulation of kuningan regency number 5 of 2017 concerning amendment to regional regulation no. 13 of 2015 concerning village apparatus. regional gazette of kuningan regency, number 5 of 2017. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation 168 | regulation no. 13 of 2015 concerning village apparatus that the appointment of village apparatus is the authority of the head villages with a mechanism, namely: the village head does the selection and selection or selection of candidates for the village apparatus; the village head consulted with the sub-district head about the appointment of the village apparatus; the camat gave written recommendations that contained the prospective village apparatus that had been asked by the village head, and the written advice of the camat is used as a basis by the village head in appointing village apparatus by the decision of the village head. b. implementation of appointment of the village apparatus in kuningan regency based on law number 6 of 2014 concerning villages the 4th paragraph of the 1945 constitution states that to form an indonesian government that protects all of indonesia and all of indonesia’s blood and to promote public welfare, develop the life of the nation, and participate in carrying out public order to educate life nation and to participate in carrying out world order based on independence, regional regulations and servants and social justice, indonesian independence was compiled in the form of the 1945 constitution. based on article 18 paragraph (5) states that the regional government operates autonomy to the broadest possible extent, except for government affairs, which by law are determined as central government affairs. as the implementation of the mandate of the article above, law no. 9 of 2015, in the law stating that regional autonomy is the right, authority and obligation of autonomous regions to regulate and manage their government affairs and the interests of the local community in the system of the unitary republic of indonesia,15 then need to look at several principles including: a. the principle of decentralization implies the transfer of several government affairs from the central or higher-level regional government to the lower level provincial government so that it becomes the household’s affairs of the region.16 law no. 9 of 2015, whereby the central government to local governments based on the principle of autonomy. b. the principle of deconcentration implies a delegation of authority from the central government or regional heads or heads of higher-level vertical agencies to their apparatus in the regions.17 as determined in law no. 9 of 2015, that deconcentration is the delegation of part of government affairs which is the authority of the central government to the governor as the representative of the central government, to vertical instances in certain regions, and the governor of the general government. 15kansil, c. s. t., & kansil, cristine s. t. (2007). pemerintahan daerah di indonesian: hukum administrasi daerah. jakarta: sinar grafika, p. 3. 16ibid., p. 8. 17ibid. volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation | 169 c. co-administration tasks, in addition to the local government which has the right to regulate and manage household affairs, can also be co-administered which is a task to carry out the affairs of the central government or the local government which has the right to regulate and manage the household level of its superior. in the assistance task, the relevant local government has the authority to regulate and administer it is limited solely to the administration. in article 1 no. (9) of law no. 32 of 200418, it is stated that the task of assistance is the assignment of the provincial government to the regions and villages from the provincial government to the regency/city and village and from the regency/city government to village to carry out specific tasks.19 the village consultative body is a partner of the village head in carrying out his duties and authority. membership of the bpd is the representative and the inhabitants of the village based on regional representation, which is filled in a democratic manner. the number of bpd members is determined by the number of odd, at least 5 (five) people at the most 9 (nine) people, taking into account the region, women, residents, and village finance capabilities. while the inauguration is determined by the decision of the regent/ mayor. village head, which is six years and after that, can be re-elected for 3 (three) times in a row or not in a row. while the duties and functions of the bpd are: discuss and agree on the village regulation draft with the village head. accommodate and channel the aspirations of the village community and supervise the performance of the village head20. based on the results of research conducted on monday, august 12, 2019, at the cileuleuy village office, cigugur sub-district, kuningan regency with mr. nendi suhendi as head of the cileuleuy village, said that concerning the application of the principle of openness in the appointment of a suitable village apparatus, the cileuleuy village always provides information to the community as a whole. clear about the void of the village apparatus by making a sheet and giving announcements in mosques or places of worship and public areas. furthermore, in the process of appointing village apparatus, the village head refers to article 48 – 53 of law no. 6 of 2014. mr. nendi suhendi further explained that the implementation of village apparatus recruitment in the village of cileuleuy had been carried out by applicable regulations where the village apparatus recruitment consisted of several stages, namely the formation of the committee and facilitation team, the registration stage, the verification stage, the scene of providing recommendations, endorsement, and inauguration.21 18law of the republic of indonesia number 32 of 2004 concerning regional government. state gazette of the republic of indonesia, number 125 of 2004. supplement to the state gazette of the republic of indonesia, number 4437. 19joniarto. (1982). pemerintahan lokal: asas negara kesatuan dengan otonomi yang seluas-luasnya dan perkembangan serta pokok-pokok pemerintahan lokal. yogyakarta: yayasan badan penerbit gadjah mada, p. 14. 20roby, anselmus. (2015). fungsi badan permusyawaratan desa dalam pengawasan penyelenggaraan pemerintahan di desa pak laheng kecamatan toho kabupaten mempawah. governance: jurnal mahasiswa program studi ilmu pemerintahan, universitas tanjungpura, 4(3), pp. 1 – 13. 21interview with mr. nendi suhendi, head of cileuleuy village. monday, august 12, 2019, at 09.30 wib. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation 170 | based on the results of research conducted on monday, august 12, 2019, in cileuleuy village, cigugur sub-district, kuningan regency, some residents showed that not all residents received adequate information about the vacancy of the village apparatus. this happens because not all public places or public facilities are available to announce the job of the village apparatus. besides, the existence of traditions or culture of family relations in the village government hierocracy also influences the selection of village apparatus in the village of cileuleuy. the results of the author’s observations occurred in the past few years.22 thus, the application of the principle of openness in the appointment of the village apparatus in the cileuleuy village has not been fully implemented to the fullest. based on the results of research that has been done by researchers through observations in cileuleuy village, cisantana village, and puncak village, cigugur subdistrict, kuningan regency, the data of village apparatus appointment for the past few years is presented in the following table: table 1. appointment of village apparatus in cigugur sub-district, kuningan regency23 22interviews with some of the people of cileuleuy village. monday, august 12, 2019, at 12.30 wib. 23data source: cigugur sub-district, 2019. no. name of the village apparatus position education level period cileuleuy village 1. mina yuniar, s.pd. head of financial affairs undergraduate 2017 – 2018 2. tri ria feridiana, s.pd. treasurer undergraduate 2017 – 2018 3. andri budiman head of government section undergraduate 2017 – 2018 4. rudi harono head of development economics section senior high school 2017 – 2018 5. ivan irvana e.p. head of sub-village manis senior high school 2017 – 2018 cisantana village 1. aji rianto, s.t. secretary undergraduate 2017 2. wandi a.m. head of sub-village cisantana senior high school 2017 3. tono kartono head of sub-village sukamanah senior high school 2017 4. uun nuramah, a.md treasurer diploma iii 2017 5. iyon ramdani, s.pd.i treasurer undergraduate 2018 puncak village 1. noli liander head of sub-village ciuni 1 senior high school 2016 2. bangkit peri kurnia head of financial affairs senior high school 2016 3. asep supriatna treasurer senior high school 2016 4. asep saefulloh head of sub-village pakembaran senior high school 2017 5. irwanto head of the people's welfare section senior high school 2017 volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation | 171 legal certainty is a question that can only be answered normatively, not sociology.24 law as a norm system whose statements emphasize the supposed ideal or das sollen aspects, by conveying some rules about what must be done. norms are born as a product and deliberative human action. laws that contain general rules are a guideline for individuals behaving in society, both in relationships with fellow individuals and in relation to society. the rule becomes a limit for the community in burdening or taking action against individuals, then the existence of the rule and the implementation of the rule raises legal certainty.25 the legal theory used in analyzing this paper is the theory of legal certainty, namely regarding a particular (condition), provisions, or provisions. the law must be absolutely specific and fair, certainly as a guideline of conduct and fair because the code of conduct must support an order that is considered reasonable. only because it is appropriate and carried out with certainty the law can carry out its functions. normative legal certainty is when specific regulations are made and promulgated because they regulate clearly and logically, clearly, in the sense of not raising doubts and logical. clearly, in the sense that it becomes a norm system with other norms so that they do not clash or cause norm conflicts. legal certainty refers to the implementation of transparent, permanent, consistent and consistent laws whose application cannot be influenced by subjective circumstances. confidence and justice are not just moral demands but factually characterize the law. a law that is uncertain and does not want to be fair is not only bad.26 related to the above theory, the application of the principle of openness in the appointment of a proper village apparatus in cileuleuy village, cigugur sub district, kuningan regency, has been regulated in article 48 – 53 of law no. 6 of 2014. the law explains that the village apparatus is appointed from villagers who fulfill the requirements, namely: a) the lowest educated public high school or equivalent; b) aged 20 years to 42 years; c) registered as a resident of the village and residing in the village at least one year before registration; and d) other conditions specified in the regulations of regency/city. further provisions regarding the village apparatus are regulated in district/city regional regulations based on government regulations. soerjono soekanto uses a benchmark of effectiveness in law enforcement on five things: legal factors, law enforcement factors, supporting facilities or elements, community factors, and cultural factors.27 the five factors can be explained further as follows: 24rato, dominikus. (2010). filsafat hukum: mencari memahami dan memahami hukum. yogyakarta: laksbang pressindo, p. 59. 25marzuki, peter mahmud. (2008). pengantar ilmu hukum. jakarta: kencana prenada media group, p.158. 26kansil, c. s. t., & kansil, cristine s. t. (2007). loc. cit. 27 akhmaddhian, suwari. (2016). penegakan hukum lingkungan dan pengaruhnya terhadap pertumbuhan ekonomi di indonesia (studi kebakaran hutan tahun 2015). unifikasi: jurnal ilmu hukum, universitas kuningan, 3(1), pp. 1 – 35. doi: https://doi.org/10.25134/unifikasi.v3i1.404. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation 172 | 1) legal factors. the law functions to achieve justice, certainty and expediency. in practice in carrying out law in the field there are times when there is a conflict between legal certainty and justice. legal certainty is concrete tangible, whereas justice is abstract so that when a judge decides on a case by applying the law alone, there are times when the value of justice is not achieved. so when seeing a problem about the law at least justice is a top priority. because law is not merely seen from the perspective of written law. 2) law enforcement factors. in the functioning of the law, the mentality or personality of law enforcement apparatus an important role, if the rules are good, but the quality of apparatus is not good, there is a problem. during this time there is a strong tendency among the public to interpret the law as an officer or law enforcer, meaning that the law is identified with the real behavior of the officer or law enforcer. unfortunately in carrying out their authority, problems often arise because attitudes or treatments that are seen as exceeding the authority or other actions that are considered to fade the image and authority of law enforcement. this is due to the low quality of the law enforcement apparatus. 3) factors supporting facilities or facilities. factors supporting facilities or facilities include software and hardware. law enforcers cannot work properly if they are not equipped with vehicles and proportional communication devices. therefore, facilities or facilities have a very important role in law enforcement. without these facilities or facilities, it is not possible for law enforcement to harmonize their roles with their actual roles. 4) community factors. law enforcement comes from the community and aims to achieve peace in the community. every citizen or group more or less has legal awareness. the problem that arises is the level of legal compliance, namely high, moderate, or poor legal compliance. the degree of community legal compliance with the law, is one indicator of the functioning of the law in question. 5) cultural factors. culture basically includes the values that underlie applicable law, which values are abstract conceptions of what is considered good (so obeyed) and what is considered bad (so avoided). therefore, indonesian culture is the basis or underlying customary law. besides that also applies written law, which is formed by certain groups in society who have the power and authority for it. the law must be able to reflect the values that form the basis of customary law, so that the law can be actively applied. factors that hinder or influence the process of recruiting a good village apparatus in cileuleuy village, cigugur sub-district, kuningan regency based on law no. 6 of 2014 and soerjono soekanto’s theory of effectiveness benchmarks in law enforcement can be explained as the results of the following research:28 28interview with mr. nendi suhendi, head of cileuleuy village. monday, august 12, 2019, at 09.30 wib. volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation | 173 1) legal factors, namely the existence of laws and regulations governing the process of recruiting village apparatus in the form of law no. 6 of 2014, minister of home affairs regulation no. 83 of 2015, and regional regulation of kuningan regency no. 11 of 201529 concerning organizational structure and administration of village governments. these laws and regulations relate to the process of recruiting village apparatus in cileuleuy village, cigugur sub-district, kuningan regency. 2) law enforcement factors, namely the village head as the legal implementer in the process of recruiting village apparatuses and the village consultative body as the supervisor of the village apparatus recruitment process. in connection with this research, law enforcement is carried out by the village head and the village consultative body (bpd) of cileuleuy village, cigugur sub-district, kuningan regency. but in the implementation there are obstacles where the village head is more likely to use a family or kinship system in the selection of village apparatus. in addition, bpd as the village government supervisor has not been able to carry out its functions optimally, especially in overseeing the performance of the village head in appointing village apparatus. 3) factors of supporting facilities or facilities, namely the presence of computers, vehicles, and communication devices that support the recruitment process of the village apparatus based on law no. 6 of 2014. however, in practice, the village government has not been able to maximize the facilities/facilities that are owned to better support the recruitment process of the village apparatus in cileuleuy village, cigugur sub-district, kuningan regency as social media and internet have not been used to socialize village apparatus recruitment. 4) community factors, namely the contribution or participation of the community in the process of recruiting village apparatus based on law no. 6 of 2014. in connection with this study, the community in cileuleuy village, cigugur sub district, kuningan regency did not participate and contributed in the process of recruiting village apparatus. the attitude of the community still uses the traditional mindset, customs, habits of the people. the lack of community participation in this matter is related to the orderly implementation of the village government. many people do not care or can be said to be indifferent to the activities carried out by the village government. in addition, the majority of community education in the basic education category (elementary and junior high school graduates) also influences community participation and contribution in the process of recruiting village apparatus in cileuluy village. 29regional regulation of kuningan regency number 11 of 2015 concerning organizational structure and administration of village governments. regional gazette of kuningan regency, number 11 series d of 2015. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation 174 | 5) cultural factors, namely the culture of the local community that influence the process of recruiting village apparatus. in connection with this research, cultural factors that influence the recruitment process of the village apparatus in cileuleuy village, cigugur sub-district, kuningan regency are feeling of insecurity, as many villagers do not want to become village apparatus because they feel they are less capable. insecurity can make a person unsure of his abilities so it is difficult to explore and bring up his potential. this makes it difficult for people to develop because they themselves do not want to develop in accordance with their potential. conclusion based on the discussion, it can be drawn some conclusions that are also the core of this research, namely: the regulation and implementation in the appointment of the village apparatus in kuningan regency based on law no. 6 of 2014, regional regulation of kuningan regency no. 13 of 2015, and kuningan regent regulation no. 73 of 2015. the factors that hinder or influence the process of recruiting a good village apparatus in cileuleuy village, cigugur sub-district, kuningan regency include several things, namely: village heads are more likely to use a family or kinship system in the selection of village apparatuses; bpd has not been able to carry out its functions to the maximum; the use of social media or the internet is not yet used to socialize the recruitment of village apparatus; community attitudes still use the traditional mindset, customs, community habits and education, the majority in the basic education category; and cultural factors where the community tends to feel insecure about being a village apparatus because they feel less able. suggestion based on the conclusions that have been described, the researcher submits several suggestions for related parties as follows: the community must actively participate and cooperate appropriately by participating in activities carried out by the village government, including in the process of appointing village apparatus. the village government needs to conduct broader and more comprehensive dissemination related to the operation of selecting village apparatus through print and electronic media so that the community can obtain sufficient information about the implementation of village apparatus recruitment. besides, it is necessary to avoid a familial/kinship approach in the process of appointing village apparatus. the regional government must strive to conduct training and outreach activities to the community related to their roles and participation to increase their confidence and quality in the administration of fair and prosperous village governance. volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation | 175 acknowledgement the author, thanks to the university of kuningan and regional government of kuningan regency and all parties for all the support that has been given so that the implementation of research activities. reference akhmaddhian, suwari. (2016). penegakan hukum lingkungan dan pengaruhnya terhadap pertumbuhan ekonomi di indonesia (studi kebakaran hutan tahun 2015). unifikasi: jurnal ilmu hukum, universitas kuningan, 3(1), 1 – 35. doi: https://doi. org/10.25134/unifikasi.v3i1.404 government regulation of the republic of indonesia number 43 of 2014 concerning regulation of implementing law number 6 of 2014 concerning villages. state gazette of the republic of indonesia, number 123 of 2014. supplement to the state gazette of the republic of indonesia, number 5539. irawan, nata. (2017). tata kelola pemerintahan desa era undang-undang desa. jakarta: yayasan obor indonesia. joniarto. (1982). pemerintahan lokal: asas negara kesatuan dengan otonomi yang seluasluasnya dan perkembangan serta pokok-pokok pemerintahan lokal. yogyakarta: yayasan badan penerbit gadjah mada. kansil, c. s. t., & kansil, cristine s. t. (2007). pemerintahan daerah di indonesian: hukum administrasi daerah. jakarta: sinar grafika. kuningan regent regulation number 73 of 2015 concerning procedure for appointment, dismissal and transfer of position of village apparatus. regional gazette of kuningan regency, number 74 of 2015. law of the republic of indonesia number 32 of 2004 concerning regional government. state gazette of the republic of indonesia, number 125 of 2004. supplement to the state gazette of the republic of indonesia, number 4437. law of the republic of indonesia number 6 of 2014 concerning villages. state gazette of the republic of indonesia, number 7 of 2014. supplement to the state gazette of the republic of indonesia, number 5495. law of the republic of indonesia number 23 of 2014 concerning regional government. state gazette of the republic of indonesia, number 244 of 2014. supplement to the state gazette of the republic of indonesia, number 5587. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 161 176 recruitment of village apparatus in the regions and implementation 176 | law of the republic of indonesia number 9 of 2015 concerning second amendment to law number 23 of 2014 concerning regional government. state gazette of the republic of indonesia, number 58 of 2015. supplement to the state gazette of the republic of indonesia, number 5679. mangoto, karlos. (2016). fungsi badan permusyawaratan desa (bpd) dalam pengawasan penyelenggaraan pemerintahan di lesah kecamatan tagulandang kabupaten kepulauan sitaro. politico: jurnal ilmu politik, universitas sam ratulangi, 5(1), 1 – 11. marzuki, peter mahmud. (2008). pengantar ilmu hukum. jakarta: kencana prenada media group. minister of home affairs regulation of the republic of indonesia number 83 of 2015 concerning appointment and dismissal of the village apparatus. state gazette of the republic of indonesia, number 5 of 2016. moonti, roy marthen. (2019). regional autonomy in realizing good governance. substantive justice international journal of law, universitas muslim indonesia, 2(1), 43 – 53. doi: http://dx.doi.org/10.33096/substantivejustice.v2i1.31 rato, dominikus. (2010). filsafat hukum: mencari memahami dan memahami hukum. yogyakarta: laksbang pressindo. regional regulation of kuningan regency number 11 of 2015 concerning organizational structure and administration of village governments. regional gazette of kuningan regency, number 11 series d of 2015. regional regulation of kuningan regency number 13 of 2015 concerning village apparatus. regional gazette of kuningan regency, number 13 series e of 2014. regional regulation of kuningan regency number 5 of 2017 concerning amendment to regional regulation no. 13 of 2015 concerning village apparatus. regional gazette of kuningan regency, number 5 of 2017. roby, anselmus. (2015). fungsi badan permusyawaratan desa dalam pengawasan penyelenggaraan pemerintahan di desa pak laheng kecamatan toho kabupaten mempawah. governance: jurnal mahasiswa program studi ilmu pemerintahan, universitas tanjungpura, 4(3), 1 – 13. sunarno, siswanto. (2009). hukum pemerintahan daerah di indonesia. jakarta: sinar grafika. the 1945 constitution of the republic of indonesia. widjaja, h. a. w. (2003). pemerintahan desa berdasarkan undang-undang nomor 22 tahun 1999 tentang pemerintahan daerah: suatu telaah administrasi negara. jakarta: pt. raja grafindo persada. http://dx.doi.org/10.33096/substantivejustice.v2i1.31 volume 6, issue 1, june 2023: 56 – 70 this work is licensed under a creative commons attribution 4.0 international license. judicial activism in regional head election dispute: the practice and consistency of the indonesian constitutional court amiruddin,1 rizki ramadani 2ω 1faculty of law, universitas islam makassar, indonesia 2faculty of law, universitas muslim indonesia, indonesia ωemail correspondence: rizkiramadani@umi.ac.id abstract the constitutional court's approach towards regional head election disputes is regarded as quite progressive and illustrates the growing trend of judicial activism. this article attempts to analyze the practice of activism by the constitutional court in the context of regional head election disputes and assess its consistency in simultaneous elections. this study uses a conceptual, statutory and case approach in analyzing several regional head election dispute decisions in 2020. the activism of the constitutional court in the context of regional head election disputes is at least practiced by judges through three things: first, the determination taken by the constitutional court to decide on re-voting and re-counting of votes; second, the willingness of the court to consider election offenses that are structured, massive, and systematic; and third, the courage of judges to disqualify regional head candidates as well as determine the winner to provide legal certainty. this practice of activism is still being consistently pursued by judges in the 2020 simultaneous regional head elections. even so, there is a tendency that structured, systematic and massive violations are not the main reason for terminating the election results, and even tend to be complicated by judges who demand more significant evidence. this condition will cause the burden of proving the structured, systematic and massive offenses to be much heavier in the future. this seems to be contradictory to previous decisions of the constitutional court which were known to prioritize substantive justice. keywords: judicial activism; constitutional court; election dispute; election offense. date of submission: march 12, 2023 date of publication: june 19, 2023 doi: http://dx.doi.org/10.56087/substantivejustice.v6i1.230 introduction regional head elections, in line with the local democratization agenda, are a means of fulfilling people's sovereignty in order to support democratic local governance (shayo, 2012). the "democratic" indicator in the implementation of regional head elections can be measured by the compatibility of election implementation with the election principles stipulated in article 22e paragraph (1) of the 1945 constitution, which includes the principles of direct, general, free, confidential, honest, and fair. (kosandi & wahono, 2020; lele, 2019) on this basis, an electoral https://creativecommons.org/licenses/by-sa/4.0/ mailto:rizkiramadani@umi.ac.id http://dx.doi.org/10.56087/substantivejustice.v6i1.230 volume 6, issue 1, june 2023: 56 – 70 judicial activism in regional… | 57 governance system is needed to ensure the implementation of elections is not only in accordance with procedures, but also fair and obedient to the principles (hartlyn et al., 2008). this includes the establishment of an independent election committee and regulations that guarantee this independence (nelson, 2023; ramadani, 2020), ensuring that elections are conducted in compliance with appropriate legal procedures, including the provision of a dispute resolution mechanism that ensures legal certainty and justice (mozaffar & schedler, 2002). regional head elections should be celebrated as a democratic party for every local community as an essential democratic ritual. however, it is impossible to deny that the regional head election is also a political struggle that brings together prospective regional heads with diverse perspectives and objectives. regional head elections, which are designed to set ideas against each other, frequently devolve into a contest of financial capacities or a struggle of followers, resulting in horizontal conflict. this is exacerbated by the proliferation of money-politics (hidayaturrahman et al., 2022), clientelism (bakker, 2021; mahsun et al., 2021), and patronage in regional head election (lewis, 2020). the implementation of regional head elections in various regions in indonesia was accompanied by various violations, both committed by election organizers, regional head candidate participants and their masses of supporters (kusdarini et al., 2022). in its development, various violating practices in the post-conflict local election have resulted in regional head election disputes. since it was first held on june 1, 2005, the holding of regional head elections has almost always been followed by lawsuits over regional head and deputy regional head election disputes (firmanto et al., 2021). for example, out of around 270 regional head elections that were held during 2020, there were 132 post-conflict local election results being challenged at the constitutional court. in the construction of indonesian law, disputes in elections are divided into two categories: process disputes and election result disputes. according to article 466 of law number 7 of 2017 concerning general elections (election law), process disputes are disputes that occur between election participants and disputes between election participants and election organizers as a result of the issuance of decisions by the general election commission (kpu), provincial kpu, and regency/city kpu. meanwhile, disputes over general election results are regulated in article 473; in this context, they are defined as disputes between the regional head election administration and participants regarding the determination of the vote acquisition of post-conflict local election results. in practice, the mechanism for resolving disputes over post-conflict local election results has experienced a change in the legal regime. in the early stages of democratization, post-conflict local election disputes were handled by the supreme court (ma) as the executor of judicial power as mandated in law number 32 of 2004 concerning regional government. the authority to decide post-conflict local election disputes (disputes over post-conflict local election results) is only volume 6, issue 1, june 2022: 56 – 70 58 | judicial activism in regional… owned by the constitutional court after the third amendment to the regional government law (law number 12 of 2008). (ayuni, 2018; junaidi, 2010). initially, the handling of disputes over regional head election results by the constitutional court drew sharp criticism from various groups. this criticism targets the narrow interpretation of the constitutional court on the meaning of the phrase "election results" which is only interpreted as "a dispute regarding the determination of election results carried out nationally by the general election committee (kpu)". this has resulted in the nickname "calculator court" for the constitutional court, which solely assesses the suitability of the process of determining the vote count results of election participants by the organizers. but neglected to examine allegations of violations that occurred during the electoral process. thus, the court only relies on quantitative indicators (number of votes) in handling the election disputes, no longer as a judicial power whose duty is to guard the quality of democracy as mandated by the constitution. on its journey, this view slowly faded along with the progressiveness of the constitutional court's decisions on how regional head election disputes were handled. for example, in the 2008 east java regional head election dispute decision (decision number 41/phpu.dvi/2008, december 2, 2008), the constitutional court ordered re-voting in two districts (bangkalan regency and sampang regency) and a recount of the votes in pamekasan regency because it was considered that there had been structured, systematic, and massive violations. this decision is also the first time the constitutional court has ordered a re-voting and recount of votes. if we look at the considerations of the decision, the judges seem to eager to counter the previous accusation that the constitutional court is not a "calculator court" that can be confined by a narrow interpretation of the law, but that it still has the dignity of being the guardian of the constitution and democratic values, so it is appropriate to question the aspect of electoral justice (reininda, 2021b). the progressivity of the constitutional court's authority in deciding disputes over election results, especially regional head elections, continues to grow rapidly. decisions similar to the east java regional head election have been issued by the constitutional court, which is considered to have contributed a lot to the development of democracy in indonesia. this was done by the court by correcting the implementation of the election, which was not limited to determining the results of the general election (procedural democracy), but also the process of voting and counting (conversion) of votes by determining the qualifications for a structured, massive, and systematic violation. in other words, there was a legal breakthrough made by the court to ensure that the vote results as determined by the general election commission were in accordance with the will of the people without any manipulation, intimidation, or cajoling that could harm the true meaning of democracy (substantial democracy) (kartabrata, 2022). when compared to the 2004 disputes over legislative election results, constitutional court judges used a procedural justice approach. different things can be seen in a number of volume 6, issue 1, june 2023: 56 – 70 judicial activism in regional… | 59 disputed decisions on regional head election results in 2009, where the constitutional court tended to use a substantial justice approach by questioning electoral process violations (election offenses). this step was not free from controversy and was even considered to have exceeded the limits of the constitutional court's authority (ultra vires and ultra petita) (ali et al., 2016). on the other hand, this kind of phenomenon has also given rise to speculation about the existence of a judicial activism movement by the constitutional court (mietzner, 2010). based on the background of the issues above, this article attempts to analyze two problems: first, what are the efforts of judge activism carried out by the constitutional court in the context of post-conflict local election disputes; and second, what is the consistency of the judge's activism in the context of the 2020 simultaneous local elections? based on the author's investigation, there have been several studies conducted related to the topic of the activism of constitutional court judges, including writings from pan mohamad faiz, which address the dimensions of the judicial activism of the constitutional court to protect citizens' constitutional rights through their decisions (faiz, 2016a). in addition, there is an article from prabowo, which outlines the importance of judge activism by the constitutional court in decisions regarding the presidential threshold (prabowo, 2022), and rofiq and hamidah who discussed the same topic but in the context of the constitutional court's decision on children out of wedlock (rofiq & hamidah, 2021). in comparison, dramanda has actually initiated an idea that contrasts with the studies mentioned earlier, namely judicial restraint which should be formalized within the institution of the constitutional court (dramanda, 2016). in terms of originality, no studies have been found that specifically discuss judicial activism in the context of regional election disputes and, at the same time, evaluate the consistency of the constitutional court’s activism in deciding disputes in simultaneous regional elections. in fact, this issue is quite important and relevant to assess how far the authority of the constitutional court has developed in deciding regional head election disputes, does it continue to experience progressiveness or even become degressive? departing from this urgency, this study intends to offer a new perspective on filling the gap. method as legal research, this study utilizes secondary data obtained from literature studies on legal material, which includes primary legal material in the form of relevant laws and regulations and judge's decisions, as well as secondary legal material, which includes journal articles and previous research results. data analysis uses a conceptual approach and a case approach. conceptually, this study seeks to formulate parameters or criteria based on the theory of judicial activism to analyze and justify the decisions of the constitutional court in a number of cases that meet these criteria. furthermore, the existing parameters will be an indicator of the consistency of the substance of decisions in election dispute cases in the 2020 simultaneous local elections. volume 6, issue 1, june 2022: 56 – 70 60 | judicial activism in regional… in terms of its nature, this research is descriptive-analytical in nature and seeks to describe the form of activism of constitutional court judges in post-conflict local election disputes and analyze its consistency in simultaneous regional head election disputes in 2020. analysis and discussion a. judicial activism and its practice by the constitutional court in the regional head election disputes based on a literature search, the concept of judicial activism was popular in the 20th century but was known long before. according to kmiec, who specifically researched the origins of judicial activism, the term was first coined by arthur schlesinger, an american historian, public intellectual, and social observer, in 1947 in an article in fortune magazine (josev, 2017; kmiec, 2004). from various literature searches, formulating a definite and representative definition of the term judicial activism is not an easy matter. according to bolick, everyone has their own take on the phenomena of judicial activism. he then gives a reasonably clear description, namely, the situation in which the court invalidates a statute that breaches individual rights or the constitutional restrictions of other branches of government (bolick, 1994). thirlway, for example, proposed a more general definition in his paper titled 'judicial activism and the international court of justice', stating that judicial activism refers to the approach used by judges in handling a case by maximizing the function of judges as lawmakers with a logical interpretation and (if necessary) goes beyond an authentic interpretation of the law in favor of something more substantive (thirlway, 2022). he went on to say that activist judges are those who still believe that the duty of the court is to proclaim laws, not to make them. however, under specific conditions, they will not hesitate to broaden or direct the meaning of the law in order to obtain the desired result. this is done because activist judges are dissatisfied with the current rules and regulations, or if it is determined that there is a legal vacuum, and they are always ready to make the required legal breakthroughs as the foundation for their rulings (thirlway, 2022). the judicial activism movement is a prominent school of thought in anglo-american and indian countries because of its ability to accomplish substantive justice rather than justice according to the law (procedural justice), which is frequently selective and arbitrary on the side of the populace. societal minorities and marginalized groups (amarini, 2019). an understanding of judicial activism can also be compared with the idea of judicial restraint as its antithesis. in contrast to the idea of judicial activism, which supports the freedom of judges to make decisions based on their beliefs, judicial restraint emphasizes that judges must refrain from positioning themselves as legislators and only interpret what is necessary according to a doctrinal or formalistic justice approach (king, 2008). volume 6, issue 1, june 2023: 56 – 70 judicial activism in regional… | 61 nonetheless, many people believe that the notion of judicial restraint, as opposed to judicial activism, dominates the arena of justice in indonesia. this is due in part to the indonesian legal system, which is typical of civil law and in which judges support the bouch do loi concept, therefore judges choose to refrain and refuse to take on legislative obligations in enacting laws. meanwhile, judicial activism in the civil law legal system is undemocratic and breaches the principle of separation of powers (rodríguez-garavito, 2011). on the one hand, this kind of attitude is good for avoiding abuse of power by judges who take over legislative authority as positive legislatures (buana, 2020; claus & kay, 2010), but on the other hand, excessive restrictions can result in the judge's decision being dry with progressive considerations and far from true justice. in the context of indonesian constitutional courts, judges apply the trend of the two perspectives above in deciding various cases involving disputes over regional head election results. the first inclination is for judges to refrain from interpreting anything other than what is stated in the terms of the laws and regulations, both materially and formally; in this case, the judges emphasize procedural or formalistic justice (restrictive judges). second, in some situations, judges behave as activists, abandoning formal legal rules in order to achieve far more important aims (active judges). in practice, judicial activism is frequently praised since it frequently breaks the deadlock between a handful of constitutional issues, and activism decisions are frequently become landmark decisions (faiz, 2016b). in the context of regional head election dispute resolution at the constitutional court, the practice of judicial activism is reflected in several decisions. one of the phenomenal is constitutional court decision no. 41/phpu.d-vi/2008 concerning disputes over the results of the general election of regional heads of east java, dated february 2, 2008. in this case of dispute over the results of the regional head elections, the constitutional court did not determine the correct vote count results, according to the court, but instead issued a decision that ordered the counting of votes and re-voting in several designated electoral districts. this is the first time the constitutional court has done this in the context of an election dispute. the activism side of the judges' decision on the dispute over the east java regional head election can be seen in the judge's considerations when making the decision, which were not based on mere differences in the number of votes as stipulated in the legislation but on the judge's belief that a structured, massive violation had occurred and systematically in the voting process, which has an impact on vote acquisition. thus, for the first time, judges have stepped out of the corridors of their authority by considering other aspects apart from the problem of the vote count. in fact, the provisions of the legislation at that time, namely law no. 32 of 2004 concerning regional government, law no. 22 of 2007 concerning general election organizers, and government regulation no. 6 of 2005 concerning election, confirmation of appointment, and dismissal of regional heads and deputy regional heads, volume 6, issue 1, june 2022: 56 – 70 62 | judicial activism in regional… stipulate that if there is a violation in the general election process, it must be resolved through the district or city supervisory committee. if the violation contains a criminal element, it must be forwarded to the investigator. referring to the provisions of the existing laws and regulations, the court actually has no authority to try the case based on the fact that there was a violation in the election process. nevertheless, the judges are of the view that the prohibition to deal with cases of violations and criminal acts in regional head elections must mean that the constitutional court may not carry out the functions of criminal justice or administrative justice but may still examine and adjudicate any violations in the administration of elections, which includes the process of collecting and counting votes, which affect the vote count result. furthermore, the judge attempted to legitimize his considerations by quoting radbruch's view that, as guardian of the constitution, the court must not allow formal-procedural provisions (procedural justice) to hinder the achievement of greater justice (substantive justice). the aforementioned situation demonstrates that judges have dared to leave conventional interpretations of the legal constraints on their jurisdiction in favor of interpretations that, in their opinion, can achieve larger purposes. nonetheless, many parties claimed that the ruling exceeded the constitutional court's authority and went beyond the scope of the claims filed (ultra petita) (harijanti, 2010). even the constitutional court's decision can be said to have castrated the authority of the oversight committee and investigators who have the authority to handle election administrative and criminal offenses. this phenomenon at the same time confirms one of the characteristics of judicial activism as stated by canon, namely the existence of dimensions specificity of policy (cohn & kremnitzer, 2016), whereby the constitutional court judges, in their decisions, formed their own paradigm to decide based on violations in the process of administering elections that broke through the principle of discretion or authority possessed by other institutions, in this case the election supervisory committee and investigators. in several subsequent decisions, the mk judges attempted to clarify this matter as stated in the considerations of decision number 190/phpu.d-viii/2010 concerning the regional head election of pandeglang regency. in this decision, the judge stated that the cancellation of the election results or regional head election due to structured, systematic, and massive violations had absolutely no intention of taking over the authority of another judicial body. the judge argued on the argument that the court only took those violations that were proven to have an impact on the results of the regional head election but still limited itself from imposing criminal or administrative sanctions on the perpetrators (kasim et al., 2021). the same thing is also reflected in the case of the regional head election dispute in kota waringin regency. in decision number 45/phpu.d-viii/2010, the constitutional court again reaped pros and cons because it disqualified one of the candidate pairs for regent and volume 6, issue 1, june 2023: 56 – 70 judicial activism in regional… | 63 deputy regent and ordered the election organizers, in this case the general election commission of west kotawaringin regency, to issue a decree stipulating the other candidate pairs as elected regent and deputy regent. usually, the constitutional court's decision only disqualifies candidates who are suspected of committing violations and orders a re-vote, but in this case, the court went even further by designating one of the parties as the winner of the regional head elections. the main rationalization of the trial judges was that there had been structured, systematic, and massive violations in almost the entire area of west kotawaringin regency committed by the disqualified candidate pairs. the violation was so serious that it had a systemic and massive impact on democracy and undermined the principles of direct, general, free, confidential, honest, and fair elections. referring to the provisions of article 24c of the 1945 constitution and article 10 paragraph (1) letter d of law no. 24 of 2003 concerning the constitutional court, it is clear that the constitutional court does not have the authority to determine the winner of regional head elections but only determines the results of the correct vote count according to the constitutional court. this was solely done by the judge with the consideration of avoiding a legal vacuum while guaranteeing legal certainty for the community regarding the winner of the regional head election in west kotawaringin. based on the results of noorwahidah's analysis, the constitutional court's decision was the result of the judges' effort to produce greater benefit for society (noorwahidah, 2010). another noteworthy aspect of the two activism decisions above is the emergence of the terms structured, systematic, and massive in the consideration of the decisions. this is important because such violations become a stepping stone for judges to decide disputes over regional head election results with nuances of activism. the parameters regarding these structured, systematic, and massive violations have not yet appeared in the east java regional head election decisions but have begun to be defined along with the increasing intensity of similar decisions. the definition of these terms can be found, among others, in decision number 45/phpu.d-viii/20103232 concerning disputes over the results of the general election for the head of the west kotawaringin region. the “structured” nature is defined as violations that have been carefully planned and involve officials and election organizers in stages. "systematic" refers to violations committed with careful planning and using a good strategy. while “massive” is recognized as a violation committed in a comprehensive manner with wide area coverage (rudy & purba, 2014). b. consistency of constitutional court activism in deciding simultaneous regional head election disputes the intense competition between political parties to secure seats in office is described as one of the triggers for judge activism in the context of election disputes in the by tate and volume 6, issue 1, june 2022: 56 – 70 64 | judicial activism in regional… valinder study as cited by faiz (faiz, 2016a). this spurred a number of lawmakers to file a lawsuit, which compelled the judiciary to engage in the election controversy and resulted in significant improvements thanks to a judge's decision. this also explains the proclivity for requests for disputes over the results of regional head elections, in which participants frequently include administrative infractions, criminal offenses and conflicts during the election phases as grounds for litigation. in fact, all those issues are beyond the constitutional court's jurisdiction and should be resolved through the criminal justice system's mechanisms by police, public prosecutors, and criminal courts. meanwhile, administrative violations can be resolved through the regional general election commission. while disputes in the election process or stages are resolved through the election supervisory body or the election supervisory committee, however, due to the structured, systematic, and massive nature of the violations, in order to uphold democratic values, the constitutional court considered it necessary to grant such a request and annul the results of the regional head election. despite the uproar, the constitutional court judges' action has garnered a lot of acclaim and respect. especially in its endeavors to promote substantive justice rather than being limited to procedural law. the constitutional court's progressive judgements in protecting electoral law and democracy have resulted in numerous legal breakthroughs. on that basis, it's worth looking into the consistency of the constitutional court's judgements during the 2020 simultaneous regional head elections. this consistency is critical in order to keep democracy moving forward, to ensure legal certainty, and, of course, to maintain the integrity and dignity of the constitutional court itself. on december 9, 2020, regional head elections were held concurrently. in principle, the stages of simultaneous regional head elections are identical to the conventional regional head election model. it's merely that in 2020, simultaneous regional head elections will be held in the midst of the covid-19 pandemic, with the necessity to follow the health protocol. on that premise, the conduct of the 2020 simultaneous regional head elections has yielded several benefits and drawbacks, as well as numerous infractions, both in the election context and in violation of health protocols (ramadani & rezah, 2021). a total of 270 regions held regional head election contests, with details of 9 provinces, 224 regencies and 37 cities. according to kode inisiatif study, 136 cases of regional head election disputes were brought to the constitutional court. of the 136 cases presented to the court, the court granted 18 (eighteen) requests, the majority of which included the judge's order to conduct a re-vote, while one ruling ordered a vote recount (reininda, 2021a). this finding suggests that the court does not hesitate to overturn the general election commission's regional head election results, and that it remains consistent in deciding on a re-vote if an error is suspected in the regional head election process. volume 6, issue 1, june 2023: 56 – 70 judicial activism in regional… | 65 in addition to re-voting, in its decision, the constitutional court again disqualified one pair of candidates, as occurred in the regional head election dispute case in boven digoel regency, papua province. however, the reason for the disqualification is not based on any violations committed by those concerned, but because administratively they do not meet the requirements for candidacy, namely the waiting period for ex-corruption convicts. in the a quo case, the pair of candidates who were disqualified were ex-convicts in a corruption case who in fact had not passed the 5-year gap when registering as candidates for boven digoel regent in 2020, where the 5-year gap should have ended after january 26, 2022. thus, violations were actually committed by election organizers, in this case the general elections commission. this is as stated in the decision 132/php.bupxix/2021, where in its conclusion, the judge stated that there had been a violation in the decision letter and decision letter of the boven digoel general election commission regarding the determination of the pair of candidates in question as contestants for the election of the regent and deputy regent of boven regency digoel of 2020. coincidentally, in the boven digoel case, the applicant was the pair of candidates whose votes were second in number (9,156 votes) below the disqualified candidate pair (16,319 votes). however, the judge did not immediately determine the applicant as the winner of the local election, as in the case of the dispute over the results of the regional head election in west kotawaringin regency. in his decision, the judge only ordered the general election commission of papua province and the general election commission of boven digoel regency to conduct a re-vote for the regent and deputy regent of boven digoel without involving the disqualified candidate pairs. this is most likely due to the fact that after the disqualification of one candidate pair, three other candidate pairs remain, so voting can still be carried out again. it is different from the case in kotawaringin, which only had two pairs of candidates, where if one of them is disqualified, then only a single candidate will be left. furthermore, there is a substantial difference between the decision to annul the results of the 2020 simultaneous regional head election and the decisions of the constitutional court in the previous regional head election. even though they consistently decided on re-voting, the arguments relating to structured, systematic, and massive offenses involving money politics, mobilization of the state civil apparatus, pork barrels, or the partiality of regional head election organizers were not the main factors in the judge's considerations. this is exemplified by the dispute over the results of regional head elections in banjarmasin regency. the judge ordered a re-vote in his decision number 21/php.kotxix/2021 on the banjarmasin regional head election. it's only that it appears the judges are still doubting a variety of reasons surrounding the applicant's allegations for a structural, systematic, and massive offense. volume 6, issue 1, june 2022: 56 – 70 66 | judicial activism in regional… in the case of the simultaneous regional head election dispute case in banjarmasin, the applicant in principle argued that there had been a structured, systematic, and massive violation, which included: 1) misuse of social assistance and direct cash assistance committed by related parties; 2) there was misuse of the banjarmasin municipal government's videotron for the sake of imaging incumbents (related parties) during the campaign period; 3) there has been a deployment of civil apparatus and cleaning staff with the aim of winning over the related parties. 4) there was fraud in the voting and vote counting process, including voter mobilization, which was known from the high number of additional voters and the large number of voters who did not meet the requirements, which was detrimental to the petitioner's vote acquisition.. of the three arguments of the applicant above, only argument number four was accepted by the judge, while for the other three violations, the judge stated that the evidence and facts presented before the trial were insufficient. for example, in relation to the misuse of social assistance and direct cash assistance, the court stated that even though the incident had actually occurred, there was no evidence to justify the existence of a directive from the related party as the incumbent mayor to instruct the state civil apparatus (asn) to campaign for himself or influence voters as the recipient of the assistance. in the context of the argument for videotron abuse, the court stated more or less the same thing: “not finding evidence that the incumbent ordered his staff to abuse the videotron with the aim of campaigning for himself through city government facilities..”. regardless of the judge's belief in the truth of those arguments, the considerations of the constitutional court tend to complicate efforts to prove the arguments for violations that are structured, systematic, and massive in nature. in fact, proving structured, systematic, and massive violations is considered quite difficult because it must link evidence with all the facts that emerged during the trial and must be cumulative (carolina & maryanah, 2022; kasim et al., 2021). as a comparison, article 15 of the general election supervisory agency regulation number 9 of 2020 states that structured, systematic, and massive elements must be interpreted cumulatively by the existence of evidence showing violations in at least 50% (fifty percent) of districts or cities for provincial regional head elections and 50% (fifty percent) of the sub-districts within 1 (one) regency or city for the election of the regency or city regional head. in short, the complainant must be able to prove that the tsm elements actually occur in full in at least 50 percent of the districts or electoral districts. with such provisions, it is hard to present quality evidence in a very limited time. this contrasts with the constitutional court's decision no. 41/phpu.d-vi/2008 on the dispute over the results of regional head elections in east java. in considering his decision, the judge acknowledged that during the evidentiary process, the petitioner was unable to provide evidence to support the results of his calculations. so that the argument for violations volume 6, issue 1, june 2023: 56 – 70 judicial activism in regional… | 67 was not formally proven, however, the judge still believed that materially there had been a structured, systematic, and massive offense. to this point, it is appropriate to state that in the simultaneous regional head elections, the constitutional court is still attempting to be consistent with its activism efforts to correct the results of less democratic regional head elections and does not hesitate to order a revote. however, from a considering standpoint, it demonstrates that the judge was cautious in recognizing the justifications for structural, systematic, and massive offense. this can be regarded as a court's attempt to raise the burden of evidence in cases involving election offense. it is believed that this approach will set a precedent and make proving the case for an structural, systematic, and massive election offense a lot harder in the future. conclusion judges engaged in constitutional activism in the context of regional head election disputes in at least the following manners: first, the constitutional court's determination to rule on voting and recounting of votes in regional head elections; second, the constitutional court's willingness to examine and include violations that are structured, massive, and systematic as a basis for decisions; and third, the judge's courage to disqualify regional head candidates as well as determine the winner to avoid confusion while providing legal certainty to society. the constitutional court has continued to pursue this activist practice in the 2020 simultaneous regional elections, allowing 18 requests for regional head election disputes and requiring a revote on 17 of its decisions. there are indications, however, that the structural, systematic, and massive election offenses, were not the primary basis for dismissing the regional head election results, but rather received more objections from judges who sought adequate proof. this condition shall render it much more difficult to prove a structured, systematic, and massive offense in the future. this appears to be at odds with earlier constitutional court decisions, which were believed to be progressive and emphasize substantive justice. reference ali, m. m., rachman, i. n., wijayanti, w., putranto, r. t. j., anindyajati, t., & asih, p. g. 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(2022). judicial activism and the international court of justice. in liber amicorum judge shigeru oda (vol. 1, issue 1, pp. 75–105). https://doi.org/10.1163/9789004531161_013 volume 6, issue 1, june 2023: 1 – 16 this work is licensed under a creative commons attribution 4.0 international license. restorative justice approach to the settlement of banking crime cases hijriani hijriani,ω la niasa, ayu lestari dewi, muhammad yusuf faculty of law, universitas sulawesi tenggara, indonesia ωemail correspondence: hijriani@gmail.com abstract banking crimes can now occur in a variety of new forms, which not only harm people or the wider community, but can also cause losses to the state and even the global economy. settlement of corporate crimes, particularly banking crimes, still leads to legal accountability through diverse statutory instruments, and the imposition of sanctions tends to be oriented toward the perpetrator's criminal responsibility rather than representing the victim's interests. the purpose of this study is to examine non-litigation dispute resolution in the context of corporate banking crimes, as well as whether the concept of restorative justice can be used as an alternative to sanctions in the resolution of corporate banking crimes. the normative legal research method is used, with analytical, comparative, and statutory approaches. the study's findings indicate that the disputing parties can use the out-of-court settlement mechanism to reach an agreement. the use of this mechanism must be established through an injunction settlement institution, as it is known in the legal systems of the united states and the united kingdom. the court may order a delay in examining the case at the request of one of the litigants if the applicant can demonstrate that there is no clear legal means. the concept of restorative justice opens the door to alternative solutions to corporate banking crimes, such as the deferred prosecution agreement policy. keywords: restorative justice; corporation; banking crime; economic crime; date of submission: october 19, 2022 date of publication: february 26, 2023 doi: http://dx.doi.org/10.56087/substantivejustice.v6i1.206 introduction banking is a legal institution established to support the implementation of increasing equity in national development, economic growth, and national stability with the goal of raising the average person's standard of living. (budiyono, 2011; setiyanto, 2012) national and/or private financial institutions such as banks, the people's credit agency (bpr), or legal entities permitted by law to provide loans play an important role in providing loans in credit arrangements in indonesia. (ningsih, 2020) (braga et al., 2019) (danquah et al., 2022) it should be noted that in carrying out its business activities, every financial institution must follow the 5 c https://creativecommons.org/licenses/by-sa/4.0/ mailto:hijriani@gmail.com http://dx.doi.org/10.56087/substantivejustice.v6i1.206 volume 6, issue 1, june 2023: 1 – 16 2 | restorative justice's approach… (character, capacity, capital, collateral, and condition) as stipulated in article 2 of law number 7 of 1992, as amended by law number 10 of 1998 concerning banking (hereinafter referred to as the banking law) (prawitra thalib et al., 2020). banking crimes in general can occur in a variety of new forms as science and technology advance. (triputra, 2011) (de la feria, 2020) for example, the occurrence of credit abuse, bad credit, the bank's leadership or management fleeing customer money, establishing a type of banking business without a permit, forging letters of credit, or counterfeiting current accounts or savings accounts. corporations frequently commit crimes in the economic field, such as banking crimes, corruption, or money laundering, which not only harm people or the wider community, but can also cause losses to the state and even the global economy. (christian, 2017) (koudijs et al., 2021) some examples of corporate banking crime cases include pt. bma, which collects funds from the public in an unclear form and engages in illegal banking activities that violate article 46 of the banking act under the guise of being a multi level marketing business (hereinafter abbreviated as mlm). another example is the management of bank global tbk's actions to sell the mutual funds issued by pt. prudence asset management, which turned out to be fictitious to the detriment of customers, and the transfer of pt. signature capital indonesia to pt. accent investment indonesia carried out without the customer's knowledge as collateral for debt (zulkarnain sitompul, 2002). the evolution of banks as perpetrators of crimes demonstrates that there have been significant changes in the banking sector's perpetrators of economic crimes and their victims. banks were initially considered to be targets or targets of criminals, but banks as corporations can also commit crimes. victims should be protected, given the magnitude of their losses as a result of crimes committed by banks as corporations. individual customers, corporate customers, the general public, and even the state are among the intended victims (hudi, 2021). regulation of the supreme court of the republic of indonesia no. 13 of 2016 concerning procedures for handling criminal cases by corporations (hereinafter referred to as perma no. 13 of 2016) and regulation of the attorney general of the republic of indonesia no. per.028/a/ja/10/2014 concerning guidelines for handling criminal cases with the subject of corporate law is a special regulation in the criminal justice system, intended to fill a void in criminal procedure (kristina, 2018). the restorative concept according to wright has the main goal of restoration and compensation (hutauruk, 2013). perpetrators of crimes, victims and the whole community are involved in solving crimes directly and focusing on the recovery suffered by victims (victimcentred). (o’malley & smith, 2020) restorative justice is a victim-centered response to crime, that allows victims, their families, and members of society to deal with the damage and losses caused by the crime. (oktarina, 2015). volume 6, issue 1, june 2023: 1 – 16 restorative justice's approach… | 3 in 1994, the american bar association (aba) supported the existence of mediation between victims and perpetrators, as well as dialogue in court, and developed voluntary guidelines for its use. in 1995, nova (the national organization for victim assistance) was founded, and the treatise "restorative community justice: a call to action" was published. these results were then expanded across the united states, europe, australia, africa, korea, and russia, including the united nations, the council of europe, and the european union, through dialogue and initiatives (pradityo, 2016). inconsistency in law enforcement against banking crimes in terms of preventing and eradicating them using the corruption crime act instrument, because what is referred to is the term banking crime, which is based on the term white-collar crime popularized by e. h. suterland (timasheff et al., 1955). white-collar crime refers to crimes committed by businessmen/executives and officials that harm the public interest. as a result, almost all perpetrators of illegal acts in the banking sector are businessmen/executives and officials. (carlos et al., 2019) this is a form of legal uncertainty in the legal approach used. the formulation of criminal sanctions and the corporate punishment system are regulated in various laws and regulations, so the resolution of corporate crimes and the imposition of sanctions are not consistently determined. setting deterrent sanctions, fines, or compensation, for example, and protecting the interests of victims who are underrepresented and frequently ignored (oktarina, 2015). settlement of corporate crimes, particularly banking crimes, still leads to legal accountability through various statutory instruments, and the imposition of sanctions tends to be oriented toward the perpetrator's criminal responsibility rather than representing the victim's interests. as a result of this research's analysis, it is possible to conclude that there is novelty in banking crime settlement research that employs alternative restorative justice solutions that benefit victims who have suffered losses. another point to consider is that imposing criminal responsibility on organs that only carry out orders or as the personification of corporations governed by the banking law is insufficient to fulfill the value of justice, which emphasizes partiality to victims of banking fraud, and does not create a deterrent effect for criminals (hijriani et al., 2022). this study considers how to resolve non-litigation disputes involving corporate banking crimes, as well as whether the concept of restorative justice can be used as an alternative to sanctions in resolving corporate banking crimes with a bias toward victims. volume 6, issue 1, june 2023: 1 – 16 4 | restorative justice's approach… in summary, the researcher describes the background above as shown below: figure 1. conceptual framework the figure above shows whether the settlement of banking crimes can be carried out through a restorative justice approach, can be used as an alternative solution for resolving banking corporate crime that is oriented towards victims who are harmed. this will be explained in the analysis of the next sub discussion. method a. type of research the type of research used is normative legal research, using several approach including (irwansyah, 2020): 1) an analytical approach is taken to examine the meaning of a legal term and seen in legal practice. 2) a comparative approach is used to compare the applicable legal regulations in indonesia with similar regulations in other countries, particularly those governing corporate, banking and restorative crimes. 3) legal approach (statute approach) this approach is carried out by examining the provisions of laws and regulations consisting of regulations related to banking, restorative justice, and regulations related to the research theme. b. legal materials and analysis 1) primary legal materials are legal materials that are authoritative, binding and are the main basis for use in the framework of this research, in the form of books, laws and regulations related to the research object. 2) secondary legal materials in the form of publications on laws, legal materials that provide explanations on primary legal materials, such as scientific journal articles, reports, circulars and results of previous research. the primary material was analyzed using the theme analysis model of the research title (theme analysis). the analysis of primary and secondary legal materials is prescriptively banking crime settlement through restorative justice aprroach? banking crime restorative justice corporation criminal act settllement volume 6, issue 1, june 2023: 1 – 16 restorative justice's approach… | 5 presented and is based on a comprehensive, holistic, and in-depth approach in accordance with qualitative research methods. analysis and discussion a. a. settlement of non-litigation disputes against corporate banking crimes 1. the “out of court settlement” model the restorative paradigm is viewed as a concept of resistance to retributive justice that emphasizes the model of dialogue and negotiation in the process of resolving criminal acts, leading to an out-of-court settlement model by prioritizing peace, dialogue between disputing parties to resolve legal issues that arise. faced, by emphasizing the balance of society's, perpetrators', and victims' interests in criminal acts. out-of-court settlement agreements are not adhered to in the criminal code because the paradigm in criminal law is retributive, namely punishing perpetrators and resulting in suffering that is not equal to that experienced by victims. although peace efforts between the parties are attempted at the beginning of the trial in civil cases, out of court settlement can also be found in chapter viii book i of the criminal code, article 82, which is known as the afkoop institution1, thus causing the right of prosecution to be null and void by being compensated for the payment of the maximum fine voluntarily. the basis of the protection of victims of crime refers to several theories, viz (kusuma, 2015): 1) utility theory. this theory focuses on the benefit for the greatest number. the concept of providing protection to victims of crime can be applied as long as it provides greater benefits than not applying the concept, not only for victims of crime, but also for the criminal law enforcement system as a whole. 2) the theory of responsibility. in essence, the legal subject (person or group) is responsible for all legal actions he/she commits so that if someone commits a crime which causes another person to suffer losses (in a broad sense), that person must be responsible for the losses incurred, unless there is a reason. who freed him. 3) 3) compensation theory. as an embodiment of responsibility for their mistakes towards other people, the perpetrators of criminal acts are burdened with the obligation to provide compensation to victims or their heirs. the principle of dispute resolution with the concept of a restorative approach departs from the principle of a just settlement as an initial stage. this principle is an effort to provide protection for customers and resolve customer complaints principle of a just settlement as an initial stage. this principle is an effort to provide protection for customers and resolve customer 1 institutions limited to certain criminal acts, for example on tax and customs violations. this violation can be compensated by paying a fine, provided that the permission of the official who has the right to prosecute, for example a tax or customs inspector. volume 6, issue 1, june 2023: 1 – 16 6 | restorative justice's approach… complaints. therefore, banks are required to respond to customer complaints, especially those related to financial transactions that are detrimental to them. in an effort to avoid resolving customer complaints, it is necessary to have clear and generally applicable time standards at each bank. for this reason, alternative dispute resolution is needed as an effort to continue customer complaints in the form of restorative alternative dispute resolution. one way is through banking mediation, namely bringing together customers and banks to find a solution to the main issues in order to reach an agreement without recommendations or decisions from bank indonesia (hereinafter abbreviated as bi). settlement of a case outside of court, also known as "non-litigation" or "out of court settlement," is not a new concept in the indonesian legal system or legal practice, as it has long been used in civil cases. the disputing parties can reach an out-of-court settlement to achieve peace or settlement. in other words, court decisions are final, so national and international contract dispute settlement actions can use arbitration law or alternative dispute resolution (adr), which is also an embodiment of out-of-court settlement and is recognized in indonesia's legal system (saija, 2017). the non-litigation dispute resolution paradigm has actually been implicitly regulated in statutory regulations, namely the banking law, which states in chapter viii administrative sanctions article 52 that bank indonesia is authorized to impose administrative sanctions on banks that do not fulfill their obligations, and the capital markets law number 8 of 1985. the capital market supervisory agency (hereinafter abbreviated as bapepam)2 is authorized to determine administrative sanctions for financial service providers or other parties involved in market manipulation, human trafficking, and fraud in chapter xiv administrative sanctions. because it was resolved by bank indonesia examiners or ojk investigators rather than a court decision, the formulation of the two laws above is a non-litigation dispute settlement or out of court settlement. the decisions of bank indonesia examiners and ojk investigators in this case call for declaratory and condemnatory administrative sanctions. even in some cases, such as banking fraud, the decisions of public officials are constitutive, implying a change in the suspect's legal status in order for him to cooperate (artadi, 2007). the legal implication of the out-of-court settlement paradigm is that the parties can still submit a lawsuit to the state administrative court (hereinafter abbreviated as ptun) due to the fact that the decision of the ojk official is administrative in nature, or in other words, a civil lawsuit is still being carried out, with the reason that the ojk official's decision is not final and binding because it only has legal force for both parties and is still temporary. if the peace is not adhered to, then the lawsuit process must be used through the courts. meanwhile, the decision 2 at the end of 2011, as an effort to reform the financial sector, the government and the house of representatives (dpr) agreed to establish the financial services authority (ojk). then, on november 22, 2012, law number 21 concerning the financial services authority was passed. this so-called independent institution began functioning on december 31, 2012, replacing the functions, duties and regulatory authorities that had been carried out by the ministry of finance through the capital market and financial institution supervisory agency (bapepam-lk). volume 6, issue 1, june 2023: 1 – 16 restorative justice's approach… | 7 of the parties to carry out reconciliation in court is final and binding, so that the parties are prohibited from making appeals and cassations as regulated in article 130, paragraph (3) hir. in the peace deed made at trial, the court has the power of a judge's decision, which has permanent legal force, known as kracht van gewijsde. if one of the parties does not comply with what has been mutually agreed upon, then an execution can be requested from the head of the district court due to the deed of reconciliation that has been made. 2. injuction institution the paradigm of non-litigation settlement as an alternative is carried out on the basis of consideration of the complexity of the problem in an effort to increase public confidence in the world of financial and banking services. in this case, a non-litigation settlement paradigm needs to be built using an injunction settlement institution. this institution is a settlement institution that is known in the legal system in the united states and england which uses the common law system, where the court at the request of one of the litigants can order a delay in examining the case, if the applicant can prove that there is no clear and adequate legal means. in the settlement or examination of the case, so that losses will occur later when the application is granted. in other words, greater losses can be prevented if the settlement process through administrative, civil, or criminal sanctions continues in accordance with applicable laws. where a court decision ordering the termination of the ongoing settlement process and by financial or banking officials as investigators for civil servant officials (ppns) can prevent losses for the parties involved in the case. inclusion of a non-litigation settlement process involving injunctions and the role of the court, long before or during the settlement process mandated by law. meanwhile, the goal of criminal case settlement in practice has shifted from deterring perpetrators and preventing others from committing similar crimes to deterring perpetrators and preventing others from committing similar crimes. the process of the judge's actions prior to the filing of a lawsuit was previously unknown in the civil procedural law system. however, there is a provisional stipulation institution (which was adopted from the injunction institution) in several provisions of the new law, particularly in the field of intellectual property rights, namely a judge's order requiring certain parties to carry out an act (mandatory or positive injunction) or not to commit an act (inhibitory or negative injection). conversely, there is also a paradigm of resolving criminal cases with alternatives that use restorative and rehabilitative perspectives. in other words, a restorative approach aims to restore an imbalanced situation to achieve harmony in the life of a particular community. meanwhile, the restorative-rehabilitative approach has taken the spirit of settlement according to customary law, namely being able to restore imbalances in the cosmos or those that have been volume 6, issue 1, june 2023: 1 – 16 8 | restorative justice's approach… modernized. when connected with the paradigm of resolving financial and banking cases that contain criminal elements from a macro-economic policy perspective, it seems that this has become a decision that is difficult to avoid, even though it is difficult for the wider community to accept because it is seen as not in line with people's feelings of justice as opposed to restorative justice. when comparing the development of law enforcement in developed countries, the government's position in preventing financial and banking crimes has actually strengthened. whereas developing countries, including indonesia, continue to have flaws in their political, economic, financial, and banking environments, it is difficult to implement criminal law consistently and in accordance with the principle of legal certainty. b. restorative justice as an alternative for corporate banking crime settlement restorative justice is one example of the evolution of criminal law. this development is due to the fact that the retributive system that has been implemented thus far has not fully satisfied the people's sense of justice. the orientation of retributive justice is the orientation of justice aimed solely at violators and solely for breaking the law. as a result, the concept of retributive justice does not include a provision for victim protection. the concept of fairness in the restorative concept is based on a "consensus" of agreement that provides alternative options in problem solving, whereas proportionality relates to the scope of similarity in the suffering sanctions that must be imposed on violators. proportionality is considered to have been fulfilled in criminal justice in general if it has fulfilled a sense of retributive justice (a reciprocal balance between punish and reward), whereas in a restorative approach it can impose disproportionate sanctions on offenders who commit the same offense (hutauruk, 2013). in the criminal justice system, restorative justice does not use the principle of who wins and who loses. restorative justice, on the other hand, seeks to find a middle ground of communication between all parties involved in crime in order to reach a collective resolution of dealing with criminal acts. restorative justice is thought to provide better guarantees of justice for all parties, including society, in practice (pradityo, 2016). settlement of criminal acts through a restorative approach to a conflict, damage or loss arising from a crime is seen as a conflict that occurs in the relationship between community members which must be resolved and restored by all parties together. all law enforcement institutions in indonesia, including the supreme court, the attorney general's office, the police of the republic of indonesia, and the ministry of law and human rights of the republic of indonesia, have adopted the principle of restorative justice as a way to resolve a criminal case, limited only to the implementation of the adjustments to the limits of action. light crimes and total fines, speedy examination procedures, and the implementation of restorative justice, as contained in the memorandum of understanding (kristanto, 2020) . volume 6, issue 1, june 2023: 1 – 16 restorative justice's approach… | 9 guidelines for terminating prosecutions based on restorative justice are contained in ri prosecutor's office regulation number 15 of 2020 concerning termination of prosecution based on restorative justice (hereinafter referred to as prosecutor's office no. 15/2020). based on attorney no. 15/2020, restorative justice is the settlement of criminal cases involving perpetrators, victims, families of perpetrators and victims, and other related parties to jointly seek a fair solution by emphasizing restoration to its original state and not retaliation. this prosecutor's office contains the prosecutor's authority to stop prosecutions based on restorative justice as a breakthrough in solving criminal acts. termination of prosecution based on restorative justice is part of the public prosecutor's authority to close cases in the public interest, more specifically on the grounds that there has been a settlement of cases outside the court (the abiding by the law process) (handoko, 2020). however, the provisions stipulated in this prosecutor's office must pay attention to the existence of basic conditions that must be met, including: a) the suspect is the first time to commit a crime; b) criminal acts are only punishable by fines or threatened with imprisonment of not more than 5 (five) years; c) the crime was committed with the value of the evidence or the value of the losses incurred as a result of the crime of not more than idr 2,500,000; d) there has been restoration to its original state by the suspect by returning goods obtained from the crime to the victim; compensation for the loss of the victim; reimbursing costs incurred as a result of a criminal act; repair the damage caused by the crime; e) there has been a peace agreement between the victim and the suspect; and f) the community responds positively aside from the permissible conditions and principles for the implementation of restorative justice, exceptions to the implementation of restorative justice are also regulated, specifically in article 5 paragraph (8), which regulates the termination of restorative justicebased prosecution except in cases of grave misconduct: a) criminal acts against state security, the dignity of the president and vice president, friendly countries, heads of friendly countries and their representatives, public order and decency; b) criminal offense punishable by a minimum penalty; c) narcotic crime; d) environmental crimes; and e) criminal acts committed by corporations. there are basic requirements and exceptions regulated by the prosecutor's office no. 15/2020, and technically it is not possible to handle cases that are oriented towards the value of volume 6, issue 1, june 2023: 1 – 16 10 | restorative justice's approach… restorative justice for crimes committed by corporations. a restorative sanction approach, on the other hand, is an alternative choice of sanctions that can be applied to corporations in order to prioritize victims as the injured party in the settlement of corporate crimes. dispute resolution through non-litigation channels has gained a place in the banking world (wulandari, 2013), with the establishment of the bank indonesia banking mediation institution, whose mission is to carry out non-litigation settlements through the use of mediation as a method of dispute resolution. banking mediation is one of the mechanisms for resolving customer and bank disputes in the context of customer protection, as established by bank indonesia regulation number: 10/1/pb1/2008 concerning amendments to bank indonesia regulation number: 8/5/pb1/2006 concerning banking mediation. customer protection is pursued by ensuring customer rights when dealing with banks and encouraging equal relationships between banks as business actors and customers as consumers who use banking services (tamara, 2008). the presence of banking mediation institutions is becoming increasingly important and urgent because every customer problem has the potential to cause a dispute and damage the bank's reputation, so it must be properly and professionally mediated. the resolution of disputes between customers and banks through banking mediation institutions can help to maintain public trust while reducing negative publicity that can harm the bank's reputation. according to the indonesian consumers foundation (abbreviated ylki), there are three major reasons for the need for a banking mediation institution: 1) the banking potential is getting bigger, and the possibility of conflict is also getting bigger; 2) the position between the bank and the consumer is unequal so that there is a possibility of pressure from the bank on the customer; 3) there is no place to make complaints. disputes that can be submitted for mediation by bank indonesia are those that are not currently in process, have never been decided by an arbitration institution or court, or where there has been no agreement facilitated by another mediation institution. bank indonesia, through the directorate of banking investigation and mediation (hereinafter abbreviated as dimp), always recommends that it be resolved through legal channels, but if in the agreement forum there is another opinion from the police and prosecutors to stop the case and not process it through legal channels, bank indonesia will accept that. this opinion is, of course, in accordance with the conditions agreed upon during the meeting between bank indonesia, the police, and the attorney general's office (wulandari, 2013). basically, the settlement of banking crimes is possible without going through court channels as long as the bank's internal party has resolved the case, both between the bank and the perpetrator and with the customer, so that it does not become a finding by bank indonesia. volume 6, issue 1, june 2023: 1 – 16 restorative justice's approach… | 11 settlement of disputes through banking mediation does not negate the crime in that case. therefore, criminal disputes are still being prosecuted in the district court. banking mediation is carried out for any dispute that has a maximum financial claim value of rp. 500,000,000 (five hundred million rupiah). the customer cannot file a financial claim resulting from an immaterial loss. likewise with the provisions in article 41 pojk no. 1/pojk.07/2013, which stipulate that the value of financial claims is the same as what is regulated in ojk regulations, requiring a maximum loss of rp. 500,000,000 for a customer. this amount can be in the form of cumulative financial losses that have occurred to customers, potential losses due to delays or the inability to carry out customer financial transactions with other parties, or costs incurred by customers to obtain dispute resolution. according to article 26 paragraph (4) of the united nations convention against corruption, 2003 (united nations convention against corruption, 2003), the state is obligated to ensure that the corporations responsible face effective, proportionate, and prohibitive criminal or non-criminal sanctions, including financial sanctions. if non-criminal sanctions are deemed more effective and proportionately by law enforcers and judges, the use of criminal law can be considered and set aside. profits obtained by corporations and losses suffered by society as a result of corporate crimes are so large that they cannot be balanced if corporations are only subject to criminal sanctions. as a result, an alternative dispute resolution mechanism such as deferred prosecution is required. furthermore, in order to effectively implement the system for dealing with corporate banking crimes, alternative methods and strategies that enrich the existing criminal system can be expanded by imposing sanctions that include elements of restitution, compensation, and/or mediation. several countries have implemented a deffered prosecution agreement (abbreviated as dpa) policy to reduce bankruptcy or corporate bankruptcy as a result of criminal prosecution. the handling of criminal acts of corruption committed by corporations in england is based on schedule 17 of the crime and courts act 2013 (hereinafter referred to as schedule 17 of c&c act 2013), which uses the deffered prosecution agreement policy in dealing with crimes committed by corporations. deferred prosecution agreement, also known as deferred prosecution, is an out-of-court alternative form of dispute resolution. suspended prosecution is essentially an informal agreement between the lawyer/defendant and the public prosecutor to establish conditions that the perpetrator must meet. a dpa is a court-supervised agreement between the british public prosecutor and the corporation being sued. the deferred prosecution agreement was implemented in england and wales in 2014 and is still being negotiated. the dpa, however, was not without controversy. concerns have been raised about reduced prosecution of perpetrators, the requirement for self-reporting (and volume 6, issue 1, june 2023: 1 – 16 12 | restorative justice's approach… reduced penalties even if no self-reporting occurs), and the rarity of prosecution of corporations that are not part of the dpa regime. despite these reservations, the dpa has received strong backing from the legislature, law enforcement, and the judiciary (hawley et al., 2020). the only criticism of dpa stated that because corporations as defendants had to pay fines and submit to structural reforms without being found guilty at trial, dpa in this case was deemed to have violated the presumption of innocence (shiner & ho, 2018). criminal acts that can be applied to dpa are only certain crimes, namely conspiracy to commit fraud, tax evasion, theft, falsification of accounting, bribery and other economic crimes contained in the provisions of theft act 1968, customs and excise management act 1979, forgery and counterfeiting act 1981, section 450 of the companies act 1985, section 72 of the value added tax act 1994, financial services and markets act 2000, proceeds of crime act 2002, companies act 2006, fraud act 2006, bribery act 2010, regulations 45 of the money laundering regulations 2007. the application of dpa is only for corporations, not individuals (iqbal, 2020). in order to implement the dpa policy in indonesia, legislators must systematically change the laws and regulations that support corporations being punished, as contained in english laws and regulations. taking into account the following factors (mutiara, 2019): a) consider the indonesian justice system in terms of its constitutional structure and legal traditions. the impact of regulatory and compliance burdens on corporations, where corporations require additional costs; b) crimes that can use the dpa mechanism include serious crimes (but not limited), so it is necessary to establish a special law that regulates this; c) it only applies to corporations so there is an opportunity to have a deterrent effect and possibly sue employees (company organs). however, if it is limited to corporations, then there is a possibility that individuals have committed crimes but do not report them for fear of being punished. d) the role of the courts will be very important for the dpa. judicial involvement will increase trust. e) there is a balance between the interests of building public trust and also the interests of pursuing fraudulent corporations. f) increasing public trust, indonesia's dpa scheme can require agreements in the public interest and to be fair, reasonable and proportionate. g) clear guidelines on how the dpa will be negotiated and an effective oversight mechanism. in addition to the foregoing, the sense of justice in society must be considered. because the dpa mechanism is still likely to face challenges in its implementation in society. the public will find it difficult to accept dpa policies in certain criminal contexts, particularly those involving volume 6, issue 1, june 2023: 1 – 16 restorative justice's approach… | 13 crimes against state finances or corruption. for a developing country like indonesia, the criminal act of corruption is an extraordinary crime that necessitates a serious basic punishment, including revocation of political rights in the name of justice and protection of human rights, rather than simply returning state assets. (ramadani & mamonto w.w., 2019). the restorative approach may contradict the aims of efforts to eradicate corruption, because then efforts to form independent institutions in the field of anti-corruption such as the corruption eradication commission (kpk) will be questioned (ramadani & mamonto, 2018). banking crimes that are found are usually resolved through litigation. the police and prosecutors have the right to determine whether the crime should still be brought to litigation or can it be resolved internally with a number of provisions, for example: the material loss is not in a large amount and has been returned by the perpetrator; the perpetrator has received sanctions from bank indonesia, for example, termination of employment, or has been crossed out in the indonesian banking register; the perpetrator is not a recidivist; and there is no legal claim from the customer. based on these considerations, the public prosecutor will postpone the prosecution process against him. the new prosecution will be officially abolished if the perpetrator fulfills all the conditions that have been agreed upon. however, if the perpetrator fails or cannot fulfill the requirements, the public prosecutor can proceed with a formal prosecution. however, when a corporation becomes a suspect in a crime, a model such as dpa can be used. the public prosecutor may offer corporations not to be prosecuted in court a postponement of prosecution in exchange for the corporation admitting its actions and agreeing to voluntarily pay a fine and a certain amount of compensation to the public or the state. to be clear, if the corporation fails to fulfill the agreement reached with the public prosecutor, it will be prosecuted as a defendant in court. with a model like this, corporate crimes can be settled and state financial losses recovered more quickly (sinaga, 2021). conclusion settlement of a case outside the court, better known as "non-litigation" or "out of court settlement," is not something new in the legal system or legal practice in indonesia because it has long been implemented in civil cases. an out-of-court settlement can be carried out by the disputing parties to make peace. non-litigation dispute resolution against corporate banking crimes needs to be built using an injunction settlement institution, where the court, at the request of one of the litigants, can order a delay in examining the case if the applicant can prove that there are no clear and adequate legal means in the settlement or examination of the case so that losses will occur later when the application is granted. the concept of restorative justice can be applied as an alternative settlement for corporate banking crimes by establishing the bank indonesia banking mediation institution, which is tasked with carrying out non-litigation volume 6, issue 1, june 2023: 1 – 16 14 | restorative justice's approach… settlements using mediation. the deferred prosecution agreement policy can be an alternative dispute resolution that can be done outside the court, in the form of a deferred prosecution policy. acknowledgement thank you to the directorate general of higher education, research and technology, ministry of education, culture, research and technology, university of southeast sulawesi, faculty of law, university of southeast sulawesi, and the research team who helped and supported so that the research implementation and research results in the form of this article could be completed. reference artadi, i. 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(2020). chapter 13: justice for whom? the need for a volume 6, issue 1, june 2023: 1 – 16 restorative justice's approach… | 15 principled approach to deferred prosecution agreements in england and wales. in negotiated settlements in bribery cases (pp. 309–346). edward elgar publishing ltd. https://doi.org/https://doi.org/10.4337/9781788970419.00022 hijriani, h., borahima, a., irwansyah, i., & haeranah, h. (2022). justice corrects criminal accountability of fraud banking corporation. i t a l i e n i s c h, 12(2), 1005–1010. https://www.italienisch.nl/index.php/verlagsauerlander/article/view/440 hudi, n. (2021). pemidanaan tindak pidana perikanan berbasis kerugian ekonomi. perspektif hukum, 21(2), 222–234. https://doi.org/10.30649/ph.v21i2.98 hutauruk, r. h. (2013). penanggulangan kejahatan korporasi melalui pendekatan restoratif suatu terobosan hukum (cetakan ke). sinar grafika. iqbal, a. (2020). penerapan deferred prosecution agreement di indonesia sebagai alternatif penyelesaian tindak pidana ekonomi yang dilakukan oleh korporasi. jurnal yuridis, 7(1), 191. https://doi.org/10.35586/jyur.v7i1.1867 irwansyah, i. (2020). penelitian hukum: pilihan metode & praktik penulisan artikel. mitra buana media. koudijs, p., salisbury, l., & sran, g. (2021). for richer, for poorer: bankers’ liability and bank risk in new england, 1867 to 1880. the journal of finance, 76(3), 1541–1599. https://doi.org/https://doi.org/10.1111/jofi.13011 kristanto, a. (2020). peraturan jaksa agung no 15 tahun 2020 tentang penghentian penuntutan berdasarkan keadilan restoratif. lex renaissance, 7(1), 1–10. https://doi.org/10.20885/jlr.vol7.iss1.art14 kristina, m. (2018). formulasi pertanggungjawaban pidana korporasi dengan adanya peraturan mahkamah agung no. 13 tahun 2016. yustika: media hukum dan keadilan, 21(2), 1–11. https://doi.org/10.24123/yustika.v21i02.1709 kusuma, m. j. (2015). hukum perlindungan nasabah bank; upaya hukum melindungi nasabah bank terhadap tindak kejahatan ite di bidang perbankan. nusamedia. mutiara, f. (2019). peradilan sederhana, cepat, dan biaya ringan: menggagas penanganan tindak pidana korupsi melalui konsep plea bargaining dan defered prosecution agreement [universitas indonesia]. https://lontar.ui.ac.id/detail?id=20494857 ningsih, a. s. (2020). legal review of financial technology peer to peer lending based on indonesian collateral law perspective. substantive justice international journal of law, 3(2), 109–124. https://doi.org/10.33096/substantivejustice.v3i2.73 o’malley, p., & smith, g. j. d. (2020). ‘smart’ crime prevention? digitization and racialized crime control in a smart city. theoretical criminology, 26(1), 40–56. https://doi.org/10.1177/1362480620972703 oktarina, e. (2015). prosedur penyelesaian tindak pidana korporasi dalam perspektif restoratif. disiplin, 20(07), 11. volume 6, issue 1, june 2023: 1 – 16 16 | restorative justice's approach… pradityo, r. (2016). restorative justice dalam sistem peradilan pidana anak. jurnal hukum dan peradilan, 5(3), 58–85. https://www.jurnalhukumdanperadilan.org/index.php/jurnalhukumperadilan/article/view/25 prawitra thalib, ω, hajati, s., kurniawan, f., & aldiansyah, k. (2020). 5c principles in profit and loss sharing financing on baitul maal wattamwil as islamic micro finance in indonesia. substantive justice international journal of law, 3(2), 196–210. https://doi.org/10.33096/substantivejustice.v3i2.76 ramadani, r., & mamonto, m. a. w. w. (2018). independency of the corruption eradication commission of the republic of indonesia (kpk ri) in indicators of independent regulatory agencies (iras). substantive justice international journal of law, 1(2), 82. https://doi.org/10.33096/substantivejustice.v1i2.18 ramadani, r., & mamonto w.w., m. a. (2019). legalitas sanksi pidana pencabutan hak politik bagi terpidana korupsi: perspektif hak asasi manusia. petitum, 7(2), 63–71. https://doi.org/10.36090/jh.v7i2%20oktober.649 saija, r. (2017). hitam-putih hukum perbankan (cet.1). deepublish. setiyanto, b. (2012). peran bank indonesia dalam. yustisia jurnal hukum, 1(1), 33. shiner, r. a., & ho, h. (2018). deferred prosecution agreements and the presumption of innocence. criminal law and philosophy, 12(4), 707–723. https://doi.org/https://doi.org/10.1007/s11572-018-9454-0 sinaga, m. r. (2021). konsep deffered prosecution agreement (dpa) dalam upaya pemberantasan korupsi oleh korporasi di indonesia. de lega lata: jurnal ilmu hukum, 6(1), 80–97. tamara, t. (2008). mediasi perbankan sebagai alternatif penyelesaian sengketa antara bank dengan nasabah dalam rangka perlindungan nasabah. universitas indonesia. timasheff, n. s., sutherland, e. h., & cressey, d. (1955). principles of criminology. the american catholic sociological review, 162(2), 143. https://doi.org/10.2307/3708547 triputra, y. a. (2011). tipologi kejahatan perbankan ditinjau dari undang-undang nomor 10 tahun 1998 tentang perbankan. disiplin, 15(1), 20–26. wulandari, c. (2013). kebijakan nonpenal dalam penanggulangan tindak pidana perbankan. pandecta: research law journal, 8(2), 170. https://doi.org/10.15294/pandecta.v8i2.2683 zulkarnain sitompul. (2002). perlindungan dana nasabah bank suatu gagasan tentang pendirian lembaga penjamin simpanan di indonesia. in program pascasarjana. fakultas hukum, universitas indonesia. edit.indd volume 2, issue 1, june 2019 : 54 70 54 | legal protection on intellectual property rights in the development of creative economy in mamuju regency legal protection on intellectual property rights in the development of creative economy in mamuju regency suryansyah stie muhammadiyah mamuju email: uyasuryansyah@gmail.com abstract protection of legal intellectual property rights is the main pillar for businesses, especially those engaged in the creative economy business. the role of law can provide guarantees and legal certainty in creating a good economic climate and increasing people’s income derived from the results of the work of creativity, ideas and creativity. the creative economy becomes a strategic issue as a government effort in developing the regional economy, creating a climate of creation and innovation and leading to improving people’s welfare. the development of creative economic ventures in mamuju regency, west sulawesi province must be supported by a set of regional regulations, specifically those that regulate the protection of intellectual property rights of creative economy entrepreneurs. so that business people get protection, justice, benefit and legal certainty related to the work of copyright and innovation products owned. this study aims to examine the regional regulations of mamuju regency about the economy, especially the protection of intellectual property rights for creative economic business actors and identify the potential of the creative economy. data is collected through literature studies to trace data through regional regulation documents. the processed data from descriptive analysis is used as a basis for consideration and review of economic law. the results of this study are in the form of sources of economic law material and manuscripts of academic considerations, where the local government and the public can find out the legal position in the protection of intellectual property rights of creative economy entrepreneurs in mamuju regency. keywords : legal protection; intellectual property rights; creative economy; introduction intellectual property is the result of ideas in the form of ideas or ideas that are manifested or expressed in the form of inventions, literary and artistic works, designs, certain symbols/signs, creation of the layout of semiconductor components and breeding varieties. this expression will be a legal product and inherent into an intellectual property rights, intellectual property rights (ipr) if it is processed through applicable procedures and provisions so that ipr can be said to be a legal product in the form of rights arising from intellectual property generated. the intellectual property results are then used in the world of commerce to produce economic value for the inventors/creators of these creations. in its journey, intellectual property to become a product of ipr requires applicable procedures and procedures, for which regulations are in accordance with the law and volume 2, issue 1, june 2019 : 54 70 | 55 legal protection on intellectual property rights in the development of creative economy in mamuju regency government regulations. these procedures and stages are usually considered difficult and complex by intellectual property producers so that there are still many intellectual property results that have not yet been submitted by the ipr. the impact of this condition is that the economic benefits of ki that have been used by the public have not yet been optimized by intellectual property producers.1 a product that can be given ipr protection, then the product must be creative and innovative. a product is said to be creative and innovative in the perspective of ipr that the product can meet the criteria of each ipr regime. for the copyright of a product, it is said to be creative and innovative if it meets the criteria of originality, fixation and creativity. for patents, a product is said to be creative and innovative if the product meets the criteria of novelty, inventive steps and can be applied in industrial activities. must be new and not the same as the previous disclosures, and for trade secrets, the criteria that must be met is an effort to safeguard the information of economic value to the public. looking at these criteria, it is clear that the products requested by ipr should be creative and innovative. but unfortunately, currently there are still creative economic actors not paying attention to the existing criteria. as a result, existing products are not new or even counterfeit from pre-existing ones. the reality of ipr protection relating to the ipr registration system is in the form of registration procedures which are considered complicated, costly “expensive” and which tend to be uncertain so that they are not eventually registered. this certainly weakens legal protection and has implications for not protecting the products of the creative economy. other realities of ipr protection are related to ipr law enforcement. ipr law enforcement is still considered selective and lacks good and professional treatment. the lack of, law enforcement officers who have a good understanding of ipr also become a real reality in ipr law enforcement. as a result, creative economic products that have been registered with ipr cannot always be protected, even though the legal process should have been carried out. in general, intellectual property rights can be divided into two categories, namely: copyright and industrial property rights. whereas industrial property rights include patents, brands, industrial designs, layout designs of integrated circuits, trade secrets and plant varieties. intellectual property rights have been regulated by various laws and regulations in accordance with the demands of trips, namely law number 29 of 2000 (plant variety protection), law number 30 of 2000 (trade secret), law number 31 of 2000 (industrial design) law number 32 of 2000 (layout design of integrated circuits), law number 14 of 2001 (patent), law number 15 of 2001 (trademark), and law number 28 of 2014 1mujiyono, m., & ferianto, f. (2017). buku praktis: memahami dan cara memperoleh hak kekayaan intelektual. yogyakarta: sentra hki universitas negeri yogyakarta, p. 1. volume 2, issue 1, june 2019 : 54 70 56 | legal protection on intellectual property rights in the development of creative economy in mamuju regency (copyright). the issue of ipr itself is a problem that is quite difficult to overcome, aside from the application of legal regulations regarding copyright, it is still quite difficult, then copyright violators are increasingly increasing and increasingly difficult to act on, first the issue of improving the performance of legal instruments (law enforcement ) which needs to be improved, here are some data regarding prosecution of intellectual property rights violations. data from the directorate of economic and special crimes at bareksrim polri said that copyright cases were the most common in the period of 2011 – 2016. there were 616 cases, 274 cases, 16 design cases, 7 case patents and 3 case trade secrets. director general of intellectual property right, aidir amin daud said that his party synergized with law enforcement in dealing with intellectual property piracy. “the problem of pirated products is actually not only centred on the middle class community, but also can reach the government or large corporations. indeed, all parties need to be educated,” he said. chairperson of the indonesian anti-counterfeiting society or masyarakat indonesia anti pemalsuan (miap) justisiari p. kusumah said the big risk for internet users in indonesia was an attack on customer data, such as the one currently being handled by the agency of the republic of indonesia police criminal resort. in a recent study entitled cybersecurity risks from non-genuine software from the faculty of engineering, national university of singapore (nus), 92% of computers and laptops using fake software were infected with malware. the study, which was initiated by microsoft, was completed in june 2017 and covers the asian region. pacific. the focus of research is on the risk of malware infections in software from the use of pirated products and active exploitation by cybercriminals from these malicious programs. this study took 458 samples from eight asia pacific countries, such as indonesia, sri lanka and thailand. the samples taken were divided into 203 pirated software download activities, 90 computers and laptops using pirated software, and 165 cds and dvds with pirated software. in his presentation, assistant general counsel of microsoft asia digital crime unit keshav s. dhakad explained that the software for productive activities ranked the highest among those infected with malware with a percentage of 42%, followed by the operating system (29%), games and applications (19%) and antivirus (17%).2 with the explanation presented by the author above, it can be drawn the legal problem of protecting intellectual property rights in the development of the creative economy in mamuju regency, namely, how is the legal position of the protection of intellectual property rights of creative economy entrepreneurs in mamuju regency. 2issetiabudi, d. e. (2017). penegakan hukum: kasus hak cipta paling banyak muncul. bisnis.com. retrieved from https://kalimantan.bisnis.com/read/20171011/439/697940/javascript volume 2, issue 1, june 2019 : 54 70 | 57 legal protection on intellectual property rights in the development of creative economy in mamuju regency method this study uses descriptive analysis, analysis of data tailored to the purpose of the study which includes the analysis used for fact-finding which is then interpreted according to the research problem. descriptive analysis is done to find out the existence of independent variables, both on one or more variables without making comparisons and looking for the relationship of the variable with other variables. descriptive analysis will get a picture related to the legal position in the protection of intellectual property rights of creative economy entrepreneurs in mamuju regency, west sulawesi province. this research was conducted in january to february 2019 which focused on the area of mamuju regency, west sulawesi. the type of data consists of primary data and secondary data. primary data was obtained using the interview method with the regional government of mamuju regency. while secondary data was obtained from the legislation regulations, the central bureau of statistics and the office of cooperatives and micro, small and medium enterprises of the mamuju district government, and used interview data collection techniques and library studies. analysis and discussion a. the concept of creative economy creativity is a desire to create something new, unique, and different. the creative industry is an industry that originates from the use of creativity, skills and individual talents to create prosperity and employment through the creation and utilization of the individual’s creative and creative power. meanwhile, the creative economy according to the first dictum of indonesian presidential instruction number 6 the year 2009 concerning the development of the creative economy: “economic activities based on creativity, skills and individual talents to create the creative and creative power of individuals who have economic value and influence the welfare of the indonesian people.” urgency of the creative economy includes: promoting sustainable economic growth because of ideas and creativity are always renewable resources; lifting the image and identity of the indonesian nation through works and products, as well as creative people who gain recognition in the international community and also become mediators of cross-national cultural diplomacy; and preserving natural resources and cultural resources of indonesia, because creative economy is a sector that can create products and works with high added value with limited resources.3 3nonalisa, s., isnawati, s., satika, a., sukma, w. l., wirbuana, p. w., prastyo, j. i., & sakinah, p. (2017). tenaga kerja ekonomi kreatif 2011 – 2016 (r. agustiyani, e. sriyanto, & k. bachrun eds.). jakarta: badan pusat statistik bekerjasama dengan bekraf, p. 9. volume 2, issue 1, june 2019 : 54 70 58 | legal protection on intellectual property rights in the development of creative economy in mamuju regency types of creative economy sub-sectors:4 1. craft, parts of applied art that are the meeting point between art and design that are sourced from traditional heritage or contemporary ideas whose results can be in the form of works of art, functional products, decorative and decorative objects, and can grouped based on material and exploration of the technical tools used, and also thematic products. 2. culinary, activities of preparation, processing, presentation of food and beverage products that make elements of creativity, aesthetics, tradition, and/or local wisdom; as the most important element in enhancing the taste and value of the product, to attract purchasing power and provide experience for consumers. 3. fashion, a lifestyle in appearance that reflects self-identity or group. 4. architecture, a manifestation of the results of the application of knowledge, science, technology, and the whole in composing the built environment and space, as part of human culture and civilization so that it can unite with the entire space environment. 5. interior design, activities that solve the function and quality problems of the interior, provide services related to interior space to improve the quality of life; and fulfil the aspects of health, security, and public comfort. 6. visual communication design, arts of communication by using visual language delivered through the media in the form of a design that aims to inform, influence and change the behavior of the target audience in accordance with the goals to be realized. in this case, the form used is in the form of graphics, signs, symbols, illustrations/photographs, typography/letters and so on. 7. product design, a element of advancing the industry so that the industrial products can be accepted by the community because the products they get have good quality, affordable prices, attractive designs, get guarantees and so on. the industrial design society of america (idsa) defines product design as a professional service that creates and develops concepts and specifications that optimize the function, value and appearance of a product and system for the benefit of both users and manufacturers. b. intellectual property rights in creative economy development ipr abbreviated as intellectual property rights5 and bambang kesowo defines ipr as a right to wealth that arises or is born due to human intellectual abilities6 4ibid., p. 10. 5the opinion of robert m. sherwood, intellectual property and economic development, sherwood stated that there are two meanings contained in the concept of intellectual property rights. first, private creativity. second, public protection forthe result of creativity. vide kurnia, t. s. (2011). perlindungan hukum merek terkenal di indonesia pasca perjanjian trips. bandung: pt. alumni, p. 105. 6kesowo, b. (1998). gatt, trips dan hak atas kekayaan intelektual (haki). jakarta: mahkamah agung ri, p. 160. volume 2, issue 1, june 2019 : 54 70 | 59 legal protection on intellectual property rights in the development of creative economy in mamuju regency jill mc keough and andrew stewart define ipr as a set of rights granted by law to protect economic investment from creative endeavors. while the director general of intellectual property rights in collaboration with ecap defines ipr as the rights arising from the results of brain thinking that produces a product or process that is useful for humans.7 the ipr classification after the uruguay round is contained in an agreement called the trips agreement. this is more specifically regulated in part ii about standards of the availability scope and use of intellectual property rights. more complete classification of ipr based on trips agreement consists of: 1) copyrights and related rights; 2) trademarks; 3) geographical indications; 4) industrial designs; 5) patent; 6) layout designs (topographies) of integrated circuits; 7) protections of undisclosed information; 8) control of anti-competitive practices in contractual licenses. in indonesia, in classifying iprs it does not fully adapt to the division as in the trips agreement, even though in terms of norms it has been adjusted to the standards contained in the trips agreement. the classification of ipr in indonesia can be seen as follows: 1) copyright and related rights; 2) patents; 3) brand; 4) industrial design; 5) integrated circuit layout design; 6) trade secrets; 7) protection of plant varieties. conceptually each part of the ipr above can be described in detail as follows. copyright is an exclusive right for the creator or recipient of the right to announce or reproduce his work or give permission to do so by not reducing the restrictions according to applicable laws and regulations. the scope of copyright includes the results of intellectual work in the form of works of art, literature and science. copyright is obtained automatically when the work is manifested. however, it is possible to register copyright requirements with the directorate general of ipr the indonesian ministry of law and human rights. the period of copyright protection stipulated in the provisions of copyright law in indonesia is quite varied, namely; the first is valid for the life of the creator and continues until 50 (fifty) years after the creator dies, for the type of work in the form of books, pamphlets, and all other written works, drama or musical drama, dance, choreography, all forms of art, such as painting, sculpture and sculpture, batik art, songs or music with or without text, architecture, lectures, lectures, speeches and other similar creations, props, maps, translations, interpretations, adaptations, and flowers. second, valid for 50 (fifty) years from the first time the publication is in the form of a computer program, cinematography, photography, database, and the result of the transfer of material and thirdly, the work controlled by the state applies indefinitely. patents mean exclusive rights granted by the state to inventors or the results of their 7utomo, t. s. (2010). hak kekayaan intelektual (hki) di era global: sebuah kajian kontemporer. yogyakarta: graha ilmu, p. 2. volume 2, issue 1, june 2019 : 54 70 60 | legal protection on intellectual property rights in the development of creative economy in mamuju regency inventions in the field of technology, which for a certain period of time carry out their own inventions or give their consent to other parties to carry out them. the scope of patents8,9,10 is in inventions in the field of technology which are problem-solving. this invention has the form of a product or process or it can also be the development/improvement of a product or process. the requirements of an invention can be substantially patented, there are three, namely; novelty requirements, inventive step requirements and can be applied in applicable industries. patents are obtained by registration (first to file principle). however, in some countries such as the united states patents are obtained based on the first to invent principle. indonesia itself adheres to the registration system (first to file principle). registration is done to the directorate general of the ministry of law and human rights of the republic of indonesia. there are two types of patents, namely patents and simple patents. the period of protection for patents is 20 (twenty) years from the date of receipt and the time period cannot be extended. a simple patent is given for a period of 10 years from the date of receipt and the period cannot be extended. about brand11 is a sign in the form of an image, name, letters, numbers, and arrangement of colours or a combination of all those that have a distinguishing power and are used in the activity of trading goods or services. rights to the brand can be obtained through the registration system (first to file principle) not based on the first use system (first to use principle). in indonesia, to obtain brand rights, it must go through a registration system. if the brand has been registered, the rights to the brand arise. the right to the brand is an exclusive right granted by the state to the owner of the brand registered in the general register of marks for a certain period of time by using the brand itself or giving permission to other parties to use it. there are two types of brands, namely trademarks and services. trademarks are brands that are used on goods traded by a person or several people jointly or a legal entity to distinguish from other types of goods. service marks are brands that are used on services traded by a person or several people jointly or legal entities to differentiate from other similar services. the period of protection for the brand is 10 years from the date of receipt and the period of protection can be extended. 88history of patent applications in indonesia can be seen in maulana, i. b. (2000). penerapan paten sejak uu paten no. 6 tahun 1989 hingga uu paten no. 13 tahun 1997. in i. b. maulana, r. khairandy, & nurjihad (eds.), kapita selekta hak kekayaan intelektual (vol. 1). yogyakarta: pusat studi hukum uii yogyakarta bekerjasama dengan yayasan klinik haki jakarta. 9khairandy, r. (2000). pengalaman indonesia selama ini. in i. b. maulana, r. khairandy, & nurjihad (eds.), kapita selekta hak kekayaan intelektual (vol. 1). yogyakarta: pusat studi hukum uii yogyakarta bekerjasama dengan yayasan klinik haki jakarta. 10purwaningsih, e. (2005). perkembangan hukum intellectual property rights: kajian hukum terhadap hak atas kekayaan intelektual dan kajian komparatif hukum paten. jakarta: ghalia indonesia. 11brands have a function to differentiate; guarantee function; promotion function; and investment stimulation and economic growth functions. vide purwaningsih, e. (2012). hak kekayaan intelektual (hki) dan lisensi. bandung: cv. mandar maju, p. 53. see also astarini, d. r. s. (2009). penghapusan merek terdaftar. bandung: pt. alumni. volume 2, issue 1, june 2019 : 54 70 | 61 legal protection on intellectual property rights in the development of creative economy in mamuju regency the industrial design scope covers the creative aspects of form, configuration and composition which contain aesthetic elements which are usually used in industrial and craft activities. the right to industrial design itself is obtained by using a registration system. after registration of an industrial design, the right to industrial design arises. the right to industrial design is the exclusive right granted by the republic of indonesia to the designer for his creation for a certain period of time carrying out his own approval or consent others to implement this right. the period of protection for industrial design is 10 years from the date of receipt. the scope of trade secrets includes information that is personal, has economic value and is kept confidential. to obtain the right to trade secrets is based on fulfilling the requirements of the trade secret itself. ipr, when connected with the development of the creative economy, has a very strong relationship. the relation lies in; first, ipr can become an institution in producing creative economic products that are more innovative and contain novelty elements. this understanding is obtained, wherein the ipr is known as the ipr database system that is useful and useful for the development of a product including creative economic products; secondly, ipr can be used as an instrument for efforts to document a creative and effective economic product. in documenting creative economic products through ipr it is usually documented that it is not only related to the product itself, but also includes product-producing documentation accompanied by shreds of evidence of the law; and third, ipr can be used as a means in terms of legal protection for a creative economic product. in this ipr system every person who has succeeded in making a product, then by taking certain procedures, he can be considered as the holder of exclusive rights. with the possession of exclusive rights, he can defend from other parties who use it in a legal manner. c. trademark protection and legal problem issues in the development of the creative economy. creative industries in indonesia, as written in the 2009 – 2015 national creative economy development blueprint (2008) are: “industries originating from the use of creativity, individual skills and talents to create prosperity and employment through the creation and utilization of the individual’s creative and creative power.” it can be concluded that the creative economy in conjunction with the creative industry is an economic activity that includes industry with the creativity of human resources as the main asset for creating economic added value.12 linkages to intellectual property rights that usually intersect with the law. intellectual property consists of: 12sgrhrbstn. (2013, 2 april). ekonomi kreatif by indonesiakreatif.net. sgrhrbstn. retrieved from https:// sgrhrbstn.wordpress.com/2013/04/02/ekonomi-kreatif-by-indonesiakreatif-net/ volume 2, issue 1, june 2019 : 54 70 62 | legal protection on intellectual property rights in the development of creative economy in mamuju regency • copyright, • industrial property rights, • patents, • industrial design, • brands, • integrated circuit layout design, • trade secrets, and • plant varieties. every creative economy needs a distinguishing element when starting its business. this differentiating element is not only from the form of product or service that is presented but also included in the brand. this is what makes the brand an essential element or important in every creative economy that is run. the origin of the brand actually dates back to medieval times in europe, namely when trade with the outside world began to develop. the function of the original brand is only to show the origin of the product in question. only after the introduction of mass production methods and with a wider and more complex distribution and market network, the function of the brand developed into what is known in the present.13 according to amalia roosseno, actually in indonesia the brand law has been developed to arrive at the regulation of trade dress, namely in 1930 when the medan district court (landraad) judge examined the colgate vs. maising case.14 law number 15 year 2001 concerning trademark is then changed to law number 20 of 2016 concerning trademarks and geographical indications itself giving an understanding of brands and being divided into trademarks and service marks. a brand is a sign in the form of an image, name, word, letters, numbers, arrangement of colours, or a combination of these elements which have distinguishing features and are used in the activity of trading goods or services. trademarks are trademarks that are used on goods traded by a person or several people jointly or entities on services traded by a person or several people jointly or a legal entity to differentiate from other similar services. in article 3 of law number 15 of 2001 concerning trademark law number 20 year 2016 concerning trademark, it is determined that the right to trademark is an exclusive right granted by the state to the trademark owner registered in the trademark general register for a certain period of time using the trademark itself or give permission to other parties to use it. so those who own this brand are the owners 13kesowo, b. (1995). pengantar umum mengenai hak atas kekayaan intelektual (haki) di indonesia. in penataran dosen hukum dagang se-indonesia. yogyakarta: universitas gadjah mada, p. 16. 14rooseno, a. (2004). aspek hukum merek. in lokakarya terbatas masalah-masalah kepailitan dan wawasan hukum bisnis lainnya. jakarta: mahkamah agung bekerjasama dengan pusat pengkajian hukum. vide hendrawan, d. (2015). ekonomi kreatif dan merek. zenit, universitas kristen maranatha, 4(1), p. 22. volume 2, issue 1, june 2019 : 54 70 | 63 legal protection on intellectual property rights in the development of creative economy in mamuju regency of those who register the brand for the first time and who have good intentions. this intention was seen at the time of registration of the mark. not all brands can be registered. there are several brands that cannot be registered. trademarks that cannot be registered are brands that contain elements: • contrary to applicable laws and regulations, religious morality, decency, or public order; • does not have distinguishing power; • has become public property; or • is a statement or relating to goods or services that are requested for registration. in addition to brands that are prohibited from being registered, when they have been requested, the directorate general can also cancel brands that have elements: • having equality in principle or in whole with marks owned by other parties that have been registered in advance for similar goods and/or services; • having equality in principle or in whole with a mark which has been known to belong to another party for similar goods and/or services; • similarities in principle or the whole with known -geographic indications; • resembles the name of a famous person, photo, or name of a legal entity owned by another person, except with written consent from the rightful person; • imitation or resembles a name or abbreviation of a name, flag, symbol or symbol or national or international institution, except with written approval from the competent party; • imitation or resembles a sign or stamp or official stamp used by the state or government institution, except with written approval from the competent authority. brand holders are entitled to legal protection as long as the mark is registered. registered trademarks receive legal protection for a period of 10 years from the acceptance date and the period of protection can be extended. the registered brand owner can apply for an extension for the same period of time each time. application for the extension as referred to in paragraph (1) shall be submitted in writing by the owner of the mark or his authority within 12 months prior to the expiration of the registered mark’s protection period. the application for the extension is submitted to the directorate general of intellectual property rights. the application for the extension of the brand will be approved if the: • mark concerned is still used in the goods or services as mentioned in the brand certificate; and • goods or services that are extended by their brands are still produced and traded. in terms of supporting users of well-known brands and also increasing the popularity of a brand or product, this brand can be transferred to other parties. rights to registered marks can be transferred or transferred because: volume 2, issue 1, june 2019 : 54 70 64 | legal protection on intellectual property rights in the development of creative economy in mamuju regency • inheritance; • will; • grant; • agreement; or • other causes justified by the laws and regulations. the transfer of rights to the mark shall be requested for registration to the directorate general of intellectual property rights to be recorded in the general register of brands accompanied by supporting documents and announced in the official news of the brand. if the transfer of rights to the registered trademark is not recorded, it may not be detrimental to the other party. the transfer of rights to a registered mark can be accompanied by the transfer of good name, reputation, or others related to the mark, but the right to a registered service mark that cannot be separated from the ability, quality, or personal skills of the service provider can be transferred with the provision must be guaranteed. the quality of service delivery. according to law number 15 of 2001 concerning trademarks, law number 20 year 2016 concerning trademarks owners of registered brands have the right to give licenses to other parties under an agreement that the licensee will use the mark for part or all types of goods or services. the license agreement is valid throughout the territory of the republic of indonesia unless otherwise agreed, for a period not longer than the protection period of the registered mark concerned. registration of licenses must be filed with the directorate general with fees and legal provisions from the recording of the licensing agreement in force to the parties concerned and to third parties. according to law number 15 year 2001 concerning trademarks. law number 20 year 2016 concerning trademarks, license agreements are prohibited from making provisions that directly or indirectly can cause adverse effects on the indonesian economy or contain restrictions that impede the ability of the indonesian nation to master and develop technology in general. it is cancelled on the basis of equality in principle or the whole with other registered marks, still entitled to carry out the license agreement until the end of the license agreement period and is no longer obliged to continue the royalty payment to the canceled licensor, but must pay royalties to the owner of the brand that is not canceled. d. legal standing for the protection of intellectual property rights against the development of creative economy in mamuju regency regency is one of the districts formed based on law number 29 the year 1959 concerning the formation of level ii regions in sulawesi within the territory of the south sulawesi province. mamuju is the capital of west sulawesi province, volume 2, issue 1, june 2019 : 54 70 | 65 legal protection on intellectual property rights in the development of creative economy in mamuju regency which holds a million treasures. starting from a very strategic location, a large area to abundant natural wealth. this area has an area stretching from the border of tapalang district to sampaga district. mamuju is directly opposite the makassar strait and kalimantan island in the west which is a bustling national trade route and the trans sulawesi west coast land route which is the main trade route that connects cities on the island of sulawesi. besides having a very strategic location, mamuju regency also has abundant natural wealth even though until now most of its potential has not been well managed. the potential of natural resources owned by this region comes from several sectors, namely: agriculture and animal husbandry sector, plantation and forestry, fisheries and marine affairs, and the mining and energy sector. in addition, to reach mamuju regency which is also the capital of west sulawesi province which is the 33rd province in indonesia can be reached by aeroplane based at tampapadang airport, kalukku district, about 35 kilometres from mamuju city. other supporting factors include accommodation facilities such as adequate hotels and inns, restaurants and restaurants and telephone facilities in the form of telkom and cellular telephones as well as banks that are ready to serve the needs of prospective investors visiting the area. especially for tourism, this area also has potential that is not inferior to other regions. the tourism potential is in the form of marine tourism, nature tourism and cultural tourism. in the city of mamuju itself, the mamuju regional government has been trying to build a creative economy through government programs, one of which is the development of a creative economy through the use of local food processing to support the increase in income per capita of the community.15 creative economic development is in line with the mission of the mamuju district government, namely to increase the ability and economic independence of the community, through business development and home industry and support for improving public transportation, said mamuju regent habsi wahid. he conveyed this at the institute for the development of appropriate local communities of indonesian technology (lembaga pengembangan teknologi tepat guna-masyarakat lokal indonesia – lpttg – malindo) director’s expose and the inauguration of the mamuju community economic business development forum (forum pengembangan usaha ekonomi masyarakat fpuem) which took place in the local regent’s office pattern room on sunday. therefore, he said, the mamuju district government invited every village in mamuju regency to utilize the food in their respective regions. no doubt, mamuju is rich in local food such as corn, cassava, pumpkin and several other local 15putra, a. h. p. k., nasir, m., & buana, a. p. (2018). mengungkap keberhasilan tax amnesty: studi kasus pada kpp pajak pratama makassar utara. jurnal akuntansi dan pajak, sekolah tinggi ilmu ekonomi aas surakarta, 19(1), p. 66. volume 2, issue 1, june 2019 : 54 70 66 | legal protection on intellectual property rights in the development of creative economy in mamuju regency foods. “the economic opportunity in mamuju is very large. so we try to generate creative economic activities in mamuju, one of which is by processing the food around us. i hope that every village has a superior product of the creative economy,” habsi said. so, he said, the active role of economic actors in each village is highly expected, especially the role of the pemberdayaan kesejahteraan keluarga (pkk) driving team in each village to be able to spearhead the creative economic activities. “the pkk driving team can provide guidance to every creative economic actor in his area. this is what should be used as well as possible,” he said. on the same occasion, director of lpttg – malindo sakaruddin also exposes the business he initiated in masamba district, south sulawesi, which has succeeded in processing approximately 260 types of marine, agricultural and plantation fisheries products. being dried food (snacktortilla) worthy of local/export market products. in the brief meeting, sakaruddin had time to share tips on success in carrying out creative economic activities. according to him, economic actors must work by combining the brain, muscle and heart to achieve maximum results. “capital is not the main thing but skill and mindsets, both tools and the third is capital,” said sakaruddin. demonstrating its seriousness in processing food into a product of the creative economy of the community, the mamuju district government gave every village the opportunity to send four representatives of creative economic actors to study directly at lpttg-malindo, for 10 days. with hope, the mamuju district government mission can truly be realized.16 then another effort carried out by the mamuju government was the implementation of a dedicated day safari for the people (sahabat rakyat) which is a regional government program of mamuju regency in bringing services to the community, now looking increasingly creative, with these activities can increase innovation from each sub-district due to activities. this activity, one of which is a creative economic exhibition, produces local products from the mamuju region and even the regional government hopes that this program can survive and be carried out in other areas in mamuju regency.17 from the creative ideas that emerged in mamuju regency is a positive trend that is present in the mamuju area which is the capital city of west sulawesi province which is starting to develop, this is a normal trait for developing regions, because the regions that develop automatically lead to conditions the community is also developing, one of the things we mentioned above is creative ideas that can be used as a source of income and an increase in the regional economy, as we know the mamuju region 16ahmad, a. (2016). mamuju kembangkan ekonomi kreatif. antaranews.com. retrieved from https:// makassar.antaranews.com/berita/74512/mamuju-kembangkan-ekonomi-kreatif 17bukhori, s. a. (2018). bupati mamuju kunjungi pameran ekonomi kreatif di sampaga. mamujupos.com. retrieved from https://mamujupos.com/bupati-mamuju-kunjungi-pameran-ekonomi-kreatif-di-sampaga volume 2, issue 1, june 2019 : 54 70 | 67 legal protection on intellectual property rights in the development of creative economy in mamuju regency which has the potential for agriculture quite rapidly, and is one of the biggest sources of income from the community. however, with the emergence of creative ideas, collaboration between natural resources in mamuju regency and creative ideas of the community will produce creative economies which are now fully supported by the central government through the establishment of an institution called the creative economy agency (badan ekonomi kreatif – bekraf) then there is no reason for the regional government to refuse or not support the development of the creative economy in the region, because the central government has fully supported its aim to empower the people in each region, through the development of a creative economy. in addition, the process of development of the creative economy must be supported by digitalization systems or what we are more familiar with information digitalization, namely the process of transforming various information, news from analogue format into format digital so that it is easier to produce, store, manage, and distribute. information that is digitalized can be presented in the form of text, numbers, audio, visual, which contains ideology, social, health and business. so many products from creative economic actors are not in line with expectations or behavior, one of the reasons is problematic marketing process, then constrained on the issue of promotion, especially when the promotion and advertising are no longer carried out as before through brochures or print media, almost all promotions are carried out through internet media, both websites, blogs and social media, because in the digitalization era as now information is more and faster obtained through the internet than through print media. so the discussion above we can see that the issue of intellectual property rights will have an impact on the problem of increasing the creative economy, one of which is the issue of the use of trademarks, for example in mamuju regency, which will develop creative economies. especially from the regional government so that the products sold have legal certainty and are not problematic in the future. the government’s efforts in overcoming the problem first are direct assistance in improving the creative economy, especially in the area of public understanding of the importance of trademark registration so that trademarks used by creative economic actors in mamuju regency have legal certainty about the products produced in accordance with potential resources nature owned by mamuju regency, second is the making of regulations in the form of regional regulations that specifically provide legal certainty for creative economic business actors even though it has been regulated in the brand law, there is no harm in regional government also supporting through the creation of regional regulations that protect economic actors creative and creative economy improvement in mamuju district, because the potential in a region that knows better is the local government itself, so the regional government volume 2, issue 1, june 2019 : 54 70 68 | legal protection on intellectual property rights in the development of creative economy in mamuju regency should make regulations regarding issues of intellectual property rights intestine to improve the creative economy in mamuju district. conclusion creative industries cannot develop independently and separate from other sectors. creative industries support each other and collaborate with other sectors, starting from the education, technology, trade, tourism, defence, politics, social and cultural sectors. creative products are created and distributed on various platforms. in the current mamuju regency, a trend that has begun to grow among young people, the strengthening of creative economic activities. we can observe this in business growth, especially in the manakarra coast region. it’s just not yet become a large and significant industry and the availability of facilities in its development. the products produced are also tailored to the minimal market demand, and most marketing methods are marketed in a simple way, for example through the internet, social media, and from door to door. indonesia has a regulation that is assessed in accordance with the rules in the creative economy, namely law number 20 the year 2008 concerning msmes, law number 33 the year 2009 concerning film encouraging the development of the film industry, law number 3 the year 2014 concerning industry encourages the development of the national creative industry, law number 28 the year 2014 concerning copyright provides intellectual property protection for creative works, and law number 7 the year 2014 concerning trade encourages product trade based on the creative economy. the regional government of mamuju regency needs to formulate a regional regulation that can provide legal guarantees and certainty to the intellectual property of creative entrepreneurs in mamuju regency. currently in mamuju regency west sulawesi province does not yet have a creative industry centre, both from production and marketing activities. it is important, the local government to build complex and creative industrial facilities, where each actor and creative industry elements collaborate with each other and are easy to bring together creative industry producers and consumers. everything will not be achieved properly, if it is not supported politically by the ruling party or in other words if there is no political-will from each stakeholder, especially for the mamuju regional government. reference ahmad, a. (2016). mamuju kembangkan ekonomi kreatif. antaranews.com. retrieved from https://makassar.antaranews.com/berita/74512/mamuju-kembangkanekonomi-kreatif astarini, d. r. s. (2009). penghapusan merek terdaftar. bandung: pt. alumni. volume 2, issue 1, june 2019 : 54 70 | 69 legal protection on intellectual property rights in the development of creative economy in mamuju regency bekraf. (2017). rencana pengembangan ekonomi kreatif indonesia (vol. 1). jakarta: badan ekonomi kreatif. bukhori, s. a. (2018). bupati mamuju kunjungi pameran ekonomi kreatif di sampaga. mamujupos.com. retrieved from https://mamujupos.com/bupati-mamujukunjungi-pameran-ekonomi-kreatif-di-sampaga djumhana, m., & djubaedillah, r. (1997). hak milik intelektual: sejarah, teori dan prakteknya. bandung: pt. citra aditya bakti. hendrawan, d. (2015). ekonomi kreatif dan merek. zenit, universitas kristen maranatha, 4(1), 17 – 24. hill, n. (2007). berpikir dan menjadi kaya (a. subiyanto, trans.). jakarta: ramala books. issetiabudi, d. e. (2017). penegakan hukum: kasus hak cipta paling banyak muncul. bisnis. com. retrieved from https://kalimantan.bisnis.com/read/20171011/439/697940/ javascript kesowo, b. (1995). pengantar umum mengenai hak atas kekayaan intelektual (haki) di indonesia. in penataran dosen hukum dagang se-indonesia. yogyakarta: universitas gadjah mada. kesowo, b. (1998). gatt, trips dan hak atas kekayaan intelektual (haki). jakarta: mahkamah agung ri. khairandy, r. (2000). pengalaman indonesia selama ini. in i. b. maulana, r. khairandy, & nurjihad (eds.), kapita selekta hak kekayaan intelektual (vol. 1). yogyakarta: pusat studi hukum uii yogyakarta bekerjasama dengan yayasan klinik haki jakarta. kurnia, t. s. (2011). perlindungan hukum merek terkenal di indonesia pasca perjanjian trips. bandung: pt. alumni. maulana, i. b. (2000). penerapan paten sejak uu paten no. 6 tahun 1989 hingga uu paten no. 13 tahun 1997. in i. b. maulana, r. khairandy, & nurjihad (eds.), kapita selekta hak kekayaan intelektual (vol. 1). yogyakarta: pusat studi hukum uii yogyakarta bekerjasama dengan yayasan klinik haki jakarta. mujiyono, m., & ferianto, f. (2017). buku praktis: memahami dan cara memperoleh hak kekayaan intelektual. yogyakarta: sentra hki universitas negeri yogyakarta. nonalisa, s., isnawati, s., satika, a., sukma, w. l., wirbuana, p. w., prastyo, j. i., & sakinah, p. (2017). tenaga kerja ekonomi kreatif 2011 – 2016 (r. agustiyani, e. sriyanto, & k. bachrun eds.). jakarta: badan pusat statistik bekerjasama dengan bekraf. volume 2, issue 1, june 2019 : 54 70 70 | legal protection on intellectual property rights in the development of creative economy in mamuju regency purwaningsih, e. (2005). perkembangan hukum intellectual property rights: kajian hukum terhadap hak atas kekayaan intelektual dan kajian komparatif hukum paten. jakarta: ghalia indonesia. purwaningsih, e. (2012). hak kekayaan intelektual (hki) dan lisensi. bandung: cv. mandar maju. putra, a. h. p. k., nasir, m., & buana, a. p. (2018). mengungkap keberhasilan tax amnesty: studi kasus pada kpp pajak pratama makassar utara. jurnal akuntansi dan pajak, sekolah tinggi ilmu ekonomi aas surakarta, 19(1), 60 – 68. rooseno, a. (2004). aspek hukum merek. in lokakarya terbatas masalah-masalah kepailitan dan wawasan hukum bisnis lainnya. jakarta: mahkamah agung bekerjasama dengan pusat pengkajian hukum. sgrhrbstn. (2013, 2 april). ekonomi kreatif by indonesiakreatif.net. sgrhrbstn. retrieved from https://sgrhrbstn.wordpress.com/2013/04/02/ekonomi-kreatif-by-indonesiakreatifnet/ usman, r. (2003). hukum hak atas kekayaan intelektual: perlindungan dan dimensi hukumnya di indonesia. bandung: pt. alumni. utomo, t. s. (2010). hak kekayaan intelektual (hki) di era global: sebuah kajian kontemporer. yogyakarta: graha ilmu. yudistira, a. b. (2016). regulasi untuk mendukung pengembangan ekonomi kreatif. badan ekonomi kreatif. retrieved from https://www.bekraf.go.id/berita/page/8/ regulasi-untuk-mendukung-pengembangan-ekonomi-kreatif . . edit.indd volume 2, issue 1, june 2019 : 71 88 | 71 implementation of human rights protection towards in penitentiary of children in makassar implementation of human rights protection towards in penitentiary of children in makassar mursyid mursyid faculty of law, universitas muslim indonesia email: mursyid.mursyid@umi.ac.id abstract the urgency of child protection encourages a variety of efforts carried out by the government and society because it is considered not only to protect children as human beings but also as part of national development. crimes or violations committed by the child then serve the sentence set by the juvenile justice process should still get full protection because it is considered the child still has a long future and the opportunity to build a nation after undergoing accountability errors that make it a human hope for the future come. the purpose of the study is to analyze the implementation of protection of human rights and the factors that influence the implementation of human rights protection for children in the makassar correctional institution. as a result, the implementation of human rights against child prisoners is still less effective, because conceptually and in reality there has not yet been a clear difference between the implementation of human rights for adult prisoners. this study shows that there is no specific pattern that is applied in implementing human rights to children, where the practice of implementing child prisoner formation is still not in accordance with the basic idea, namely providing protection in order to achieve child welfare. the factors are legislation, facilities and infrastructure, organizational structure, human resources and administrative management, and not yet integrated handling of the implementation of human rights for child inmates by the entire criminal justice system. keywords : human rights protection; prisoner; children; penitentiary; introduction problems and efforts to protect children seem to never stop being discussed, because it is our duty together to always seek various efforts in order to provide protection for children in all fields. child protection as the nation’s successor is a field of national development,1 because protecting children means protecting humans and building whole people,2 therefore the protection of children is also aimed at children who experience behavioral problems (violations of young age), because the child who commits a crime is not because he has an evil nature, but because the child’s condition is unstable due to circumstances that come from the child himself or from the outside, namely the environment surrounding it.3 1febriana, a. (2017). penegakkan hukum terhadap anak yang melakukan tindak pidana pencabulan dalam konsep restorative justice. adil: jurnal hukum, universitas yarsi, 7(2), p. 203. 2pramukti, a. s., & primaharsya, f. (2018). sistem peradilan pidana anak. yogyakarta: media pressindo, p. 15. 3ibid., p. 18. volume 2, issue 1, june 2019 : 71 88 72 | implementation of human rights protection towards in penitentiary of children in makassar another important consideration to be observed is for the growth and mental development of children in their growth towards adulthood, on the basis of these needs, it is deemed necessary to determine the difference in treatment under procedural law and its criminal threat. setting exceptions and provisions stipulated in law no. 8 of 1981 concerning the criminal procedure code, the old implementation of detention is determined in accordance with the interests of the child and the differentiation of the threat of punishment for children is determined by law no. 5 of 1998, law no. 39 of 1999, law no. 35 of 2014 concerning amendments to law no. 23 of 2002 concerning child protection and law number 11 of 2012 concerning the criminal justice system for children whose criminal imprisonment is determined (one half) of the maximum, the threat of capital punishment and life imprisonment is not applied to children. differences in treatment and threats stipulated in the act above are intended to better protect and protect the child so that he can support his long future. in addition, this distinction is intended to provide an opportunity for children so that through guidance they will get their identity to become human beings who are independent, responsible, and useful for themselves, their families, communities, nations and countries.4 judge’s decision will affect the next life of the child concerned,5 therefore the judge must be sure that the decision will be a strong basis for returning and regulating children towards a good future to develop themselves as citizens who are responsible for family life, nation and state. to further strengthen efforts to guide and provide guidance for children who have been decided by the judge, the child will be accommodated in the child correctional institution. various considerations through thoughts and rules are contained as well as in order to realize a judiciary that pays attention to the protection and interests of the child as aspired,6 then it is necessary to regulate the provisions regarding the implementation of a court specifically for children in the general court environment, thus the effectiveness of the juvenile court is expected to provide appropriate direction in fostering and protecting children.7 the description of the phenomena concerning the rights of child prisoners which until now has not been fully implemented8 which must be considered and given protection, especially child development that is very sensitive to the surrounding environment. so according to this article, it is considered necessary to describe various descriptions of how 4wahyudi, s. (2009). penegakan peradilan pidana anak dengan pendekatan hukum progresif dalam rangka perlindungan anak. jurnal dinamika hukum, universitas jenderal soedirman, 9(1), p. 29. 5febriana, a. (2017). op. cit., p. 207. 6dwiatmodjo, h. (2011). pelaksanaan perlindungan hukum terhadap anak yang menjadi korban tindak pidana di wilayah hukum pengadilan negeri banyumas. jurnal dinamika hukum, universitas jenderal soedirman, 11(2), p. 203. 7hilman, d. p., & indrawati, e. s. (2018). pengalaman menjadi narapidana remaja di lapas klas i semarang. empati, universitas diponegoro, 6(3), p. 197. 8other writings also describe the concrete facts of the urgency of protecting children's rights. vide: munandar, s. (2018). pelaksanaan perlindungan hukum terhadap hak anak yang berkonflik dengan hukum pada tahap penyidikan dalam sistem peradilan pidana anak (studi di wilayah hukum polresta padang). pagaruyuang law journal, universitas muhammadiyah sumatera barat, 2(1), pp. 58 – 59. volume 2, issue 1, june 2019 : 71 88 | 73 implementation of human rights protection towards in penitentiary of children in makassar to protect human rights at the makassar correctional institution, especially for children placed in adult prisons, namely the makassar class 1a correctional institution. based on the background stated, the problem statement can be identified are: 1. what is the implementation of human rights protection for children at the makassar correctional institution ?, 2. what factors influence the implementation of human rights protection for children at the makassar correctional institution? analysis and discussion a. human rights on children prisoner in child penitentiary of makassar the length of the criminal period is important to know in relation to the rights of prisoners to obtain their rights including assimilation and remission, that most child prisoners get a sentence of imprisonment for one year and under or short-term criminal punishment. this short-term criminal offense certainly has an influence on the child prisoner formation program. as stated in un resolution 40/33 (beijing rules), in section iii, that deprivation of independence for children is only possible as a last resort, and even then only for a minimum period of time, and for certain cases only. in addition, this international trend can be seen in the united nations congresses, requiring the limitation of the possibility of a short jail term, because besides bringing negative adverse effects, it is also less supportive of the correctional guidance system and not in accordance with the minimum standards of the rules. this does not mean that short imprisonment is abolished, but this crime is still needed in certain cases, namely only the use is limited. therefore the statement of this resolution must be followed up, that is what about children who have been sentenced to short prison terms, what is the next step so that short prison terms do not have a negative effect on child prisoners, for example incitement from criminal offenders higher class both physically and psychologically, this is because children are very sensitive to changes in the surrounding environment. in addition, it is feared to cause social stigma (children’s image) which has a negative impact on children’s development,9 because after all imprisonment is a very heavy thing for children. therefore, it needs a very careful attitude in placing children in the institution for the future development of the child, do not let the correctional institution as a sub-system of criminal justice and as a place to implement imprisonment into a place as stated by andenaes as a “ceremony of degradation” (degradation ceremony), and ignore the principles of child protection.10 9related to the image of children in their social environment is also worrying. vide: aswari, a., buana, a. p., & rezah, f. s. (2018). harmonisasi hukum hak untuk dilupakan bagi koran digital terhadap calon mahasiswa di makassar. kanun: jurnal ilmu hukum, universitas syiah kuala, 20(1), p. 44. 10pulunggono, w., & chalim, m. a. (2017). kebijakan perlindungan hukum terhadap anak korban kekerasan dalam rumah tangga dengan kontribusi upaya pembaharuan hukum pidana nasional. jurnal hukum khaira ummah, universitas islam sultan agung, 12(2), p. 342. volume 2, issue 1, june 2019 : 71 88 74 | implementation of human rights protection towards in penitentiary of children in makassar besides that, children who really have to enter the institution are sought so that the training carried out is not just about filling time. education and work provided must be able to lead to “self respect” in children in order to prepare themselves back into society. if it is possible specifically for children who receive short prison terms there are exceptions to the correctional stages that apply to child prisoners. they do not absolutely follow the correctional stages with the requirements of the time determined by the correctional system, because if they follow the procedures of the stages, the main goal of correctional treatment will not be achieved if we look at the basic idea of formation that tends to divide for the life of the prisoner based on time (time sentence), starting from ⅓, ½ to ⅔ of the criminal period he lives in. by basing absolutely on the time limit, problems will arise, for example there are times when inmates have reached the limit that time, but in w then the child has not behaved in a manner that meets the specified requirements, in the sense that the child has not shown an increase in behavioral improvement. and the most dangerous thing is if the prisoners have passed this period of time, but because of the many procedures that must be taken to obtain wider rights, then a shortcut is taken, that is, those who have passed the deadline are given rights more broadly without any consideration of their behavior. conversely on the other hand there are some cases that prisoners who have not taken the time limit specified in the stages of the correctional process have shown good behavior, but because they are fixated on the time rules set in the correctional process, eventually they have to wait long to get the right broader rights. balancing efforts should be taken in the middle way, which is not absolutely fixed on the specified time stages in the correctional process, so that the implementation can be flexible, by looking at the condition of each child. it is better to follow a credit point system for every good behavior and achievement carried out by child prisoners, so that this system is used as a basis for children to obtain wider rights in their coaching process, often remembering that the child inmate has only committed a crime for the first time. thus they are first offender. it is better for us to look again at article 45 of the criminal code, even though with the birth of the juvenile court law, this article is declared invalid, but as an illustration it will appear, that the article in the criminal code especially in this section is more protective for children. in this article it states: “... and has not passed two years since it was declared wrong because of the violation or crime mentioned above...” from this article it can be interpreted that a child who has for the first time committed a crime should be indirect sentenced to imprisonment that they must undergo in a penitentiary. in the juvenile court law it is not regulated on this matter. observation data of child inmates based on the age group of 60 children, those under the age of 12 were not found in the makassar correctional institution, and those volume 2, issue 1, june 2019 : 71 88 | 75 implementation of human rights protection towards in penitentiary of children in makassar aged 12 – 15 years were 20 people or 33,3%, and those aged between 15 – 18 year totaling 33 people or 55% and those over the age of 18 numbered 7 people or 11.7%. this age group is important to know to determine a coaching program that must be run in a prison. observation of article 20 of law number 12 year 1995 concerning corrections, stated that: in the framework of fostering child prisoners in correctional institutions, classification is carried out based on: a. age; b. gender; c. duration of sentence imposed; d. type of crime; e. other criteria according to the needs or development of coaching. furthermore, this classification is further regulated by a ministerial decree. in the explanation of the law it does not provide a clear description of the basic concept of the classification. and the ministerial decree in question also does not yet exist. and in its implementation at the makassar correctional institution conceptually and practically in the classification program only on sex and even then it is only done by block / room separation, because makassar does not have a special juvenile correctional institution. the concept of safe protection in its application there are some child inmates who are still at the institution who are feared to have a negative impact both physically and psychologically on inmates of younger children.11 whereas according to law number 11 of 2012 concerning the juvenile court system in article 60 said; that correctional students are placed in a juvenile correctional institution that must be separated from adults. article 61 states that a criminal child who has not finished his sentence and has reached the age of 18 must be immediately transferred. if it is not yet 21 years old, it is placed in a young adult correctional institution, but this study shows that classification based on the type of crime and recidivism is also not done at this institution. according to the binakdik section, this classification is not done so that they can “mingle” with other child inmates, but unfortunately this is a false understanding, because based on national and international legislation the concept of community with other fellow inmates is not the case. the condition of handling children in the land is very concerning and deserves caution because those who have repeatedly committed crimes if they are not separated from those who are beginners, are worried that they will transmit negative traits.12 there are a number of factors why 18-year-old inmates are still placed in juvenile correctional facilities. one of them is at the time of the trial the child claimed to 11toha, s. (2009). aspek hukum perlindungan terhadap anak. jakarta: pusat penelitian dan pengembangan hukum, badan pembinaan hukum nasional. departemen hukum dan ham ri, p. 94. 12jafar, k. (2015). restorative justice atas diversi dalam penanganan juvenile deliquency (anak berkonflik hukum). al-'adl, institut agama islam negeri kendari, 8(2), p. 83. volume 2, issue 1, june 2019 : 71 88 76 | implementation of human rights protection towards in penitentiary of children in makassar be under 18 years old, because he did not have a birth certificate, so of course the judge decided based on the consideration that the child was under the age of 18, so that if the verdict was imprisoned child correctional institution. not heeding the placement of prisoners based on age, this shows the inconsistency in national legislation as well as international instruments which confirms the need for placement of prisoners based on age classification to determine the next coaching program. another factor that causes more 18-year-old inmates to remain in juvenile correctional institutions is the problem of procedures for transferring prisoners who must be taken. as stated in the pattern of guiding prisoners and students in 1990, this transfer is permitted on the following grounds: (a). coaching; (b). security.13 various information obtained from observations about the status of children before they enter the correctional institutions, so most of them are school dropouts and workers, most of whom drop out of school live on the streets. meanwhile, based on the motivation to commit a crime, it is partly due to economic pressure and because of the influence of friends or the environment where the children interact. based on this, it can be determined what the next coaching program is for them. there were a number of children who were unable to attend school because they had to be required to enter school before entering the correctional institution. the existence of a statement that they had attended school was difficult to obtain because in general they had also left school for some time and they were from outside the makassar city area that had migrated to the city. and to ask their families to take care of it, in general they are embarrassed, there are even families who are not told that they are in a correctional institution because people who have served their sentences in the past can reduce the sense of independence of the person they reported,14 besides the economic conditions that do not allow to go back to lapas makassar. although they initially were school dropouts or workers in general they wanted to go to school like children in general. and remembering the criminal given to them is mostly short-term (under one year) criminal so that if you have to wait for a certificate to have attended school from the school concerned it is feared that it will take a long time, while the criminal period has been partially undertaken. how the program will run while for one level of school alone takes one year. thus a fast motion is needed to simplify this procedure. or other alternatives for those who have only been sentenced to short prison terms for example 6 months and below are given only skills training and then given a certificate so that it might be useful for those who have left or finished serving a sentence. 13safety and breach commission in the american prison report, that a serious problem in american prisons is to place child custody in adult prisons, which results in small children being beaten frequently. vide: ibid. 14aswari, a., buana, a. p., & rezah, f. s. (2018). loc. cit. volume 2, issue 1, june 2019 : 71 88 | 77 implementation of human rights protection towards in penitentiary of children in makassar the implementation of worship as a change in lifestyle in prison basically mostly felt that religious guidance in the development of religious aspects within the institution was considered quite good. this religious formation is important, because it is hoped that with this mental formation the child prisoners can be strengthened by their faith and given an understanding to be able to realize the consequences of their actions. a humanistic approach through religious formation must be able to raise the awareness of the violator of human values and the values of social life in society.15 regarding the implementation of worship outside the institution, most of the child inmates basically felt they did not get the right to carry out worship together with the community. even though this is very important in the context of assimilation and integration with the community. implementation of worship outside of correctional institutions is important so that child prisoners feel accepted as part of the community. it is better for prisoners to be included, for example in lightning pesantren joining children in general, of course with supervision by officers. thus there are two benefits at once, namely in addition to increasing the thickness of faith, also child inmates are trained to adapt to children in general. regarding physical and spiritual care, basically some feel less. the care of child inmates does not work as it should, which serves to keep them physically and mentally healthy, so that they must continue to obtain sufficient needs, such as food, water for drinking and bathing, but it is very unfortunate because of limited facilities and the capacity is not in line with the expectations of the implementation of protection for child prisoners in indonesia.16 especially for food, food must be considered with a number of calories that is suitable for the growth of children. in addition, what must be considered is how to give food to child prisoners not to lower their dignity as humans. regarding health services, some child prisoners feel they are not getting it, this is probably due to the number of medical personnel (general practitioners) who are only two people in prison. whereas for those who feel they are getting enough health care, those who are affected by minor illness, most of the diseases suffered by child prisoners are skin diseases, metabolic disorders, difficulty sleeping, this is due to poorly maintained sanitation or hygiene, and the nutrition they obtain from food. in the event the health check is carried out if there is a request from the prisoner in question. health checks should be carried out routinely every month, with preventive health services and curative services so that it is expected that the conditions of child 15rambitan, c. m. (2013). tugas dan fungsi lembaga pemasyarakatan dalam merehabilitasi anak yang sedang menjalani hukuman. lex et societatis, universitas sam ratulangi, 1(3), p. 75. 16rumadan, i. (2013). problem lembaga pemasyarakatan di indonesia dan reorientasi tujuan pemidanaan. jurnal hukum dan peradilan, mahkamah agung ri, 2(2), p. 265. volume 2, issue 1, june 2019 : 71 88 78 | implementation of human rights protection towards in penitentiary of children in makassar prisoners are controlled.17 and thus health services which are children’s rights can be given properly, this is also in accordance with international instruments that health services which include prevention and treatment and mental health must be available in prisons, and better if the health service facilities are also open to the community generally around the location of prisons, this is done to prevent stigmatization of the child while at the same time creating a sense of self-esteem in the child in the context of the child integrating into the community. as for the right to submit complaints, most of them have never submitted complaints, this is because they even though they understand their rights sometimes feel afraid of the officers. whereas regarding the rights themselves, they have been given at the time of entry orientation and by the institution’s staff, each room has been affixed. regarding the right to obtain information, some inmates feel good (satisfied) to get it either through reading material or other mass media such as television. this is because the facilities available in correctional institutions, especially regarding reading materials, are sufficient and through 7 television broadcasts they are considered adequate. regarding the right to receive family visits, some prisoners have never been visited by their families because their families are far from the correctional facilities. for example, sengkang, pinrang, sidrap and the social economic conditions of their parents who are classified as weak so that a visit to a prison requires a large fee. whereas those who are sometimes visited by their families are those whose families live around the city of makassar, so that at least they get a visit once a month or once every two months, and those who are frequently visited by their families are because their parents live near or around the area of the institution. correctional services of makassar city. even though the child has the right to get a visit from his family and close friends and he has the right to make correspondence with his family, because this is one way to ensure that the child can stay in touch with the community outside the institution. in this case the role of the family or parents is very influential on the formation of children in prisons. as stated in the beijing rules which states that parents, families are allowed to intervene in efforts to foster children in the institution (rule 26). therefore it is necessary to think of an effort to transfer children to correctional facilities for children who are at least close to their families. in this case, of course, by simplifying the procedure for transferring child inmates. another problem that arises is about the length of time to visit, between one inmate with another inmate is not the same, this raises jealousy between prisoners with one another. therefore there needs to be a regulation about the length of time to visit, and the firmness of the officer regarding the length of time to visit. this is 17sanusi, a. (2016). aspek layanan kesehatan bagi warga binaan pemasyarakatan dan tahanan di lembaga pemasyarakatan dan rumah tahanan negara (aspects of health carestowards convicts and inmates). jurnal ilmiah kebijakan hukum, badan penelitian dan pengembangan hukum dan ham, 10(1), p. 42. volume 2, issue 1, june 2019 : 71 88 | 79 implementation of human rights protection towards in penitentiary of children in makassar important so as not to cause negative effects between one inmate and another inmate. furthermore, to find out the rights of child prisoners to obtain remission, it must also be known about the length of the criminal sentence, this is related to the requirements regarding remission.18 when looking at the length of the criminal period, those who have the right to receive remission are prisoners who are serving a sentence of more than six months, thus based on 60 child prisoners formally 9 people who are entitled to remission are 51 while those who are not entitled to remission are 51. the implementation of remission is given if during criminal proceedings, child inmates are well behaved, and the reduction in the period of serving this criminal sentence can be increased if during the criminal procedure the prisoner is doing service to the state and carrying out actions that are beneficial for the state and humanity . the reduction in the criminal period is given by the minister of justice, which is submitted by the head of the correctional institution in question through the head of the regional office of the ministry of justice concerned. whereas the implementation of remissions at the makassar correctional institution has basically been carried out but because of the many procedures that must be taken so as to cause delays, while their criminal period is sometimes exhausted so that they do not get their rights to obtain remission. even though in article 4 paragraph (1) implementation of the presidential decree of the republic of indonesia number: 174 year 1999 concerning remission, it is stated that only prisoners and criminal children have undergone a sentence of 6 (six) to 12 (twelve) months who have received remission. however, this provision also cannot reach the problems that exist in makassar correctional institutions, because most of them are sentenced to short prison terms, one year down. in this case the role of the community observation team and the penitentiary advisory board needs to be improved so that a rapid movement occurs in dealing with the remission problem of child prisoners, so as soon as possible after observing child inmates. furthermore, regarding the right of prisoners to obtain assimilation, in this case it must also be known about the criminal period that has been carried out by inmates, this is related to the conditions that must be taken to obtain assimilation permits. for assimilation19 given to prisoners who have served half their sentence, while those who have carried out ⅔ of their prison periods are assimilated by providing independent activities outside the prison. this paper illustrates that formally the prisoners who are entitled to assimilation are 7 people. however, in its implementation, this was not fully done because of 18abdullah, r. h. (2015). urgensi penggolongan narapidana dalam lembaga pemasyarakatan. fiat justisia: jurnal ilmu hukum, universitas lampung, 9(1), p. 53. 19nugroho, o. c. (2015). pemenuhan hak atas kebutuhan seksual warga binaan pemasyarakatan. jurnal ham, badan penelitian dan pengembangan hukum dan ham, 6(2), p. 132. volume 2, issue 1, june 2019 : 71 88 80 | implementation of human rights protection towards in penitentiary of children in makassar procedures involving many parties, which resulted in delays which in the end the prisoners did not obtain full rights in obtaining assimilation. to get assimilation, prisoners must go through a correctional observation team, by listening to the community research report, after holding a hearing and then being proposed to the head of the regional office of the ministry of justice, then issuing a decree stating that the person can carry out the assimilation process inside and outside the prison . the problem that is then faced is the number of supervisors who are responsible for prisoners who are undergoing assimilation, especially for those who carry out assimilation with third parties both government and private institutions so that assimilation is carried out mostly in prison only. officers who supervise prisoners who are undergoing assimilation outside of prison are all kplp (lapas pengawasan persatuan unit) officers and bimker (job guidance) officers. in addition, the role of judge wasmat in this matter must be put forward, considering that judge wasmat’s role has been less effective, because judge wasmat’s visit was only a formality, namely checking whether the verdict on the prisoner had been carried out. the giving of remission and assimilation should not be based on giving relief or gifts because of good behavior but rather a program as a means of fostering in the correctional process. thus too complex juridical and administrative requirements need to be reviewed. furthermore, regarding the right to obtain parole according to law 12 of 1995 concerning correctional childhood, it is given to prisoners who have served their prison term 2/3 of their imprisonment period of at least 9 months. one of the requirements that must be taken to obtain parole is the existence of a community research report from bapas, about families that will accept inmates, the circumstances of the surrounding community and other parties related to child prisoners. furthermore, community research, which is one of its functions, is to provide a report to the correctional observation team as a material consideration for giving parole. furthermore, the opinion of child inmates regarding the guidance carried out in the children, there are those who argue that it is more a form of retaliation and some are more coaching, or some inmates who consider the implementation of coaching in institutions, are still tending to retaliation. this should not happen because since the issuance of the correctional law and the juvenile court law the orientation of prisoner formation must be changed to a more humane direction. criminal decisions in the form of restrictions on freedom must not exceed the mistakes made by the child and must not ignore the sense of justice of the community.20 only what needs to be remembered here for children must be seen proportionally in the 20achmad, r. (2017). hakekat keberadaan sanksi pidana dan pemidanaan dalam sistem hukum pidana. legalitas: jurnal hukum, universitas batanghari, 5(2), p. 93. volume 2, issue 1, june 2019 : 71 88 | 81 implementation of human rights protection towards in penitentiary of children in makassar sense that coaching must be seen on a case by case basis. and all child development activities must be based on the basic idea of child protection, and coaching in correctional institutions must still try to change the “naughty nature of children” so that they can be good people, and the community is protected by the inclusion of children in prisons. guidance for child prisoners who are based on the assumption that imprisonment is retaliation is feared to bring a variety of consequences that harm the child, for example the occurrence of torture in the form of speech, care and placement. crimes carried out in prisons must be adjusted to the characteristics of the perpetrator. b. analysis factors influence human rights implementation for children on child penitentiary guidance in the child correctional institution has several factors that need attention because it can function as a supporting factor and can also be a limiting factor. these factors include the following: the pattern and layout of the building as stipulated in the decree of the minister of justice of the republic of indonesia no. m.o1. pl.01.01 in 1985 on april 11, 1985 concerning the building pattern of penitentiary institutions and state detention houses, it was necessary to realize this, because the pattern and layout of buildings were important factors to support the implementation of human rights for child prisoners with guidance in accordance with their objectives. correctional service. some of the factors that influence the location of the makassar penitentiary are: a. conditions and layout of makassar correctional buildings location this building is located on the outskirts of the city. in terms of transportation and communication there are no problems. however, because of this makassar correctional institution, the residents are not only from the surrounding area, but can also be from various parts of indonesia, so that it is certainly difficult for families who will visit their children. at present the state of spatial planning in the makassar penitentiary, especially the living space, is well-maintained and takes into account the human dignity and rights of children as human beings so that their basic needs are guaranteed. and correctional institutions have been designed while paying attention to privacy children’s and supporting the rehabilitation and integration of children into the community. b. facilities needed by makassar correctional institutions there are a number of facilities that have an influence on the implementation of fostering child inmates, namely; 1. administration room, which is where all administrative process activities are carried out. makassar correctional institutions have one administrative room that is quite adequate. volume 2, issue 1, june 2019 : 71 88 82 | implementation of human rights protection towards in penitentiary of children in makassar 2. reception room, which is the place for receiving admissions for newly arrived inmates in prisons. prisoners of newly arrived children are registered and given uniform clothing, which is then put into an orientation cell for some time to determine the next coaching program. this reception room is equipped with facilities for administrative purposes such as registration, shooting, finger marks and matters relating to the reception process. at the makassar penitentiary there is also a reception room for newly arrived inmates. 3. living room for child prisoners in the living room with medium standard security is subject still to supervision but not too tight. the equipment in this living room is the same as the equipment in the living room with maximum security, namely beds, small tables, cabinets, lighting. in the living room maximum security is still needed due to tight supervision because inmates are considered dangerous. regarding the living space of child inmates basically they are still between medium security and maximum security, because supervision is still carried out strictly and the room key is still held by the officer. indeed the classification of institutions with maximum security, medium security and minimum security is not in accordance with the needs of the prison system. the basis of this classification is only viewed from the security approach, as stated in article 13 of the criminal code and article 49-56 gestichten regulations. it is better to think about the condition of open prison buildings with minimum security standards or the need for semi-institutional facilities that are well coordinated within the framework of integrating children into the community. although this certainly requires careful planning and preparation which also requires the involvement of an independent institution and is supported by qualified officers. 4. the dining room, all prisoners eat in their cell rooms because the agency officers deliver the food directly. in this case the child has the right to get quality food and sufficient quantity that is adjusted to the growth and development of children and in accordance with health standards. 5. discipline cells, namely cells to place inmates who violate the rules or discipline of the rules that have been determined. lapas makassar has disciplined cells which are intended for child prisoners who violate the regulations. however, this discipline cell is not used because if there is a violation, it will be subject to sanction of reprimand, except for heavy violations. 6. cell orientation, which is to place new prisoners as a temporary residence, where they are studied here to determine the next program. makassar correctional institution has one orientation room, this cell is in accordance with its function in giving rights to child prisoners. volume 2, issue 1, june 2019 : 71 88 | 83 implementation of human rights protection towards in penitentiary of children in makassar 7. visiting room, which is the place for holding meetings with families. the makassar correctional institution has a visiting room that is united with the formation administration room. it’s just that in its implementation for current family visits even though it has a clear time limit, but sometimes violations still occur. usually it occurs in prisoners with high social status and also for visitors who are familiar with the officer, the period can be extended. 8. coaching room, in the framework of fostering prisoners. then we need rooms that function to support the realization of the coaching. 9. middle school study room (pursue package b) in accommodating educational and scientific activities, under the leadership of the regional office of the ministry of education and culture. the problem here is that not all child inmates can attend school here, because they have to take requirements, one of which is a letter information that they attended school before entering the penitentiary. 10. the work room (workshop) in makassar lapas currently has a workspace, which functions as a space for non-formal education. this room serves to carry out skills exercises such as painting, music, electronic skills, screen printing, sewing and plywood crafts. however, for some activities it is not fully implemented because of a shortage of teaching staff or experts in work guidance. 11. library room library space in this institution, although it is quite adequate, but the condition of the books is partially outdated with the contents of the book that are not actual / not updated. this certainly influences the process of fostering child inmates, because after all children have to get actual outside world information so that they do not miss information even though they are inside the institution. 12. auditorium room this room is intended as a multipurpose place for example to hold ceremonies, lectures, arts and so on. at present the multipurpose room is sufficiently functioned properly. for example, with more effective counseling. 13. places of worship in the makassar penitentiary there is one prayer room and one church room. this room serves to accommodate religious activities for inmates. physically this building is quite adequate, but it needs to be improved both qualitatively and quantitatively regarding religious programs. volume 2, issue 1, june 2019 : 71 88 84 | implementation of human rights protection towards in penitentiary of children in makassar 14. hospital at present the makassar penitentiary does not have a special hospital or clinic, there is only one room that is used for medical services for child prisoners who need examination and treatment. c. organizational structure work mechanisms, especially relations and command lines of command and staff should be able to be carried out efficiently so that the implementation of tasks in each work unit runs smoothly. each officer must understand and be able to carry out their duties in accordance with their respective authorities and responsibilities. however, discipline and the application of organizational structures should not be tasks that are slow, but are treated flexibly as long as they do not violate existing provisions. organizational structure is a formal pattern of activities and relationships among various subunits within the organization, and is a formal pattern of how people and jobs are grouped. d. the human resources quality of human resources must be endeavored to be able to answer the challenges and problems that always exist and emerge especially within the institution. with certain qualities, it means that officers must have the minimum qualifications needed in accordance with the demands of their field of work, both those possessed in accordance with their academic abilities and the abilities obtained from the tasks obtained from experience and training. correctional officers besides that must have the right and the same perception regarding the naughty nature of the child. until now, only a small number of prisons have conducted special debriefing on this issue. based on the information from the administration of this institution, even though the makassar lapas has sought to have its officers take part in exercises, leadership courses will however be inadequate in frequency, this is due to insufficient budget. in general, in dealing with these obstacles can be taken by way of working with universities and social agencies to provide debriefing in the face of students in all coaching activities. in addition, a administration personnel are needed where these management personnel have a comprehensive personnel plan that covers all aspects, including; recruitment, placement, formation, transfer, education and training, career development motivation. for example upgrading programs, education and courses have something to do with career development programs. and to be able to formulate a comprehensive personnel plan must first know the scope of the task of fostering correctional students, so that it can be known the needs of employees both in quality and quantity, in this case including general administration staff, and experts such as psychologists, sociologists, community volume 2, issue 1, june 2019 : 71 88 | 85 implementation of human rights protection towards in penitentiary of children in makassar officers . thus the increase of human resources in order to provide guidance for child prisoners is expected to be able to realize the idea of correcting for children. in addition, the increase in human resources is also in line with what is stated in the beijing rules for the take part. thus in juvenile justice (in this case in particular the juvenile correctional institution) experts are needed in their field. for this reason, expertise education, training, and courses are also needed, so that guidance for child prisoners will be more meaningful. this training and education is carried out both for new employees to be able to understand and carry out the tasks assigned to them as well as for old employees to improve the quality of their duties. basically this training and education program is implemented is a continuous process and not just a momentary process. the purpose of fostering child inmates will be achieved well if it is carried out by employees who can carry out their duties efficiently and effectively, so that human resource development is needed. e. management management is closely related to leadership quality, organizational structure and capabilities and management skills (managerial skills) from the top of the leadership and staff so that administrative management in the correctional environment as well as its relationship with the cabruit prison and bapas can run orderly and smoothly. conclusion limitation of criminal penalties for children is very necessary to see the facilities and infrastructure of the makassar city penitentiary that accommodate children with problems with inadequate laws, in order to realize the ideal punishment system for children. in addition, the image of the child can be taken into consideration in the application of criminal penalties against children, because the results of this study indicate that the various concerns of the main children’s parents feel embarrassed that not only children who bear the burden, but also parents of children who have problems with the law. separation of prisoners based only on sex carried out in the form of blocks, is not an application that is in accordance with the law, which can have a detrimental effect on the obstruction of physical and psychological development of children in prisons. erroneous perceptions of child classification not carried out by the implementing apparatus added to the severity of the system of implementing child convictions oriented to perpetrators of crimes that entered the penal institutions that did not need to be distinguished because they both contained criminals. the responsibility of the implementing apparatus seems to be lacking in legal certainty related to the implementation of unspoken concrete responsibilities related to the pattern of service and implementation of child protection in correctional institutions, volume 2, issue 1, june 2019 : 71 88 86 | implementation of human rights protection towards in penitentiary of children in makassar giving rise to the impression that there is corrupt behavior that causes out of sync between legal objectives and legal functions law enforcement in the field. on the other hand, this paper also states a variety of factors that can affect the non-implementation of human rights protection for the government, including the condition and layout of buildings that do not rethink their suitability, supporting facilities and infrastructure in implementing legal protection for child prisoners, structures organization that does not work as it is ideally implemented, quality of implementing resources and implementing management. suggestion the need to provide facilities that guarantee the needs of children in social institutions, as an effort to foster children in a sustainable and more specific way, because children are the generation of a nation that has a long future and can still be improved. judges in making fair decisions must at least pay attention to the rights of children fundamentally, and no less important is the readiness of implementing resources and the facilities available in realizing children’s rights. implementation of guidance in the child correctional institution there are factors that need attention because can function as a supporting factor and can also be a limiting factor. these factors include the following: the pattern and layout of the building as stipulated in the decree of the minister of justice of the republic of indonesia no. m.o1.pl.01.01 in 1985 on april 11, 1985 concerning the building pattern of penitentiary institutions and state detention houses, it was necessary to realize this, because the pattern and layout of buildings were important factors to support the implementation of human rights for child prisoners with guidance in accordance with their objectives. correctional service. reference abdullah, r. h. (2015). urgensi penggolongan narapidana dalam lembaga pemasyarakatan. fiat justisia: jurnal ilmu hukum, universitas lampung, 9(1), 49 – 60. achmad, r. (2017). hakekat keberadaan sanksi pidana dan pemidanaan dalam sistem hukum pidana. legalitas: jurnal hukum, universitas batanghari, 5(2), 79 – 104. aswari, a., buana, a. p., & rezah, f. s. (2018). harmonisasi hukum hak untuk dilupakan bagi koran digital terhadap calon mahasiswa di makassar. kanun: jurnal ilmu hukum, universitas syiah kuala, 20(1), 39 – 62. decree of the minister of justice and human rights of the republic of indonesia number m.04hn.02.01 of 2000 concerning additional remission for prisoners and criminal children. volume 2, issue 1, june 2019 : 71 88 | 87 implementation of human rights protection towards in penitentiary of children in makassar decree of the presidential of the republic of indonesia number 50 of 1993 concerning national human rights commission. decree of the presidential of the republic of indonesia number 174 of 1999 concerning remission. dwiatmodjo, h. (2011). pelaksanaan perlindungan hukum terhadap anak yang menjadi korban tindak pidana di wilayah hukum pengadilan negeri banyumas. dinamika hukum, universitas jenderal soedirman, 11(2), 201 – 213. febriana, a. (2017). penegakkan hukum terhadap anak yang melakukan tindak pidana pencabulan dalam konsep restorative justice. adil: jurnal hukum, universitas yarsi, 7(2), 202 – 211. hilman, d. p., & indrawati, e. s. (2018). pengalaman menjadi narapidana remaja di lapas klas i semarang. empati, universitas diponegoro, 6(3), 189 – 203. jafar, k. (2015). restorative justice atas diversi dalam penanganan juvenile deliquency (anak berkonflik hukum). al-’adl, institut agama islam negeri kendari, 8(2), 81 – 101. law of the republic of indonesia number 11 of 2012 (law no. 11 of 2012) concerning criminal justice system for children. state gazette of the republic of indonesia, number 153 of 2012. supplement to the state gazette of the republic of indonesia, number 5332. law of the republic of indonesia number 35 of 2014 (law no. 35 of 2014) concerning amendment to law no. 23 of 2002 concerning child protection. state gazette of the republic of indonesia, number 297 of 2014. supplement to the state gazette of the republic of indonesia, number 5606. munandar, s. (2018). pelaksanaan perlindungan hukum terhadap hak anak yang berkonflik dengan hukum pada tahap penyidikan dalam sistem peradilan pidana anak (studi di wilayah hukum polresta padang). pagaruyuang law journal, universitas muhammadiyah sumatera barat, 2(1), 42 – 63. nugroho, o. c. (2015). pemenuhan hak atas kebutuhan seksual warga binaan pemasyarakatan. jurnal ham, badan penelitian dan pengembangan hukum dan ham, 6(2), 131 –146. pramukti, a. s., & primaharsya, f. (2018). sistem peradilan pidana anak. yogyakarta: media pressindo. volume 2, issue 1, june 2019 : 71 88 88 | implementation of human rights protection towards in penitentiary of children in makassar pulunggono, w., & chalim, m. a. (2017). kebijakan perlindungan hukum terhadap anak korban kekerasan dalam rumah tangga dengan kontribusi upaya pembaharuan hukum pidana nasional. jurnal hukum khaira ummah, universitas islam sultan agung, 12(2), 341 – 350. rambitan, c. m. (2013). tugas dan fungsi lembaga pemasyarakatan dalam merehabilitasi anak yang sedang menjalani hukuman. lex et societatis, universitas sam ratulangi, 1(3), 67 – 76. rumadan, i. (2013). problem lembaga pemasyarakatan di indonesia dan reorientasi tujuan pemidanaan. jurnal hukum dan peradilan, mahkamah agung ri, 2(2), 263 – 276. sanusi, a. (2016). aspek layanan kesehatan bagi warga binaan pemasyarakatan dan tahanan di lembaga pemasyarakatan dan rumah tahanan negara (aspects of health carestowards convicts and inmates). jurnal ilmiah kebijakan hukum, badan penelitian dan pengembangan hukum dan ham, 10(1), 37 – 56. toha, s. (2009). aspek hukum perlindungan terhadap anak. jakarta: pusat penelitian dan pengembangan hukum, badan pembinaan hukum nasional. departemen hukum dan ham ri. united nations emergency children’s fund, general assembly resolution 44/25 of 1989 concerning convention on the rights of the child. wahyudi, s. (2009). penegakan peradilan pidana anak dengan pendekatan hukum progresif dalam rangka perlindungan anak. dinamika hukum, universitas jenderal soedirman, 9(1), 29 – 39. edit.indd volume 2, issue 1, june 2019 : 1 20 | 1 legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) moch. andry w. w. mamonto universitas muslim indonesia email: moch.andrymamonto@umi.ac.id abstract combination of presidential government systems and multi-party systems as a system of indonesian state has led to a government that does not effective and stable. the formulation of the problem which is the focus of the study in this paper, namely how is the legal politics of simplification of political parties in indonesia for the period 2004 – 2014. the research method used in this study is normative. based on the results of the study, the authors obtained answers to the existing problems, that the legal politics of simplifying political parties in indonesia is democratic legal politics, but the legal politics of simplifying political parties in indonesia should not only be directed at simplifying political parties in parliament, but also simplifying political parties in political parties participating in the general election. keywords : legal politics; simplification; political parties. introduction one of the spirits of the changes to the 1945 constitution of the republic of indonesia (from now on abbreviated as the 1945 constitution of the republic of indonesia) is to strengthen the building of a presidential government system.1 the spirit of the amendment to the 1945 constitution of the republic of indonesia to strengthen the building of presidential government systems is one of them characterized by the formulation of article 6a paragraph (1) and article 22e paragraph (1) and (2), where the principal stipulates that the mechanism for filling the position of president and vice president (hereinafter abbreviated the vice president) is elected directly by the people. based on these provisions, then theoretically indonesia has adopted one of the characteristics of a presidential government system, in the language of c. f. strong it is called the system of non-parliamentary executive government (fixed executive).2 since the stipulation of the regulation to date, indonesia has held three general elections (from now on abbreviated to elections) of the president and vice-president, namely in 2004, 2009 and 2014. 1asshiddiqie, j. (2007). membangun budaya sadar berkonstitusi untuk mewujudkan negara hukum yang demokratis. in peringatan dies natalis ke xxi dan wisuda 2007 universitas darul ulum (unisda) (29 december 2007 ed.). lamongan: universitas darul ulum (unisda). 2strong, c. f. (2015). konstitusi-konstitusi politik modern: studi perbandingan tentang sejarah dan bentuk. bandung: nusamedia, p. 355. vide lijphart, a. (1995). sistem pemerintahan parlementer dan presidensial (i. r., trans.). jakarta: pt. raja grafindo persada, p. 44. volume 2, issue 1, june 2019 : 1 20 2 | legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) in practice post-reformation in indonesia has not only changed the face of the indonesian government system, but also changed the face of the indonesian party system. the change in the face of the indonesian party system is marked by providing life insurance for political parties, even further political parties are positioned as organizations that have an essential function as formulated in article 6a paragraph (2) and article 22e paragraph (3), where political parties are participating organizations elections and organizations that have the right to nominate candidates for president and vice president. as stated by fransje molenaar that, the constitution is the most special part in the regulation of political parties because it contains fundamental values and legitimizes political rules.3 the life of political parties continues to experience a metamorphosis, wherein the 2004 election period there were 24 (twenty-eight) political parties participating in the election and 16 political parties (sixteen) who won seats in the dpr,4 in the 2009 election period, there were 44 (forty-four) political parties election participants and 9 (nine) who won seats in the dpr,5 in the 2014 election there were 12 (twelve) election political parties and 10 (ten) who won seats in the dpr.6 starting from the description above, it appears that since 1999, 2004, 2009 to 2014 indonesia has experienced a change in the face of the party system, both in the party system of participants in the elections and in the party system in the legislature. from the foregoing, it is illustrated that, in connection with the changes in the provisions of the 1945 constitution of the republic of indonesia concerning the regulations for the distribution of power, the mechanism for filling in the position of president and vice president, and changes in party arrangements, has brought indonesia under conditions of a combination of presidential and party system multi-party. the combination of presidential government systems and multi-party systems is a difficult combination; it is also emphasized that adhering to the combination of the two systems as a state system will potentially lead to deadlock and the divided government argued by mainwairing.7 furthermore, antonio cheibub added that the magnitude of the potential deadlock would be more complicated if the president came from a small party, while forming a coalition to gain parliamentary support to develop an effective and stable government tended to be more difficult in a presidential government system.8 in the context of indonesian state administration, the warning of the implications of 3molenaar, f. (2012). latin american regulation of political parties: continuing trends and breaks with the past. working paper series on the legal regulation of political parties(17), p. 2. 4sulastri, e., suparno, yatim, s. s., & wijayakusuma, m. (eds.). (2010). modul 1: pemilih untuk pemula. jakarta: komisi pemilihan umum, p. 43. 5ibid., pp. 45 – 46. 6partai politik pemilihan umum tahun 2014. (2014, 14 agustus 2016). retrieved from http://www.kpu.go.id/ index.php/pages/detail/2014/282 7lijphart, a. (1995). op. cit., p. 19. 8haris, s. (2014). praktik parlementer demokrasi presidensial indonesia. yogyakarta: cv. andi offset, p. 138. volume 2, issue 1, june 2019 : 1 20 | 3 legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) the combination of presidential systems and multi-party systems as proposed by experts, can at least be traced during the yudhoyono-kalla administration as the first president and vice president born of the presidential and vice-presidential election system in history indonesian state administration. first, the president’s prerogative rights are reduced in appointing and dismissing ministers. the reduction of the president’s pre-procedural powers was caused by the opening of coalition taps involving several political parties in the formulation of the cabinet; even the cabinet reshuffle was not based on objective needs but the pressure of political parties.9 secondly, the coalition building that was built to be the support of the formation of an effective government has not been able to materialize. the failure of the coalition to support the effectiveness of government is caused by the building of coalitions that are built not based on the prevailing view in managing the country, but on the attitude of pragmatism. the failure of the coalition building is increasingly complex with no discipline in the coalition by political parties.10 based on the description above, various ideas have been created to simplify political parties; this is based on the reasoning of the arguments spoken by experts. theoretically, to form a simple party system. so, it can be done through political life engineering through law. as stated by the roscue pound in mahfud’s legal politics study, that the law must be able to control and manipulate the development of society including its political life (law as a tool of social engineering).11 thus, while the focus of the problem formulation in this study is how is the legal politics of simplifying political parties in indonesia during the 2004 – 2014 election period? method viewed in terms of the focus of the study, legal research conducted by the author includes the type of normative research, normative legal research is legal research conducted by selecting library materials or secondary data. in normative legal research, the process of collecting data is focused on efforts to obtain secondary data. secondary data consists of primary legal materials, secondary legal materials, and tertiary legal materials. 9golkar party: 128 members in the people's representative council of the republic of indonesia (dpr ri) and 4 ministers in the cabinet; united development party (ppp): 58 members in the dpr and 2 ministers in the cabinet; democratic party: 55 members in the dpr and 2 ministers in the cabinet; national mandate party (pan): 53 members in the dpr and 2 ministers in the cabinet; the national awakening party (pkb): 52 members in the dpr and 2 ministers in the cabinet; prosperous justice party (pks): 45 members in the dpr and 3 ministers in the cabinet; crescent star party (pbb): 11 members in the dpr and 1 minister in the cabinet; and indonesian justice and unity party (pkpi): 1 member in the dpr and 1 minister in the cabinet. 10haris, s. (2014). op. cit, pp. 9 – 11. 11d., m. mahfud m. (1999). pergulatan politik dan hukum di indonesia. yogyakarta: gama media, p. 70. volume 2, issue 1, june 2019 : 1 20 4 | legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) analysis and discussion concerning state policy referred to in this study is the policy of regulating political parties, which by experts are called party law. the legal definition of the party by experts has a different view. for example avnon, party law covers all aspects of political parties including legal status, membership, finance, organization, ideology and programs, campaigns, demonstrations and elections.12 not much different from avnon, wolfgang c. miller and ulrich siebeber understood party law as a law specifically designed to regulate the life of the party organizations or the whole laws that affect political parties. specifically, the political party arrangements can be derived through the constitution, party-specific laws, election laws and campaigns, parliamentary organizations, party finances, other political activities (demonstrations), or laws that generally regulate about voluntary organizations.13 furthermore, kenneth janda explained more comprehensively that what is meant by party law is the whole law that affects political parties, which include: constitution, electoral law, campaign law, party finance law, legal party access to the media, community organization law, legislative provisions, administrative decisions and court decisions.14 from the above description, it relates to the official state policy on the whole life of political parties, which in legal studies is known as the study of legal politics, with a simple understanding interpreted as the official state policy line that will be enforced nationally to achieve the country’s goals.15 theoretically, in analyzing the relationship between law and politics related to two variables, namely law (a legal product) as the dependent variable (affected variable, effect) and politics as an independent variable (variable influence, cause).16 legal politics in its study focuses on two variables which give birth to specific legal product characteristics, as argued in the mahfud study that democratic political configurations will give birth to legal products that are responsive or autonomous, whereas conservative / orthodox or oppressive political configurations, according to mahfud, are choices over assumptions that law is a political product will lead to the adoption of a hypothesis that certain political configurations will give birth to certain legal product characters, where democratic political configurations will give birth to responsive or autonomous legal products while authoritarian (non-democratic) political configurations will give birth to legal products with character conservative / orthodox or oppressive, can be illustrated in the following chart:17 12katsina, a. m. (2014). party politics and party laws in new democracies: the case of nigeria in the fourth republic, 1999 – 2011. international journal of humanities and social science, 4(2), p. 143. 13katz, r. s., & crotty, w. (2014). handbook partai politik. bandung: nusamedia, p. 719. 14casal-bértoa, f., piccio, d. r., & rashkova, e. r. (2012). party law in comparative perspective. working paper series on the legal regulation of political parties(16), p. 5. 15d., moh. mahfud m. (1998). politik hukum di indonesia. jakarta: lp3es, p. 1. 16husein, m. wahyudin, & hufron, h. (2008). hukum, politik, & kepentingan. yogyakarta: laksbang pressindo, p. 1 17d., m. mahfud m. (1999). op. cit., p. 6. volume 2, issue 1, june 2019 : 1 20 | 5 legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) figure i. independent variable dependent variable political configuration character of legal products democratic responsive / autonomous authoritarian / nondemocratic conservative / orthodox source: moh. mahfud m. d., 1999. moh. mahfud md also wrote: ... it should be stated that the qualifications regarding the political configuration and character of legal products cannot be identified absolutely because in reality, no country is fully democratic or fully authoritarian, nor is there a country whose legal product character is absolutely responsive or absolute conservative.18 based on the description above, then to understand the legal politics of simplification of political parties in indonesia during the 2004 – 2014 general election period in this study, identification was carried out by tracing the statutory provisions that had been enacted from 2004 – 2014 to simplify the political parties as follows: a. politics of regulatory law simplification of reformed political parties over the past 32 years, the new order government retained its power, conditions where the country was very strong, and the state as the sole interpreter of truth. it is not wrong to describe the condition at that time by putting the government as the sole interpreter of all aspects of life, including the interpretation of the life of political parties, where the condition that everything that comes out of the mouth of the ruler is true, there is no room to refute, if anyone disputes, the catastrophe will approach them critics including among them criticism of the life of political parties, simply as it was in france with the expression of king louis xiv “l’etat, c’est moi”, until finally the new order government ends. the collapse of the new order period signifies that indonesia entered a new phase known as the reformation, at this time began to change the state of living conditions including the life of political parties marked by the birth of law number 2 of 1999 concerning political parties to replace law number 3 in 1975 relating to political parties and groups of work and law number 3 of 1985 pertaining to amendments to 18d., moh. mahfud m. (1998). op. cit., p. 5. volume 2, issue 1, june 2019 : 1 20 6 | legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) law number 3 of 1975 concerning political parties and functional groups.19 1. legal politics of simplifying political parties 1999 election period birth of a policy to form a political party law at the beginning of the reformation era was a policy that was born to respond to the social turmoil that occurred in 1998, where there was a shift in the pendulum of social life from authoritarian to democratic. policies that open space for the life of political parties has been the trigger for the growth of political parties as happened at the beginning of independence. the power of policy that regulates the lives of political parties through is not much different from the policy power that regulates the lives of political parties in the early days of independence. the vice president’s announcement about the recommendation for the formation of political parties has also triggered the birth of fantastic numbers of political parties. proved through law no. 2 of 1999 were born political parties as many as forty-eight political parties which were political parties participating in the elections in 1999. in the policy of regulating the life of political parties, it was stipulated that to form political parties must fulfill the following: a. conditions requirements for establishing political parties based on law number 2 year 1999, to form a political party, it must be created by at least 50 citizens of the republic of indonesia who are 21 years old , have articles of association that contain principles or characteristics and party aspirations and programs that do not conflict with pancasila, and do not use the same name or symbol with foreign countries, the republic of indonesia national flag, foreign country flags, images of individuals and other party symbols.20 furthermore, to become a legal entity, the political parties must register with the ri justice department using a notary deed, and include the terms of the formation of political parties as described previously. the political parties that fulfill the requirements and are declared eligible will be legalized as legal entities and announced in the state gazette of the republic of indonesia.21 b. political party financial provisions to support the life of political parties and to control political parties, political party financial policies are regulated in chapter vi which include: (a) funding sources; (b) maximum amount; (d) financial statements. 19law of the republic of indonesia number 2 of 1999 (law no. 2 of 1999) concerning political parties. state gazette of the republic of indonesia, number 22 of 1999. supplement to the state gazette of the republic of indonesia, number 3809. 20vide article 2 paragraph (2) of law no. 2 of 1999. 21vide article 4 paragraph (1), (2) and (3) of law no. 2 of 1999. volume 2, issue 1, june 2019 : 1 20 | 7 legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) political parties can obtain funding sourced from membership fees, donations and other legitimate ventures, assistance from the state budget given based on votes in general elections. regarding the funding source, the funding sources are regulated either in the form of donations or assistance from foreign parties.22 furthermore, it is also stipulated that political parties as non-profit organizations are prohibited from establishing business entities and owning shares in a business entity.23 in connection with the boundaries of donating funding sources, it is limited that political parties can receive donations from a maximum of rp. 15,000,000 (fifteen million rupiahs) and contributions from other companies or entities amounting to rp. 150,000,000 (one hundred and fifty million rupiahs) in one year. in addition to donations of money, political parties can also receive contributions in the form of goods whose value is the same as donations in the form of money.24 thus, to control political party finances both in terms of income and expenditure, the policy regulates the obligation for political parties to report at the end of the year 15 days before, and 30 days after the general election to the supreme court, reports submitted to the supreme court contains a list of contributors. the party financial report can be audited by a public accountant appointed by the supreme court.25 c. prohibition, supervision and dissolution of political parties in law no. 2 of 1999 stipulates that political parties are prohibited from adhering to, developing, spreading the teachings or understandings of communism / marxism / leninism and other teachings that are contrary to the pancasila.26 the institution that has the authority to supervise, freeze, dissolve, impose administrative sanctions, and revoke the right of political parties to take part in general elections for political parties proven to violate the provisions prohibited in the law is the supreme court. in the 1999 general election, the policy of regulating the life of political parties was not only regulated in the laws of political parties. the policies governing the life of political parties are also regulated in law no. 3 of 1999.27 22vide article 12 paragraph (1), (2), (3) and (4) of law no. 2 of 1999. 23vide article 12 paragraph (1) and (2) of law no. 2 of 1999. 24vide article 14 paragraph (1), (2), and (3) of law no. 2 of 1999. 25vide article 15 paragraph (1) and (2) of law no. 2 of 1999. 26vide article 16 letter (a) of law no. 2 of 1999. 27law of the republic of indonesia number 3 of 1999 (law no. 3 of 1999) concerning general election. state gazette of the republic of indonesia, number 23 of 1999. supplement to the state gazette of the republic of indonesia, number 3810. volume 2, issue 1, june 2019 : 1 20 8 | legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) in this policy it is regulated, to become an election participant political parties must fulfill the requirements, including: (a) their existence is recognized in accordance with the law on political parties; (b) has management in more than half the number of provinces in indonesia; (c) have management of more than ½ the number of districts / municipalities in the province; (d) submit names and images of political parties.28 b. legal politics of simplifying political parties election period 2004 1. politics of the law of harmonizing the party through political law parties legal policy of simplifying political parties in the 2004 general elections is regulated in law no. 31 of 200229 which constitutes the second political party law post-reformation replaces law no. 2 of 1999. the matters stipulated in the policy of simplification of political parties include: a. terms of establishment and establishment of political parties political concretization of the simplification of political parties relating to the terms of establishment and formation of political parties stipulates that the conditions for establishing and establishing political party, which is established by a minimum of 50 indonesian citizens aged 21 years with a notary deed that includes the articles of association and by-laws, and management at the national level. the provisions for the establishment and establishment of political parties refer to the formulation of chapter ii article 2, article 3, and article 4. furthermore, the legal politics of simplifying political parties stipulates that to become a public legal entity for political parties, political party organizations must register with the department of justice. to become a public legal entity as described above, political parties must fulfill the requirements, namely: (a) notary deed in accordance with the 1945 constitution and other laws and regulations, (b) having a minimum of 50% minimum management of the province, 50% each regency / city in the province concerned and 25% of the number of subdistricts in each regency / city involved, (c) have names, (d) symbols and images that are not the same as names, (e) symbols and image signs of other political parties and have a permanent office. the legal politics of simplifying political parties are regulated in article 2 paragraph (3). 28vide article 39 paragraph (1) of law no. 3 of 1999. 29law of the republic of indonesia number 31 of 2002 (law no. 31 of 2002) concerning political parties. state gazette of the republic of indonesia, number 138 of 2002. supplement to the state gazette of the republic of indonesia, number 1425. volume 2, issue 1, june 2019 : 1 20 | 9 legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) b. terms of principle and characteristics apart from the management requirements and deed of establishment of the party, legal politics simplifying political parties also regulates the provisions regarding the basic terms and characteristics of the party, that each political party must not adhere to the principles and characteristics that are contrary to pancasila and the 1945 constitution. political parties can include specific characteristics by their wishes and ideas that do not conflict with the pancasila, the 1945 constitution of the republic of indonesia, and the act. the arrangement of principles and characteristics of political parties is formulated in article 5 paragraph (1) and (2). c. political party financial arrangements legal politics of simplifying political parties through political party financial arrangements are regulated through the provision of financial resources that can be accepted by political parties which include: (a) membership dues with a maximum limit of 200,000,000 (b) lawful good contributions in the form of money, goods, facilities, equipment and equipment with a maximum limit of 800,000,000 and (c) assistance from the state budget that gives proportionally to political parties that get seats in the institutions of the people’s representatives. regarding legal politics, the simplification of political parties regarding the provisions of financial arrangements for political parties is regulated in article 17 paragraph (1), (2), and (3) and article 18 paragraph (1) and (2). d. prohibitions and sanctions in the legal politics of simplifying political parties law number 31 of 2002, in addition to regulating the provisions concerning rights granted to political parties. the law also regulates provisions concerning restrictions in the form of prohibitions or sanctions. about prohibited provisions it is categorized into two, namely: administrative prohibitions and prohibitions on the activities of political parties. the prohibition concerning administration, in the form of prohibition of names, symbols and images that resemble: (a) the flag or symbol of the republic of indonesia, (b) the symbol of a state or government institution, (c) name, flag or symbol of another country and name, flag or symbol of an international institution / agency, (d) someone’s name and picture and, (e) having similarities with other political parties whereas the prohibition relating to the activities of political parties includes: events that are contrary to the 1945 constitution and laws, endangering the unitary republic of indonesia, and contrary to the policies of the state government in maintaining a friendship with other countries in order to maintain world order. volume 2, issue 1, june 2019 : 1 20 10 | legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) concerning provisions concerning the prohibition of the establishment of business entities and share ownership, and the prohibition of receiving and giving contributions from/to the following details: (a) foreign parties; (b) any party without including a clear identity; (c) the person / institution exceeds the specified limit; (d) bumn, bumd, bumdes, cooperatives, foundations, ngos, community organizations and humanitarian organizations. it is further regulated by the prohibition of political parties to adhere to, develop and spread the teachings or understandings of communism / marxism-leninism. based on these provisions, there are 24 (twenty-four) political parties that are declared legitimate as legal entities and passed the administration. 2. legals politics of simplifying political parties through election laws a policy of simplifying political parties through electoral law in the 2004 general election is regulated in law no. 12 of 2003 concerning general elections of members of the dpr, dpd and dprd. the matters stipulated in the political party’s simplification policy in the law include: a. requirements to become election participants policy of providing political parties regarding the requirements to become political parties participating in elections specifies that in order to become an eligible participant, political parties must comply with: (a) have a legislative board of at least ⅔ of the total number of provinces; (b) have a complete management of at least ⅔ of the total districts / cities in the province concerned; (c) having a membership of at least 1/1000 of the total population in each management of a political party, must have a permanent office and submit the names and images of political parties to the kpu. the policy of simplifying political parties related to the requirements to become an election participant is regulated in article 17. b. requirements for following the election of the next period and requirements for obtaining chairs next, it is determined that to take part in the next election period, political parties must fulfill the provisions for the seats, namely: (a) at least 3% of dpr seats; (b) obtain at least 4% of the total seats in the provincial dprd which are spread at least in ½ (half) of the total provinces in indonesia; or (c) obtain at least 4% of the number of regency / city dprd seats spread in ½ (half) of the number of regencies / cities in indonesia. the policy of simplifying political parties through the requirements for obtaining vote thresholds is regulated in article 9. with the enactment of the provisions of article 9 paragraph (1), political parties not fulfilling these provisions have no right to place candidates to sit or obtain seats volume 2, issue 1, june 2019 : 1 20 | 11 legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) in the dpr, provincial dprd, and regency / city dprd. the other implications of the enactment of this provision are that each political party participating in the election cannot automatically become an election participant in the following period. political parties participating in the 2004 elections can become election participants in the 2009 period, only if they join a political party participating in an election that meets the requirements of the election participants; join a political party that does not fulfill the needs of the election participants and then uses the name and sign of one of the political parties joining so as to meet the minimum number of seats; or join a political party that does not fulfill the requirements of election participants by forming a new political party with new names and images so as to meet the minimum number of seats. provisions to merge parties for electoral party parties that do not fulfill the provisions of article 9 paragraph (1) are contained in paragraph (2). c. legal politics of simplifying political parties 2009 election period by referring to the results of the 2004 general election, policymakers in the 2009 elections made changes to the policy direction to simplify political parties. furthermore, changes in the direction of policy simplification of political parties due to the simplification of political parties through law 31 of 2002 are considered not optimal in accommodating the development of society. so it is deemed necessary to determine the new direction of legal politics simplifying political parties. 1. the politics of law for the elimination of political parties through political party laws policy of simplifying political parties through the laws of political parties in the 2004 general elections is regulated in law number 2 of 2008 concerning political parties30. the matters stipulated in the political party’s simplification policy in the law include: a. terms of establishment of political parties in the change in the legal political direction of the simplification of the political party it was determined that, to establish a political party must meet the requirements including: establishment by a minimum of 50 citizens the 21-year old indonesian state (wni) with a notary who included 30% representation of women and included ad and art and management at the central level. ad party contains: principles and characteristics of the party, vision and mission, name, symbol, and signatures, goals and functions of parties, organizations, 30law of the republic of indonesia number 2 of 2008 (law no. 2 of 2008) concerning political parties. state gazette of the republic of indonesia, number 2 of 2008. supplement to the state gazette of the republic of indonesia, number 4801. volume 2, issue 1, june 2019 : 1 20 12 | legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) place of domination and decision making, party rules and decisions, political education and political party finance.31 b. requirements to become a public legal entity furthermore, the policy of simplifying political parties regulates that to become a public legal entity, the organization of a political party must fulfill the following requirements: (a) ownership of the deed of establishment of the party; (b) names and symbols / images that are not the same as other parties; (c) have a permanent office and have management in at least 60% of the total provinces, 50% in the district / city in question and have an account in the name of the party.32 c. terms and regulations on principles or ideology and characteristics of the party in the policy of regulating the simplification of political parties not only carried out through the requirement to become a public legal entity, the simplification efforts are also carried out through the provisions of fundamental/ ideological requirements and party characteristics that political parties can include certain characteristics and reflects the will and ideals of political parties that do not conflict with pancasila and the 1945 constitution.33 d. financial arrangements of political parties regarding the policy of simplifying political parties through the regulation of political party, finances are carried out through restrictions on financial resources which include: (a) membership fees, (b) other legal sources, and (c) financial assistance from the apbn / apbd that is given proportionally by the vote acquisition.34 furthermore, the policy of regulating the simplification of political parties in regulating financial parties related to their implementation is given authority to political parties to control in ad and art. however, what needs to be addressed is that restrictions pertaining to individual contributions not from members of political parties are limited to one billion rupiahs per year, while contributions from companies and business entities are a maximum of four billion rupiahs per year. e. prohibitions and sanctions the new direction of the policy of simplifying political parties stipulated in the political party law also regulates the provisions of prohibitions and sanctions. 31vide article 2 paragraph (1), (2), (3) and (4) of law no. 2 of 2008. 32vide article 3 paragraph (1) and (2) of law no. 2 of 2008. 33vide article 9 paragraph (1) and (2) of law no. 2 of 2008. 34vide article 34 of law no. 2 of 2008. volume 2, issue 1, june 2019 : 1 20 | 13 legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) requirements for ban include the name and symbol of the party, party activities, funding sources and the establishment of business entities, the teachings of communism.35 the details are as follows: 1) names and symbols of political party parties are prohibited from using the name and symbol of the same party as the36 a) flag or symbol of the republic of indonesia; b) symbol of a state institution or government symbol; c) name, flag, the emblem of another country or international institution/ body d) name, flag, a symbol of the organization of a separatist movement, or a prohibited organization; e) someone’s name or picture; or f) that has the same equality or the whole with the name, symbol or picture of another political party. 2) political party activities a policy of simplifying political parties regulated through the prohibition of the activities of political parties stipulates that political parties are prohibited from carrying out activities that contradict the 1945 constitution of the republic of indonesia and laws or conduct activities that endanger the integrity and safety of the unitary state republic of indonesia.37 in order to regulate the activities of political party funding sources, in the policy of regulating the simplification of political parties the provisions are in the form of prohibitions for political parties to accept and contribute to foreign parties, from parties whose identity is unclear, take contributions exceeding the prescribed limits and receive donations from bumn / bumd, uses fractions as a source of funding.38 it is further stipulated that political parties are prohibited from establishing business entities and owning shares of a business entity. regarding political party activities related to the life and development of political parties, the policy of simplifying political parties regulates the prohibition to adhere to and develop and spread the teachings or understandings of communism / marxism-leninism. 35vide chapter xvi of law no. 2 of 2008. 36vide article 40 paragraph (1) of law no. 2 of 2008. 37vide article 40 paragraph (2) of law no. 2 of 2008. 38vide article 40 paragraph (3) of law no. 2 of 2008. volume 2, issue 1, june 2019 : 1 20 14 | legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) to provide the workforce for the prohibitions regulated in the policy of simplifying the political parties, a policy for imposing sanctions on violating political parties was born. the policy provisions related to sanctions for violating political parties can be in the form of rejecting the registration of political party organizations into legal entities by the department. furthermore, for political parties that violate the provisions of article 13 letter i, will be subject to sanctions for termination of the provisions of the state / regional revenue and expenditure budget until the government receives the report in the relevant fiscal year. whereas for political parties that violate the provisions of article 40 can be subject to sanctions in the form of freezing and dissolution. 2. simplification of political parties through election law about the simplification policy of political parties through the electoral law regulated in law number 10 of 2008 concerning general elections of members of the house of representatives, regional representatives39 set that : a. requirements to become election participants the new direction of legal political change in the simplification of political parties is regulated changing conditions to become political parties participating in elections, that to become political parties participating in elections, political parties must meet the requirements : (a) legal status in accordance with the law on political parties; (b) has management in 2⁄3 of the number of provinces; (c) has management 2⁄3 of the number of districts / cities of province concerned; (d) include at least 30 % (thirty percent) women’s representation in the management of central political parties; (e) has a membership at least 1000 thousand people or 1/1000 (one thousandth) of the total population in each of the political parties management as referred to in letter b and letter c as evidenced by the ownership of a member card; (f) having a permanent office for control as referred to in letter b and letter f; (g) submit names and images of political parties to the kpu.40 b. requirements to get a seat in the dpr in the 2009 elections there was a change in the political direction of the policy of simplifying political parties, where to the participate in the determination of seats in the dpr, political parties achieve the acquisition of a sound threshold of at least 2,5% of the number of legitimate nations vote.41 39law of the republic of indonesia number 10 of 2008 (law no. 10 of 2008) concerning general elections of members of people's representative council of the republic of indonesia, regional representative council, and regional people's representatives council. state gazette of the republic of indonesia, number 51 of 2008. supplement to the state gazette of the republic of indonesia, number 4836. 40vide article 8 paragraph (1) of law no. 10 of 2008. 41vide article 202 paragraph (1) of law no. 10 of 2008. volume 2, issue 1, june 2019 : 1 20 | 15 legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) these provisions show the spirit of simplification political parties, as evidenced by the enactment of the provisions as many as thirty-eight political parties participating in the election can converge into sixteen political parties. however, the number of political parties cannot be categorized as a simple political party system as the simple political party concept referred to in this study. d. legal politics for simplifying political parties in the 2014 election period 1. legal politics of simplifying political parties through the law on political parties referring to the elections results in 2009, policymakers ware deemed necessary to carry out changes related to the laws of political parties and electoral laws as a new direction for the legal politics of simplifying political parties. we can trace the new direction of legal politics in the new simplification of political parties in the formulation of law number 2 year 2011 concerning amendments to law number 2 year 2008 concerning political parties.42 the new direction of the policy of regulating the simplification of political parties is a policy that considers that law 31 of 2002 has not been optimal in accommodating the development society. so it is deemed necessary to determine the new direction of the policy of simplifying political parties. a. terms of establishment of political parties the changes in the direction of policy simplification of political parties are regulated by several changes in terms of the establishment of political parties, that to form a political party is established by at least 30 indonesian citizens aged 21 years in each province, registered by at least 50 founders representing all founders party with a notary includes 30% representation of woman. notary a deeds supplemented by ad and art and management at the national level.43 b. requirements to become a public legal entity furthermore, based on the provisions of article 3 paragraph (1), that to obtain status as a legal entity, political party organizations must register with the ministry law and human rights. to become a legal entity, political party organizations must meet the following requirements : (a) notary deed of establishment of political parties; (b) name, symbol, or sign that does not have quality in the main or the whole with the name, symbol, or sign that has been legally used by other political parties in accordance with the laws and regulations; (c) management in each province and at least 75% (seventy five percent) of the number of the 42law of the republic of indonesia number 2 of 2011 (law no. 2 of 2011) concerning amendment to law no. 2 of 2008 concerning political parties. state gazette of the republic of indonesia, number 8 of 2011. supplement to the state gazette of the republic of indonesia, number 5189. 43vide article 2 paragraph (1), (2) and (3) of law no. 2 of 2011. volume 2, issue 1, june 2019 : 1 20 16 | legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) district, / cities province concerned and at least 50% (fifty percent) of the total number of sub-districts and related districts / cities; (d) permanent offices at the central, provincial and district / city levels until the final stage of general election; (e) accounts in the name political parties.44 c. funding terms about the legal politics of simplifying political parties through political party financial arrangements, it is regulated that the financial resources of political parties cover : (a) membership fees; (b) legal donations and (c) financial assistance from the state budget income and expenditures / regional budget. as an effort to control the sources of political party funding as referred to in the previous description. so, in the policy of regulating the simplification of political parties regulated by the provision of financial party political resources, the supervisions policy is carried out through the obligation to submit accountability reports on revenues and expenditures originating from the state audit agency’s regional budget and regional expenditures budget assistance periodically. once a year to be audited no later than 1 (one) month after the end of the fiscal year.45 d. prohibitions and sanctions the policy of regulating the simplification of political parties through the prohibition provisions on political parties includes the prohibition of violations of article, article 3, article 9 paragraph (1), and article 40 paragraph (1). thus, if the political party violates the prohibition as stipulated in the description of the above article, the political party will be subject to sanctions, in the policy of regulating the simplification of political parties through sanctions can be imposed through administrative sanctions in the form of refusing the registration of political party organizations into the party’s legal entity. whereas political parties that violate the prohibition as referred to in article 13 letter i, political parties will be subject to administrative sanctions in the form of preventing assistance from the state budget for expenditures and expenditures / expenditures and regional assistance until the report in the related fiscal year. 2. legal politics for simplifying political parties through election laws a. requirements to become election participants for political parties wishing to participate as electoral political parties in the holding of elections for the 2014-2019 period, they must meet the requirements 44vide article 3 paragraph (2) of law no. 2 of 2011. 45vide article 34a paragraph (1) of law no. 2 of 2011 volume 2, issue 1, june 2019 : 1 20 | 17 legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) that include: 1) legal status in accordance with the law on political parties; 2) have stewardship throughout the province; 3) has management in 75% (seventy-five per cent) of the number of districts/ cities in the province concerned; 4) has management in 50% (fifty hundred per cent) of the number in the relevant regency/city; 5) include at least 30% (thirty per cent) of representation of women in the management of central level political parties; 6) has a membership of at least 1.000 (one thousand) or 1/1000 (one thousand) of the population in the management of a political party as referred to in letter c as evidenced by ownership of a membership card; 7) have a permanent office for management at the central, provincial and district/city levels until the final stages of the election ; 8) submit names, symbols and images of political parties to the kpu; and 9) submit the election campaign fund account number on behalf of the political party to the kpu. the above provisions do not apply to political parties that have met the vote acquisition threshold in the previous election. article b paragraph (1) and (2). b. requirements to get a seat in the dpr in law number 8 of 2012 the direction of legal political pendulum simplification of political parties regulated through the implementation of parliamentary thresholds has been a shift. where the parliament threshold of 2,5% applied in the 2009 election shifted to 3,5%. the provision emphasizes that to enter into the distribution of seats, political parties must meet the vote acquisition threshold requirements of at least 3,5% (three point five per cent) of the national legitimate votes.46 with the enactment of the parliamentary vote threshold, which is 3,5%, it can be simplifying political parties from twelve political parties to ten political parties that have rights in the distribution of seats in the dpr. however, the prevision shows that it has not been able to direct the formation of a simple party system referred to in this study. 46vide article 208 of law of the republic of indonesia number 8 of 2012 (law no. 8 of 2012) concerning general elections of members of people's representative council of the republic of indonesia, regional representative council, and regional people's representatives council. state gazette of the republic of indonesia, number 117 of 2012. supplement to the state gazette of the republic of indonesia, number 5316. volume 2, issue 1, june 2019 : 1 20 18 | legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) conclusion the legal politics of simplifying political parties in indonesia during the 2004 – 2014 general elections were carried out through the political party act and the general election law, wherein each election period a change in legal politics was carried out. the legal-political character of simplification of political parties during the 2004 – 2014 general election embraced democratic legal politics. however, overall legal politics of simplifying political parties in indonesia during the 2004 – 2014 elections was only oriented to the simplification of political parties in parliament, not oriented to the simplification of political parties as election participants. acknowledgement alhamdulillahi rabbil ‘alamin, thank you very much to lp2s universitas muslim indonesia, which specifically provides an opportunity for author to take part in the beginner’s research scheme and in general the author also express their deepest gratitude to the universitas muslim indonesia who have funded this research so that it can be completed on time and can become one of the sources of reference for legal writing, which specifically addresses the issue of political parties in indonesia. there are no more appropriate words for the author to say besides thank you. reference asshiddiqie, j. (2007). membangun budaya sadar berkonstitusi untuk mewujudkan negara hukum yang demokratis. in peringatan dies natalis ke xxi dan wisuda 2007 universitas darul ulum (unisda) (29 december 2007 ed.). lamongan: universitas darul ulum (unisda). casal-bértoa, f., piccio, d. r., & rashkova, e. r. (2012). party law in comparative perspective. working paper series on the legal regulation of political parties(16), 1 – 27. d., moh. mahfud m. (1998). politik hukum di indonesia. jakarta: lp3es. d., moh. mahfud m. (1999). pergulatan politik dan hukum di indonesia. yogyakarta: gama media. haris, s. (2014). praktik parlementer demokrasi presidensial indonesia. yogyakarta: cv. andi offset. husein, m. w., & hufron, h. (2008). hukum, politik, & kepentingan. yogyakarta: laksbang pressindo. volume 2, issue 1, june 2019 : 1 20 | 19 legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) katsina, a. m. (2014). party politics and party laws in new democracies: the case of nigeria in the fourth republic, 1999 – 2011. international journal of humanities and social science, 4(2), 142 – 152. katz, r. s., & crotty, w. (2014). handbook partai politik. bandung: nusamedia. law of the republic of indonesia number 2 of 1999 (law no. 2 of 1999) concerning political parties. state gazette of the republic of indonesia, number 22 of 1999. supplement to the state gazette of the republic of indonesia, number 3809. law of the republic of indonesia number 3 of 1999 (law no. 3 of 1999) concerning general election. state gazette of the republic of indonesia, number 23 of 1999. supplement to the state gazette of the republic of indonesia, number 3810. law of the republic of indonesia number 31 of 2002 (law no. 31 of 2002) concerning political parties. state gazette of the republic of indonesia, number 138 of 2002. supplement to the state gazette of the republic of indonesia, number 1425. law of the republic of indonesia number 12 of 2003 (law no. 12 of 2003) concerning general elections of members of people’s representative council of the republic of indonesia, regional representative council, and regional people’s representatives council. state gazette of the republic of indonesia, number 37 of 2003. supplement to the state gazette of the republic of indonesia, number 4277. law of the republic of indonesia number 2 of 2008 (law no. 2 of 2008) concerning political parties. state gazette of the republic of indonesia, number 2 of 2008. supplement to the state gazette of the republic of indonesia, number 4801. law of the republic of indonesia number 10 of 2008 (law no. 10 of 2008) concerning general elections of members of people’s representative council of the republic of indonesia, regional representative council, and regional people’s representatives council. state gazette of the republic of indonesia, number 51 of 2008. supplement to the state gazette of the republic of indonesia, number 4836. law of the republic of indonesia number 2 of 2011 (law no. 2 of 2011) concerning amendment to law no. 2 of 2008 concerning political parties. state gazette of the republic of indonesia, number 8 of 2011. supplement to the state gazette of the republic of indonesia, number 5189. law of the republic of indonesia number 8 of 2012 (law no. 8 of 2012) concerning general elections of members of people’s representative council of the republic of indonesia, regional representative council, and regional people’s representatives council. state gazette of the republic of indonesia, number 117 of 2012. supplement to the state gazette of the republic of indonesia, number 5316. volume 2, issue 1, june 2019 : 1 20 20 | legal politics of simplifying political parties in indonesia (case study of 2004 – 2014 election) lijphart, a. (1995). sistem pemerintahan parlementer dan presidensial (ibrahim r., trans.). jakarta: pt. raja grafindo persada. molenaar, f. (2012). latin american regulation of political parties: continuing trends and breaks with the past. working paper series on the legal regulation of political parties(17), 1 – 38. partai politik pemilihan umum tahun 2014. (2014, 14 agustus 2016). retrieved from http://www.kpu.go.id/index.php/pages/detail/2014/282. strong, c. f. (2015). konstitusi-konstitusi politik modern: studi perbandingan tentang sejarah dan bentuk. bandung: nusamedia. sulastri, e., suparno, yatim, s. s., & wijayakusuma, m. (eds.). (2010). modul 1: pemilih untuk pemula. jakarta: komisi pemilihan umum. volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty | 177 non-litigation process land dispute settlement for legal certainty teddy chandra faculty of law, maranatha christian university email: notteddychandra@yahoo.co.id abstract the purpose of this study is to try to make the legal instruments for land use hold land disputes over land disputes. the research method used in research responsibilities is normative juridical. the results of this study suggest that land disputes that are formed are multi-dimensional and complex covering legal, economic, political, and social culture, national defense needs. land administration is very important to reduce land disputes by following the land suitability regulations with article 19 paragraph (2) letter c of the uupa land certificates form public administration products, if disputes occur in the future, land dispute resolution and non-litigation land dispute resolution can be resolved. the part of the government that actively participates in the community helps to make an important contribution to public administration in indonesia with land disputes and non-litigation process. this model of law enforcement seeks to realize legal certainty in order to create a sense of security, peace and harmony, the impact of order will encourage people to try and work well as an effort to improve the quality of their lives. this article finally looks at the development of law by means of harmonizing values to overcome the problem solving that does not exist, which is damaged or wrong, which is still lacking, congestion, and deterioration or a deterioration in circumstances. win-win solutions are still strong enough and efficient to empower legal energy to resolve disputes in order to realize legal certainty and maintain social order in a culture. keywords : dispute resolution; land reform; non-litigation process; legal certainty. introduction land is one of the main sources for the survival and livelihood of the indonesian people, which is a gift from the creator, namely allah swt. the philosophy of the indonesian people wants to achieve an idealist that will seek land for the greatest achievement for the prosperity of the people who are divided fairly and evenly.1 land is a very important factor in the life of a community, especially for the people of indonesia where most of the population depends on land. in addition, land has a very important role in the life of the indonesian people or in the implementation of national development which is held as a continuing effort to create a just and prosperous society based on pancasila and the 1945 constitution2. 1harsono, boedi. (2002). menuju penyempurnaan hukum tanah nasional dalam hubungannya dengan tap mpr ri ix/mpr/2001. jakarta: universitas trisakti, p. 4. 2the 1945 constitution of the republic of indonesia. https://creativecommons.org/licenses/by-sa/4.0/ mailto:notteddychandra@yahoo.co.id volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty 178 | relating to creating a just and prosperous society, a society is inseparable from population growth in a city/district. while the high growth of urban population and the increasing development of land, the demand for land also increases, while the land supply is very limited. this situation results in higher land prices and in certain areas it is increasingly difficult to obtain land. this often leads to land disputes, both the control and ownership of land between community groups, between communities and companies, both private and state-owned corporation (bumn), and between communities and the government. land will be cultivated or used for meeting real needs. in this connection, the provision, designation, control, use, and maintenance need to be regulated. in order to guarantee legal certainty by continuing to provide legal protection for many people while maintaining the sustainability of their ability to support sustainable development.3 considering the importance of land for human survival, the legal provisions governing land issues are urgently needed as stated by wirjono projodikoro:4 “the existence of community needs for a rule of law certainty to the land in such a way, that every owner of the land-how much can be guaranteed in defending their property against interference from other parties”. because of this, on september 24 1960, law no. 5 of 1960 concerning basic regulations on agrarian principles (uupa) was enacted.5 the uupa fundamentally changed the land law that prevailed in indonesia at that time. these changes include changing the law that prevailed before the uupa, relating to customary law is the law that applies to the majority of indonesia’s population.6 thus after the entry into force of the uupa, the law applicable to earth, water and space is a national agrarian law.7 uupa has brought the indonesian people into unity in the field of agrarian law. if it is read carefully, the contents of the uupa contain the basic points and still require the existence of laws and regulations which are implementing regulations. the constitutional basis uupa is based on article 33 paragraph (3) of the 1945 constitution. the fourth amendment, which states that, “the earth and water and natural resources contained therein are controlled by the state and used as much as possible the prosperity of the people”, implies that each citizen have the right to enjoy the wealth and prosperity of the people is the goal to be achieved by article 33 paragraph (3) of the 1945 constitution fourth amendment.8 3harsono, boedi. (2002). op. cit., p. 5. 4prodjodikoro, r. wirjono. (1974). bunga rampai hukum: karangan tersebar. jakarta: pt. ichtiar baru van hoeve, p. 170. 5the purpose of the law of the republic of indonesia number 5 of 1960 concerning basic regulations on agrarian principles. state gazette of the republic of indonesia, number 104 of 1960. supplement to the state gazette of the republic of indonesia, number 2043. 6revocation is because the old legislation does not comply with the principles used. d., moh. mahfud m. (1998). politik hukum di indonesia. jakarta: lp3es, pp. 178 – 179. 7soerodjo, irawan. (2003). kepastian hukum hak atas tanah di indonesia. surabaya: arkola, p. 3. 8article 2 paragraph (1) of law no. 5 of 1960. volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty | 179 the elucidation of the uupa emphasizes that the meaning of “mastered” in this article does not mean “owned” but rather is understanding; which gives authority to the state, as the power organization of the indonesian nation, at the highest level to: 1. arranging and carrying out the designation, use, supply and maintenance of earth, water and space; 2. determine and regulate legal relations between people and earth, water and space; 3. determine and regulate the legal relationship between people and legal actions regarding earth, water and space. right to control from the state referred to in article 2 paragraph (1) of the uupa shall be the state having the power to regulate lands that have been owned by a person or legal entity or free lands that have not been owned by a person or legal entity will be directly controlled by the state. the state‘s right to control cannot be transferred to another party. granting the right to state land does not mean that the state relinquishes the right of control over the said land. the land is still under state control. the state does not relinquish its authority regulated in article 2 of the uupa, on the land concerned. however, the state‘s authority over lands that have been granted with some rights to another party is limited, until there is a limit of authority which is the content of the given rights. the boundary must be respected by the state. limitation of state power is a limitation held by the state for itself as a rule of law to not interfere with the control and use of land that has been granted with some rights to a person or legal entity.9 on the basis of the state‘s right to control land in the uupa, furthermore regulates various types of land rights granted to individuals and legal entities. the state grants certain types of land rights to individuals or legal entities. rights holders are charged with the obligation to register their land rights in order to achieve legal certainty. the uupa and its implementing regulations provide a guarantee of legal certainty over land rights in all regions of indonesia. the decree of the mpr ri no. ix/mpr/200110 states that agrarian reform is needed which includes a continuous process relating to the restructuring of mastery, research, use and utilization of agrarian resources, carried out in in order to achieve legal certainty and protection as well as justice and prosperity for all indonesian people.11 for legal certainty, one of the efforts taken is through recording. systematic recording of land and land rights is important both for the state administration and for the planning and development of the use of the land itself and for legal certainty in the transfer, transfer or assignment of land rights.12 9harsono, boedi. (1997). hukum agraria indonesia: sejarah pembentukan undang-undang pokok agraria, isi dan pelaksanaannya. jakarta: djambatan, p. 243. 10the decree of the people‘s consultative assembly of the republic of indonesia number ix/mpr/2001 concerning agrarian reform and natural resource management. 11harsono, boedi. (1997). loc. cit. 12soerodjo, irawan. (2003). op. cit., p. 26. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty 180 | carrying out land registration as mandated by article 19 paragraph (1) of the uupa and government regulation no. 24 of 199713 as an implementing regulation means that landowners receive protection and guarantee of legal certainty over land that has been registered and has strong evidence in the form of a certificate. this means it can reduce the occurrence of land disputes. uupa requires the registration of land in order to guarantee legal certainty. land registration is further regulated by government regulation no. 10 of 196114 which has been perfected by government regulation no. 24 of 1997 concerning land registration throughout indonesia. government regulation no. 24 of 1997 which enhances government regulation no. 10 of 1961 retains the purpose and system used in the uupa, namely that land registration is carried out in order to provide legal certainty in the land sector. in addition, the land registration system does not adhere to a pure negative system, but which contains positive elements. as stated in article 19 paragraph (2) letter c, article 23 paragraph (2), article 32 paragraph (2) and article 38 paragraph (2) of the uupa. land registration is carried out in two ways, first systematically covering an area of one village or a part of which is mainly carried out on the initiative of the government. second, sporadically, namely the registration of parcels of land at the request of the holder or recipient of the relevant rights individually or in bulk.15 on the basis of the state’s right to control, the government has the obligation to carry out land registration throughout the territory of the republic of indonesia in accordance with the uupa which is individualistic religious communalistic. besides aiming to protect land, the uupa also regulates the legal relationship to land rights through the transfer of certificates as proof of land rights for holders.16 government regulation no. 24 of 1997 requires landowners to immediately register their lands because the certificate has the power of proof and certainty of land rights. meanwhile, from 1960 to 2004 land in indonesia which had been recorded there were 84 million plots of land, which had been registered as many as 29 million plots of land, with details:17 1. between 1960 and 1988, 11 to 12 million parcels of land had been registered; 2. from 1988 to 2004, there were 16.5 million to 17 million land parcels registered. 13government regulation of the republic of indonesia number 24 of 1997 concerning land registration. state gazette of the republic of indonesia, number 59 of 1997. supplement to the state gazette of the republic of indonesia, number 3696. 14government regulation of the republic of indonesia number 10 of 1961 concerning land registration. state gazette of the republic of indonesia, number 28 of 1961. supplement to the state gazette of the republic of indonesia, number 2171. 15parlindungan, a. p. (1999). pendaftaran tanah di indonesia. bandung: cv. mandar maju, pp. 5 – 6. 16chandra, s. (2005). sertifikat kepemilikan hak atas tanah: persyaratan permohonan di kantor pertanahan. jakarta: pt. gramedia widiasarana, p. 13. 17bpn. (2004, oktober). pelatihan pendidikan teknis pejabat pembuat akta tanah (diklat ppat). puncak – ciloto: kementerian agraria dan tata ruang/badan pertanahan nasional, p. 1. volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty | 181 in granting a certificate to a land owner with the principle of legal certainty, it creates a problem if the certificate as proof of land rights can still be claimed, because the truth of the data in the certificate can still be sued by the true land owner to the general court. the government in this case uses a negative system, because land registration in indonesia has not been completed, as well the administration of land data in the local land office, such as the sub-district offices and the ranks of the relevant agencies have not been well recorded. this is expected because the data written in the certificate is incorrect or does not match the facts.18 accordingly, land disputes arise and originate from complaints from one party, namely individuals, groups or legal entities regarding objections or demands for the use, control of land rights. complaint means the submission of information or reports from parties who feel that their rights to their land are harmed, to other parties deemed authorized with the intention of obtaining a settlement either through law enforcement in court (litigation) or outside court (non-litigation). land disputes have increased from year to year19 which continued from independence, the old order, and the new order until the current reform order. land disputes can be purely a land ownership dispute for parties who feel they own land, but land disputes can also arise from efforts by land speculators to hamper development. the phenomenon of land disputes has been critically responded to by several legal practitioners. paulus effendi lotulung stated that since the state administrative court and the administrative high court were established, the cases that have been accepted are mostly land matters. accordingly, the statement of the national commission on human rights (komnas ham) that since its inception in 1994 the complaints that have come in are dominated by land issues. at the cassation level in 2001 there were 4,048 cases of civil cassation. of that number, around 51.06% or as many as 2066 cases were land disputes. meanwhile, the national ombudsman commission notes that land issues are ranked fifth out of complaints received, while the agrarian reform commission‘s data base records around 1,753 land dispute cases.20 according to the provisions of article 16 of law no. 4 of 200421 which has been perfected by the law no. 48 of 200922 concerning judicial power, judges may not reject a case. this provision eventually led to many lawsuits over the ownership of certified land, which was followed by confiscation of land ownership, the party that won the case could not carry out the decision because of resistance from community members. 18vide decision of district court of surabaya number 338/pdt.g/2007/pn.sby. 19sakti, trie. (2006). suatu konsep pemikiran peradilan pertanahan. jurnal ilmiah hasil-hasil penelitian pertanahan, badan pertanahan nasional, 7(2), p. 1. 20ibid. 21law of the republic of indonesia number 4 of 2004 concerning judicial power. state gazette of the republic of indonesia, number 8 of 2004. supplement to the state gazette of the republic of indonesia, number 4358. 22law of the republic of indonesia number 48 of 2009 concerning judicial power. state gazette of the republic of indonesia, number 157 of 2009. supplement to the state gazette of the republic of indonesia, number 5076. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty 182 | in addition, land dispute decisions issued by judicial institutions are not consistent and there is no unity of understanding of the concepts of land law, poor administration, data on land and decisions, no grouping of land status that is integrated from relevant institutions, lack of knowledge of judges, and lack of data on previous decisions relating to land have caused decisions made by the court to be useless, instead creating new problems which have increasingly become the cause of land disputes.23 this provision does not reduce the principle of providing balanced protection, both to those who own land and are controlled and used as appropriate and to those who acquire and control it in good faith, by him in order to provide legal certainty to holders of certified land rights, registration organizers land needs support from several groups, in addition to the government as well as from all walks of life, and in particular the support of land rights holders. legal certainty for certified ownership of land needs to be done in-depth and comprehensive research by developing various patterns in realizing legal certainty, specifically the process of resolving land disputes should be sought a theoretical conception in efforts to develop law and improve prosperity and welfare for landowners, so as to provide legal certainty for certified landowners and to avoid future land disputes. method this descriptive study provides a description of the actual problem based on the facts that arise, the research methods used in accordance with the formulation of the problem that is the focus of this study. this type of research is juridical normative legal research that takes material derived from the literature contained in a variety of legal science libraries. normative research which is the main research in this study is in accordance with the characteristics of typical legal science, so that the study material comes from the legal research library which is an academic scientific work. normative juridical research uses primary legal materials, secondary legal materials, and tertiary legal materials. departing from a legal issue that was examined by the author, then the technique of analyzing legal materials that have been summarized in full by the author, then described with qualitative analysis. analysis and discussion analysis and discussion contains a description of the results of research on issues that are the focus of research or the results of studies with efforts to develop the concept of legal development. the mandate of the 1945 constitution in addition to being a political constitution can also be referred to as an economic constitution. one of the important 23chandra, teddy. (2007). sengketa tanah meruya akibat carut marut sistem pendaftaran tanah di indonesia dikaitkan penyelesaian sengketa tanah. majalah poros, 5th edition, p. 53. volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty | 183 characteristics as an economic constitution is that the 1945 constitution contains the idea of a welfare state.24 study of the concept of socioeconomic state, the state is obliged to bring prosperity to all people, both social and economic welfare. the state aims to prosper its people and is demanded to provide the best and broadest possible service to its people. the originator of the flow of utilitarianism25 states that the law made by the ruler must be aimed at realizing the greatest happiness for as many people as possible (the greatest happiness of the greatest number), then the purpose of the legislation made by the ruler must be able to produce happiness for the community. for this reason, the authorities with their laws and regulations must try to achieve four objectives, that is: 1. to provide a living; 2. to provide abundant food; 3. to provide protection; 4. to achieve equality. article 33 of the 1945 constitution has also accommodated the need for development in the economic sector and for the first time it originated from the concept formulated by mohammad hatta as the basis for economic politics in the context of further economic development.26 the formulation was carried out with consideration of changes in europe (especially in the netherlands), liberal capitalism gradually vanished and the flow of neo-mercantilism grew stronger. based on this, mohammad hatta argued that the global economy that occurred in the third world at that time tended to develop and far from individualism, which would otherwise be closer to collectivism based on the principle of shared prosperity. mohammad hatta further said: “indeed collectivism is in accordance with the ideals of life in indonesia, since long ago the indonesian people, as well as other asian societies based on collectivism, which is known as the basis of mutual help”. it is this spirit of family and mutual cooperation that animates the formulation of the idea of managing people’s economic resources in the 1945 constitution. the indonesian economy is structured as a joint effort based on the principle of kinship. the important branches of production that control the lives of many people are controlled by the state. only the branches of production that are not important or do not control the lives of many people can be developed outside of state power. all wealth controlled by the country, whether in the form of earth, water, and natural resources contained therein must be used for the greatest prosperity of the people. 24asshiddiqie, jimly. (1998, 13 juni). undang-undang dasar 1945: konstitusi negara kesejahteraan dan realitas masa depan. in pidato pengukuhan jabatan guru besar tetap madya. jakarta: fakultas hukum, universitas indonesia, p. 1. 25ali, achmad. (2002). menguak tabir hukum: suatu kajian filosofis dan sosiologis. jakarta: gunung agung, pp. 267 – 268. 26swasono, sri edi (ed.) (1985). sistem ekonomi dan demokrasi ekonomi. jakarta: ui press, p. 1. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty 184 | being controlled by the state does not mean that the state itself is an entrepreneur, a businessman but a power of the state to make rules for economic smoothness, regulations which prohibit exploitation of the weak by capital.27 the purpose of state control over the sources of the country’s economy is to maximize the prosperity of the people. the state is obliged to:28 a) all forms of utilization (earth and water) and the results obtained (natural resources) must significantly increase the prosperity and welfare of the community; b) protect and guarantee the rights of the people contained in or on the earth, water and certain natural resources that can be directly or directly enjoyed by the people; c) prevent all actions from any party that will cause people to not have the opportunity or will lose their rights to enjoy natural wealth. in connection with a system of economic management that is in favor of the people, friedmann identified four functions of the state in the economic field, namely: 1) as a provider (guarantor) of people‘s welfare:29 2) as a regulator (regulator); 3) as an entrepreneur (entrepreneur) or run certain sectors through state-owned corporation (bumn); and 4) as umpire (supervisor, referee) to formulate fair standards regarding the performance of the economic sector. referring to the concept of socio-economic state such as the indonesian nation, the state is obliged to bring prosperity to all people, both social and economic welfare. the state aims to prosper its people and is demanded to provide the best and broadest possible service to its people. in paragraph iv of the preamble to the 1945 constitution explicitly stated the purpose of the country, namely: “protect all the people of indonesia and all indonesian blood and to promote public welfare, educate the nation‘s life and participate in carrying out world order based on independence, lasting peace and social justice …” philosophical formation of the state or government and the organizing apparatus, among others, is aimed at preventing and avoiding, at least reducing disputes that occur within the community,30 by it can be interpreted that the function of the state and government is to provide protection for its citizens, both in the political and socio-economic fields. there is an influence on the task of government with a view to guaranteeing the 27hatta, mohammad. (1977). penjabaran pasal 33 uud 1945. jakarta: mutiara, p. 28. 28manan, bagir. (1999). beberapa catatan atas rancangan undang-undang tentang minyak dan gas bumi. in makalah fakultas hukum. universitas padjadjaran: bandung, pp. 1 – 2. 29abrar. (1995). hak penguasaan negara atas pertambangan berdasarkan undang-undang dasar 1945. (doctoral dissertation), universitas padjadjaran, bandung, p. 26. 30kusnardi, moh., & saragih, bintan regen. (1988). ilmu negara. jakarta: gaya media pratama, pp. 210 – 225. volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty | 185 public interest, so that the field of work includes various aspects such as public health, education, housing, land distribution and so on,31 and is obliged to pay attention to general principles of good governance, that is:32 “legal certainty, balance, equality of decisions, principle of accuracy, principle of separation of authority, justice, honesty, nullifying the consequences of null and void decisions, protection, wisdom and the implementation of public interests”. development in the broadest sense includes all aspects of people’s lives, one of which is law and order enforcement which is an absolute prerequisite for efforts to establish a peaceful and prosperous indonesia, it is natural that hans kelsen sees law as something that should (das sollen), so that apart from social reality (das sein). everyone must obey the law as a state’s will. the law is nothing but a rule of order that requires people to obey as they should.33 if the law is enforced and order is realized, the certainty of security, peace and harmony can be realized. no law enforcement and order will hamper the achievement of people who try and work well to meet their daily needs. this means that the law must be an instrument to direct society towards the desired goal. legal reform efforts should begin with a conception that law is a means of community renewal,34 one of them carries out the function of law as an applied science to develop various procedures for legal certainty, as a consistent step in legal development. law as an important means of maintaining order must be developed and fostered, so as to provide space for this change. not the other way is hindering renewal efforts because they simply want to maintain old values. in fact, the law must come forward showing direction and giving way to renewal.35 good law is a law that is in accordance with the law that lives in society. this shows that there is a compromise between the written law as the needs of the legal community for the sake of legal certainty and living law in the community (living law) as an expression of appreciation for the important role of the community in the formation and orientation of the law.36 legal development (not just legal renewal) in this sense is the harmonization of values to cope with what is missing, broken or wrong, lack, congestion and deterioration or deterioration. whereas “law enforcement” should be interpreted as tackling these matters 31marbun, s. f., & d., moh. mahfud m. (1987). pokok-pokok hukum administrasi negara. yogyakarta: liberty, p. 45. 32purbopranoto, kuntjoro. (1981). beberapa catatan hukum tata pemerintahan dan peradilan administrasi negara. bandung: pt. alumni, 1981, pp. 29 – 30. 33rasjidi, lili. (2001). dasar-dasar filsafat dan teori hukum. bandung: pt. citra aditya bakti. 34kusumaatmadja, mochtar. (1976). hukum, masyarakat dan pembinaan hukum nasional: suatu uraian tentang landasan pikiran, pola dan mekanisme pembaharuan hukum di indonesia. bandung: fakultas hukum, universitas padjadjaran, pp. 8 – 9. 35kusumaatmadja, mochtar. (2002). konsep-konsep hukum dalam pembangunan (otje salman & eddy damian eds.). bandung: pt. alumni, p. 74. 36idham, h. (2004). konsolidasi tanah perkotaan dalam perspektif otonomi daerah. bandung: pt. alumni, p. 22. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty 186 | based on a harmonious value interwoven system to maintain (law as a tool of social control) and improve (law as a tool of social engineering) peace of human life.37 law enforcement implies that there are three elements which must always receive attention, namely: justice, usefulness or usufruct and legal certainty.38 the large number of land disputes is caused by the lack of awareness and understanding of the community towards the laws and other legal regulations in the land sector. coordination between agencies related to land issues, different perceptions of notions and regulations in the land sector need to be improved, so as not to cause uncertainty.39 the political objectives of law not only guarantee justice, but also create legal certainty. legal certainty is closely related to legal effectiveness, because legal certainty guarantees will arise, if the state has adequate means to implement existing regulations.40 land certificate as the final product of land registration as instructed by uupa and government regulations no. 24 of 1997, has binded the officials of the national land agency (bpn) to issue certificates as a strong proof of land ownership.41 the uupa has laid the groundwork for providing legal certainty regarding land rights. legal certainty regarding land rights is legal certainty aimed at the land sector, specifically regarding ownership and/or control. the existence of legal certainty over land rights will provide clarity about: 1. certainty regarding the person or legal entity that is the holder of land rights, also known as certainty regarding the subject of rights; 2. certainty regarding the location, boundaries, extent, whether or not burdened with other rights, and so on, in other words also referred to as certainty about the object of rights. based on the provisions of article 19 paragraph (1) it is intended that the certificate is to guarantee legal certainty and in paragraph (2) letter c the certificate is a strong means of proof, that is:42 “whoever submits events in his name on the basis of a right, is obliged to prove those events, on the other hand whoever submits events to rebut the rights of others, is also required to prove those events.” theories about the burden of proof that can be used as a guideline, that is:43 37sutedi, adrian. (2006). kekuatan hukum berlakunya sertifikat sebagai tanda bukti hak atas tanah. jakarta: bp. cipta jaya, p. 16. 38kusumaatmadja, mochtar. (1970). fungsi dan perkembangan hukum dalam pembangunan nasional. bandung: fakultas hukum, universitas padjadjaran, p. 2. 39elyana. (1997, 6 agustus). peran pengadilan dalam pelaksanaan peraturan pemerintah nomor 24 tahun 1997. in seminar kebijaksanaan baru di bidang pertanahan, dampak dan peluang bagi bisnis properti dan perbankan. jakarta. 40huijbers, theo. (1995). filsafat hukum dalam lintasan sejarah. yogyakarta: pt. kanisius, p. 119. 41sutedi, adrian. (2006). op. cit., p. 17. 42subekti, raden. (1985). pokok-pokok hukum perdata. jakarta: pt. intermasa, p. 177. 43pitlo, a. (1978). pembuktian dan daluwarsa: menurut kitab undang-undang hukum perdata belanda (m. isa arief, trans.). jakarta: pt. intermasa, p. 45. volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty | 187 a. theory of proof which is merely reinforcing (bloot affirmatief), namely: for those who say something must prove and who does not deny or deny it; b. subjective theory which states that a civil process is the implementation of subjective law or aims to maintain subjective law which means that those who express or claim to have rights must prove; c. an objective theory which states that filing a lawsuit means the litigant asks the court that the judge applies the provisions of objective law to the events submitted. therefore the litigant must prove and judge the task of applying objective law to the incident; d. public theory which gives broader authority to judges to seek the truth by prioritizing the public interest.44 article 1865 of the civil code (civil code) and article 163 of the herzien indonesisch reglement (hir) which states:45 “everyone argues that he has a right, or to assert his own rights or to deny someone else‘s rights, point to an event, is obliged to prove the existence of that right or event.” article 164 herzien indonesisch reglement (hir) juncto article 1866 of the civil code (civil code) states:46 “so what is called evidence, namely: documentary evidence, witness evidence, evidence of suspicion, confession and oath” all of these evidences in a court case are considered important, but because the hir adheres to the principle of formal proof, it is seen here that the written evidence which is only written evidence is considered important in the proof. the law of proof provides clues as to how the judge can establish the truth. in evaluating the strength of the evidence, several systems or theories of proof must be known, that is:47 a. subjective theory whoever demands a subjective right must prove the existence of that right. and those who oppose that right must prove the absence of that right. so the litigant must prove the facts that give rise to that right and the defendant must prove the facts that negate that right. b. objective theory the litigant must prove the existence of facts which, by objective law, are due to the legal consequences of the facts. instead the defendant must prove the existence of facts which in objective law are deviations from the things raised by the litigant. 44prodjohamidjojo, martiman. (1997). hukum pembuktian: dalam sengketa tata usaha negara (uu no. 5 tahun 1986, ln no. 77). jakarta: pt. pradnya paramita, p. 42. 45subekti, raden, & tjitrosudibio, r. (1995). kitab undang-undang hukum perdata. jakarta: pt. pradnya paramita, p. 475. 46tresna, r. (1995). komentar hir. jakarta: pt. pradnya paramita, p. 141. 47afandi, ali. (1986). hukum waris, hukum keluarga, hukum pembuktian: menurut kitab undang-undang hukum perdata (bw). jakarta: pt. bina aksara, pp. 196 – 197. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty 188 | c. propriety theory the judge makes the distribution of evidence based on justice. in a dispute the litigant and the defendant have the same position and the judge divides the burden of proof according to his own sense of justice. the judge can oblige the party with the burden of proof that is the easiest to provide proof. the certificate as a strong means of proof in the proof of ownership, the certificate guarantees legal certainty regarding the person who holds the ownership rights to the land. legal certainty regarding the location of the land, the boundaries and area of a parcel of land, and legal certainty regarding the rights to his land. strictly speaking, for legal certainty, protection can be given to people whose names are listed in the certificate from interference from other parties and to avoid disputes with other parties. the guarantee of legal certainty is not only addressed to the person whose name is listed on the certificate as the owner of the land, but also is a government policy in creating an orderly administration of land which places an obligation on the government to carry out registration of lands throughout indonesia. efforts to implement and enforce law in indonesia are divided into two dispute resolutions, namely in the court and outside the court. non-dispute resolution arises based on the needs of the community that requires solving problems with easy and fast procedures and to achieve a legal problem or dispute resolution must be built a new paradigm, namely changing the paradigm to adjudicate into a paradigm of solving problems or legal disputes. this new paradigm covers two main strategies48, that is: a. revitalization of functions to reconcile parties facing legal disputes. this function is mainly related to legal disputes that are not criminal cases, in accordance with existing provisions, the judge is obliged to bring the two parties to the dispute to have a discussion that produces a win-win solution; b. revitalizing social institutions by providing stronger foundations for the development of alternative dispute resolution (adr); c. rearranging the procedure for the settlement of a case to be more efficient, effective, productive and reflects the integration of the system among elements of law enforcement by detailing the division of tasks and authority among legal officers. the principle of an integrated justice system in criminal cases (integrated criminal judicial system), is not enough to regulate the coordination relationship between law enforcement; d. reorganize litigation rights which cause a protracted settlement, and contain various potential “permanent” conflicts between litigants. non-litigation process is an institution for dispute resolution or dissent through a procedure agreed by the parties, namely settlement outside the court by means of consultation, negotiation, mediation, conciliation, or expert judgment. 48manan, bagir. (2005). sistem peradilan berwibawa: suatu pencarian. yogyakarta: uii press, pp. 25 – 26. volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty | 189 one alternative to dispute resolution that can be carried out outside the court and conducted in a court conducted in indonesia is mediation. law no. 30 of 199949 and supreme court regulation no. 1 of 200850, considering that mediation is the settlement of disputes through a negotiation process of the parties with the assistance of the mediator,51 to find a win-win solution. along with the times and the human need for speedy resolution of a dispute, making dispute resolution in court is considered detrimental because it requires a long time and expensive costs. based on this, it raises a breakthrough that can resolve cases quickly and at low cost. alternative dispute resolution is usually used for disputes in the economic field. not only does the alternative dispute resolution have the advantage of being able to settle a dispute in a short time and low cost, but it has a very risky weakness that the results of this alternative dispute resolution must be registered at the district court within 30 (days) in accordance with article 6 paragraph (7) of law no. 30 of 1999. if the registration of alternative dispute resolution results is received by the district court within 30 (thirty) days it will not be an issue, but if the results of the dispute resolution agreed by the disputing parties are denied registration by the district court or beyond the time period which has been determined, it will lead to a longer dispute resolution process. alternative land dispute resolution institutions (alternative dispute resolution) are mediation institutions that can be used to resolve problems in the form of an agreement between the parties to the problem in question. along with the times and the human need for speedy resolution of a dispute, making dispute resolution in court is considered detrimental because it requires a long time and expensive costs. based on this, it raises a breakthrough that can solve cases quickly and at low cost. alternative dispute resolution is usually used for disputes in the economic field. some of the advantages of alternative dispute resolution are: a. complete quickly; b. the desire of the parties to the dispute without coercion; c. honorable and closed; d. confidentiality of both parties to the dispute is guaranteed (not published); e. expert opinions in their fields; f. flexibility; g. maintaining good relations between parties to the dispute; h. time and cost savings. 49law of the republic of indonesia number 30 of 1999 concerning arbitration and alternative dispute resolution. state gazette of the republic of indonesia, number 138 of 1999. supplement to the state gazette of the republic of indonesia, number 3872. 50supreme court regulation of the republic of indonesia number 1 of 2008 concerning mediation procedures in the court. 51sutadi, mariana. (2004, 17 – 18 februari). pendayagunaan perdamaian menurut pasal 130 hir/154 r.bg dan potensinya dalam mewujudkan keadilan yang cepat, sederhana dan biaya ringan. paper presented at the mediasi dan court annexed mediation, jakarta: kerjasama antara mahkamah agung ri dan pusat pengkajian hukum, p. 30. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty 190 | non-litigation process, among others, to carry out resolutions without the involvement of a third party, conciliation that is family friendly (mediation), namely mediation, with the assistance of a third party who is neutral in the effort to negotiate the settlement of the accident, the third party is not authorized to make decisions. the handling of land disputes can use settlement institutions based on authority as referred to in government regulations no. 24 of 1997, pmna/head of bpn no. 9 of 199952 and pmna/head of bpn no. 1 of 199953, mediation institutions, negotiation institutions and alternative dispute resolution agencies or alternative dispute resolution (adr/aps). in dealing with these disputes it is possible to coordinate between stakeholders and consultations with relevant agencies. the potential to conduct a case in an alternative dispute resolution process through a mediation, arbitration process involving the bpn, the local government, community leaders, the affected community. plaintiffs and defendants. the aps process reflects an easy, fast and inexpensive process so that it can resolve protracted land disputes at the court level. aps decisions can be directly carried out by the land administration (bpn) without having to wait for a court decision because from the beginning all parties who litigated, the bpn, local government and community leaders have been involved in the aps process. the author’s argument for the settlement of the land must involve not only the plaintiff/defendant but the land administration operator, the local government and community leaders. this problem has been answered if the aps process which is a legacy of indonesia’s ancestors that prioritizes the interests of the wider community rather than personal or group interests in resolving land issues. so that all parties sit together and equal/no party wins or loses (win-win lose) and realizes that the land he occupies now is a legacy of ancestors that must be preserved and preserved for the benefit of the people and the prosperity of the community as much as possible. conclusion negative land administration systems provide relative legal certainty for landowners as long as land ownership evidence is not proven otherwise. the administration process of issuing certificates through measurements, announcements, and examinations carried out by the national land office (bpn), subdistricts and villages is limited to procedural without a judicial review on the basis of normative juridical land ownership and recording of inaccurate transfer of rights causes errors in writing data on land and rights holders in the certificate can canceled. land dispute is a multi-dimensional and complex form of dispute, 52regulation of the minister of state agrarian/head of the national land agency of the republic of indonesia number 9 of 1999 concerning procedures for granting and cancellation of state land rights and management rights. 53regulation of the minister of state agrarian/head of the national land agency of the republic of indonesia number 1 of 1999 concerning procedures for handling disputes. volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty | 191 because it contains legal, economic, political, socio-cultural and security interests. the existence of land disputes illustrates the uncertainty of the competence of the judiciary’s structure in handling land disputes that take years. mediation and arbitration help the parties to the dispute reach an acceptable and favorable agreement. reference abrar. (1995). hak penguasaan negara atas pertambangan berdasarkan undang-undang dasar 1945. (doctoral dissertation), universitas padjadjaran, bandung. afandi, ali. (1986). hukum waris, hukum keluarga, hukum pembuktian: menurut kitab undang-undang hukum perdata (bw). jakarta: pt. bina aksara. ali, achmad. (2002). menguak tabir hukum: suatu kajian filosofis dan sosiologis. jakarta: gunung agung. asshiddiqie, jimly. (1998, 13 juni). undang-undang dasar 1945: konstitusi negara kesejahteraan dan realitas masa depan. in pidato pengukuhan jabatan guru besar tetap madya. jakarta: fakultas hukum, universitas indonesia. aswari, a., buana, a. p., & rezah, f. s. (2018). harmonisasi hukum hak untuk dilupakan bagi koran digital terhadap calon mahasiswa di makassar. kanun: jurnal ilmu hukum, universitas syiah kuala, 20(1), 39 – 62. bpn. (2004, oktober). pelatihan pendidikan teknis pejabat pembuat akta tanah (diklat ppat). puncak – ciloto: kementerian agraria dan tata ruang/badan pertanahan nasional. chandra, s. (2005). sertifikat kepemilikan hak atas tanah: persyaratan permohonan di kantor pertanahan. jakarta: pt. gramedia widiasarana. chandra, teddy. (2007). sengketa tanah meruya akibat carut marut sistem pendaftaran tanah di indonesia dikaitkan penyelesaian sengketa tanah. majalah poros, 5th edition. d., moh. mahfud m. (1998). politik hukum di indonesia. jakarta: lp3es. decision of district court of surabaya number 338/pdt.g/2007/pn.sby. elyana. (1997, 6 agustus). peran pengadilan dalam pelaksanaan peraturan pemerintah nomor 24 tahun 1997. in seminar kebijaksanaan baru di bidang pertanahan, dampak dan peluang bagi bisnis properti dan perbankan. jakarta. government regulation of the republic of indonesia number 10 of 1961 concerning land registration. state gazette of the republic of indonesia, number 28 of 1961. supplement to the state gazette of the republic of indonesia, number 2171. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty 192 | government regulation of the republic of indonesia number 24 of 1997 concerning land registration. state gazette of the republic of indonesia, number 59 of 1997. supplement to the state gazette of the republic of indonesia, number 3696. harsono, boedi. (1997). hukum agraria indonesia: sejarah pembentukan undang-undang pokok agraria, isi dan pelaksanaannya. jakarta: djambatan. harsono, boedi. (2002). menuju penyempurnaan hukum tanah nasional dalam hubungannya dengan tap mpr ri ix/mpr/2001. jakarta: universitas trisakti. hatta, mohammad. (1977). penjabaran pasal 33 uud 1945. jakarta: mutiara. huijbers, theo. (1995). filsafat hukum dalam lintasan sejarah. yogyakarta: pt. kanisius. idham, h. (2004). konsolidasi tanah perkotaan dalam perspektif otonomi daerah. bandung: pt. alumni. kusnardi, moh., & saragih, bintan regen. (1988). ilmu negara. jakarta: gaya media pratama. kusumaatmadja, mochtar. (1970). fungsi dan perkembangan hukum dalam pembangunan nasional. bandung: fakultas hukum, universitas padjadjaran. kusumaatmadja, mochtar. (1976). hukum, masyarakat dan pembinaan hukum nasional: suatu uraian tentang landasan pikiran, pola dan mekanisme pembaharuan hukum di indonesia. bandung: fakultas hukum, universitas padjadjaran. kusumaatmadja, mochtar. (2002). konsep-konsep hukum dalam pembangunan (otje salman & eddy damian eds.). bandung: pt. alumni. law of the republic of indonesia number 5 of 1960 concerning basic regulations on agrarian principles. state gazette of the republic of indonesia, number 104 of 1960. supplement to the state gazette of the republic of indonesia, number 2043. law of the republic of indonesia number 30 of 1999 concerning arbitration and alternative dispute resolution. state gazette of the republic of indonesia, number 138 of 1999. supplement to the state gazette of the republic of indonesia, number 3872. law of the republic of indonesia number 4 of 2004 concerning judicial power. state gazette of the republic of indonesia, number 8 of 2004. supplement to the state gazette of the republic of indonesia, number 4358. law of the republic of indonesia number 48 of 2009 concerning judicial power. state gazette of the republic of indonesia, number 157 of 2009. supplement to the state gazette of the republic of indonesia, number 5076. volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty | 193 manan, bagir. (1999). beberapa catatan atas rancangan undang-undang tentang minyak dan gas bumi. in makalah fakultas hukum. universitas padjadjaran: bandung. manan, bagir. (2005). sistem peradilan berwibawa: suatu pencarian. yogyakarta: uii press. marbun, s. f., & d., moh. mahfud m. (1987). pokok-pokok hukum administrasi negara. yogyakarta: liberty. parlindungan, a. p. (1999). pendaftaran tanah di indonesia. bandung: cv. mandar maju. pitlo, a. (1978). pembuktian dan daluwarsa: menurut kitab undang-undang hukum perdata belanda (m. isa arief, trans.). jakarta: pt. intermasa. presidential regulation of the republic of indonesia number 63 of 2013 concerning national land agency of the republic of indonesia. state gazette of the republic of indonesia, number 155 of 2013. presidential regulation of the republic of indonesia number 20 of 2015 concerning national land agency. state gazette of the republic of indonesia, number 21 of 2015. prodjodikoro, r. wirjono. (1974). bunga rampai hukum: karangan tersebar. jakarta: pt. ichtiar baru van hoeve. prodjohamidjojo, martiman. (1997). hukum pembuktian: dalam sengketa tata usaha negara (uu no. 5 tahun 1986, ln no. 77). jakarta: pt. pradnya paramita. purbopranoto, kuntjoro. (1981). beberapa catatan hukum tata pemerintahan dan peradilan administrasi negara. bandung: pt. alumni. qamar, n., syarif, m., busthami, d. s., & rezah, f. s. (2016). sosiologi hukum (sociology of law). jakarta: mitra wacana media. rasjidi, lili. (2001). dasar-dasar filsafat dan teori hukum. bandung: pt. citra aditya bakti. regulation of the minister of state agrarian/head of the national land agency of the republic of indonesia number 1 of 1999 concerning procedures for handling disputes. regulation of the minister of state agrarian/head of the national land agency of the republic of indonesia number 9 of 1999 concerning procedures for granting and cancellation of state land rights and management rights. sakti, trie. (2006). suatu konsep pemikiran peradilan pertanahan. jurnal ilmiah hasil hasil penelitian pertanahan, badan pertanahan nasional, 7(2). https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 177 194 non-litigation process land dispute settlement for legal certainty 194 | soerodjo, irawan. (2003). kepastian hukum hak atas tanah di indonesia. surabaya: arkola. subekti, raden, & tjitrosudibio, r. (1995). kitab undang-undang hukum perdata. jakarta: pt. pradnya paramita. subekti, raden. (1985). pokok-pokok hukum perdata. jakarta: pt. intermasa. supreme court regulation of the republic of indonesia number 1 of 2008 concerning mediation procedures in the court. sutadi, mariana. (2004, 17 – 18 februari). pendayagunaan perdamaian menurut pasal 130 hir/154 r.bg dan potensinya dalam mewujudkan keadilan yang cepat, sederhana dan biaya ringan. paper presented at the mediasi dan court annexed mediation, jakarta: kerjasama antara mahkamah agung ri dan pusat pengkajian hukum. sutedi, adrian. (2006). kekuatan hukum berlakunya sertifikat sebagai tanda bukti hak atas tanah. jakarta: bp. cipta jaya. swasono, sri edi (ed.) (1985). sistem ekonomi dan demokrasi ekonomi. jakarta: ui press. the 1945 constitution of the republic of indonesia. the decree of the people‘s consultative assembly of the republic of indonesia number ix/mpr/2001 concerning agrarian reform and natural resource management. tresna, r. (1995). komentar hir. jakarta: pt. pradnya paramita. volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia 118 | problems of border regions in ensuring legal certainty invest in indonesia rieka lieke lontoh faculty of law, universitas katolik de la salle manado email: rietha_lontoh@yahoo.com abstract the mandate of article 33 of the 1945 constitution of the republic of indonesia maximizes all elements of development as an effort to realize the people’s prosperity through the development of law in the field of investment in the perspective of regional autonomy in the border regions of the republic of indonesia. border areas are a problem because legal certainty for investors has yet to find a meeting point for investment, especially in border areas, so it seems that government responsibilities are still minimal in efforts to equalize the welfare of its people. normative juridical research methods using secondary legal materials produce a coherent legal science research in finding the truth, and the results of this study suggest that legal certainty does not accommodate the interests of development in border areas, causing a chain problem and an investment climate improvement is based on the fact that the lack the interest of foreign investors in indonesia is caused by various obstacles, which in turn hinder the business of investors or cause the transfer of business to other countries. the author concludes to overcome economic problems, especially in investing, the government takes steps to encourage the competitiveness of national industries, through deregulation, bureaucratization, and law enforcement and business certainty. therefore, through this paper, it is necessary to reform the legal rules by preparing regional regulations, especially in north sulawesi relating to investment management in the border region, as a sample of study material that can provide legal certainty and protection for investors throughout indonesia. keywords : investation; regional autonomy; border area introduction article 33 of the 1945 constitution of the republic of indonesia whose purpose is for the welfare of the people, all potentials in the field of economic development, especially earth, water, and natural wealth must be maximized as the maximum goal is for the prosperity of the people. the highest authority holder, the interests of the people must be prioritized by involving the state as the movers, organizers and executors of development with the aim of the people’s prosperity, as the national development vision and mission of 2005 – 2025 refers to the country’s goals as outlined in chapter iii of the republic of indonesia number 17 in 2007 concerning the national long-term development plan and the core of a just, prosperous, and independent nation that is also the driving force, implementer and object of national development, the people also have the right to enjoy the results of development all of which are carried out for the benefit of the people by the people and https://creativecommons.org/licenses/by-sa/4.0/ mailto:rietha_lontoh@yahoo.com volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia | 119 for the people who prioritize justice in nation-building. the stream of expediency with the motto “the greatest happiness of the greatest number” emphasizes the importance of government intervention to create maximum happiness for many people.1 vision and mission will be realized if optimally and the potential possessed by maximizing natural resources as the main capital of national development an important task of the government is to realize indonesia as a welfare state with the aim of advancing public welfare and social justice, namely by establishing various public policies in order to improve social welfare. this does not conflict with the thought of the flow of law that emphasizes the achievement of happiness as much as possible for many people, known as utilitarianism. utility theory states that the law aims to realize only what is beneficial.2 good and bad law in managing a country’s economy must be measured by the merits of the consequences resulting from the application of the law. this means that a new legal provision can be judged well if the consequences resulting from its application are good, maximum happiness and less suffering.3 the economic growth of a region also depends on the geographical factors of a region. the geostrategic concept is not associated with the development of the concept of development policies and strategies that motivated the economic benefits, but also capable of bringing glory development of a country in various fields who not only seek economic profit as the main objective, but also build strength, influence, and the glory of the country.4 the implementation of government affairs by the regional government is carried out based on the principle of autonomy and co-administration, which means that the rights, authorities and obligations of the autonomous region to regulate and manage their own government affairs and the interests of the local community, because the government realizes that central government affairs which are the authority of the central government cannot possibly be carried out as well as possible by the central government in the interests of public service governance and the welfare of the people in all regions. considering the geographical, political, legal, social and cultural conditions that are very diverse and patterned, and the territory of the unitary republic of indonesia is so broad that it encompasses various islands, it is very appropriate to provide autonomous policies so that each region will be more capable and independent to provide service and improvement of people’s welfare in the area. this change and development is a characteristic of the modern state which places more emphasis on improving people’s welfare.5 1riyanto, astim. (2003). filsafat hukum. bandung: yapemdo, p. 265. 2syahrani, riduan. (2004). rangkuman intisari ilmu hukum. bandung: pt. citra aditya bakti, p. 22. 3rasjidi, lili, & putra, i. b. wyasa. (2003). hukum sebagai suatu sistem. bandung: cv. mandar maju, pp. 116 – 117. 4sarundajang, sinyo harry, & kuncoro, mudrajad. (2011). geostrategi: sulawesi utara menuju pintu gerbang indonesia di asia pasifik. jakarta: kata hasta pustaka, p. 11. 5manan, bagir. (2001). menyongsong fajar otonomi daerah. yogyakarta: uii press, p. 83. volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia 120 | local governments are required as a public servant, stimulator, facilitator, catalyst, and managers who have the entrepreneurial spirit to the development process and increase social welfare.6 the participation of investors in the management of natural potentials are expected to help the government to manage and develop all economic power has an important role in improving the prosperity and welfare as well as provide real added value to the national economy. one effort to increase investment in indonesia is rearranging the rules of law, especially concerning the problem of investment to attract as many investors entered invest in indonesia. investors in running her business require legal certainty in investing activities so that things that have been agreed can be implemented according to the rules. legal certainty provides legal protection for investors in investing in a form of confidence in the establishment of the legal relationship between investors who are willing to invest the capital recipient.7 investment activities in indonesia have often complained of by the investor which is associated with licensing issues, security, employment, law enforcement, and so forth. this is to say that the investment climate in indonesia is not conducive for investors when investing risky nature of activity so that investment activity should be supported by rules that create legal certainty, promoting justice, fair and efficient, because the principles of this law create the reasonableness and the tranquillity of life.8 legal certainty for investors is a necessity that can’t be bargained again as investors, in addition, is subject to the investment law is also subject to other regulations related to investment such labour, taxes, license, land issues that serve as a material consideration in investors invest their capital. an assurance on the implementation of clear and strict rules that is the appeal of investors for their atmosphere is conducive for their investment capital remains safe so that investors can comfortably work in indonesia. efforts to support increased investment, especially foreign investment, this law carries several principles including, that there is no different application between foreign investment and domestic investment, there are no restrictions on control of the public sector, including arrangements aimed at sector development and protection, to be associated with regional development, technology transfer to the development of small and medium enterprises. even this law brings the spirit of liberalization related to the opportunity for investors to transfer and repatriate capital freely and guarantee free nationalization.9 this is done as an effort to attract as much foreign capital as possible to support economic 6mardiasmo. (2004). otonomi dan manajemen keuangan daerah. yogyakarta: cv. andi offset, p. 59. 7s., salim h., & sutrisno, budi. (2008). hukum investasi di indonesia. jakarta: pt. raja grafindo persada, p. 123. 8atmosudirdjo, s. prajudi. (1990). dasar-dasar administrasi negara. jakarta: ghalia indonesia, p. 26. 9vide article 8 of law of the republic of indonesia number 25 of 2007 (law no. 25 of 2007) concerning investment. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia | 121 development in indonesia. then this investment law also makes it easy for investors in terms of services and/or licensing of land rights as referred to in article 21 letter “a” can be granted and extended upfront at the same time and can be renewed at the request of investment, in the form of cultivation rights title, and right to use title. favourable investment climate conducive to investment activity in indonesia is reflected in the legal field of the capital market is good so it has international competitiveness will thus provide more free space in order to capital, technology and labour can move easily between regions of the country. moreover, if it is associated with the ongoing globalization process in the world that requires local international have competitive readiness, both nationally and internationally.10 minimal infrastructure in the border regions has shown that the government does not have a serious concern with border management systems that can support the economic improvement of the people in the form of investment. the existence of the welfare state can not be separated from the role of government that is responsive to the management and organization of the economy to carry out its responsibility to ensure the availability of basic welfare services in a certain level for its citizens.11 development policies still pay less attention to border areas and are more directed towards areas that are densely populated, have easy and potential access, while development policies for remote, isolated and disadvantaged areas such as border areas are still not prioritized. border issues have a complex dimension, there are some crucial factors involved in them, such as jurisdiction and sovereignty of the state, political, social, economic, and defence and security. handling various problems still faces various obstacles, especially those related. this causes a lack of attractiveness for business actors to carry out their economic activities in the border regions of indonesia, with institutional aspects, because it has been neglected for a long period, the border region in indonesia has been considered to have a negative image in the eyes of the world. the negative image created is a result of the border area being made as a place where the problems of illegal workers (illegal workers), logging and deforestation (illegal logging), and smuggling (smuggling). also the underdeveloped development in the border region and the emergence of tensions as a result of the isolation of the region, causing this area can be an entry point for the escape of terrorists who are concerned about the international world (transnational-terrorists).12 so this research attempts to answer the research results and becomes the formulation of the problem: how is the guarantee of legal certainty that provides legal protection for investors in the implementation of investment in indonesia? 10tjokroamidjojo, bintoro. (2000). good governance: paradigma baru manajemen pembangunan. jakarta: ui press, p. 2. 11samidjo. (1986). ilmu negara. bandung: cv. armico, p. 57. 12kemitraan partnership. (2011). kebijakan pengelolaan kawasan perbatasan indonesia. in partnership policy paper no. 2/2011. jakarta: the partnership for governance reform, p. 4. retrieved from http://www.kemitraan. or.id/policy-paper-no-22011-kebijakan-pengelolaan-kawasan-perbatasan/# volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia 122 | method this study uses the type of normative juridical research as legal science research methods. this research approach uses the primary source of secondary data in completing research, derived from a literature review that consists of some literature that can be assessed as a result of the study as legal science. approach this type of research efforts to find a law in concreto which aims to apply the appropriate law in addressing a particular issue. also, the historical approach complements of this article so descriptive-analytical nature biodegradable systematic and coherent in breaking down this article. analysis and discussion a. legal certainty guarantee to provides legal protection for investors in the implementation of investment in indonesia investment and economic law are two systems of the social system that interact with one another. the law is a set of norms that govern the relations of economic activity and is substantially influenced by the economic system used by the country concerned, whether liberalistic, socialist or mixed.13 however, according to the author’s opinion that the scope of the investment law cannot be separated from article 33 of the 1945 constitution of the republic of indonesia, which is the legal basis for indonesian economic activities. stated in the 1945 constitution of the republic of indonesia, there are 2 articles that can be used as guidelines for the economic structure aspired by indonesia, namely article 27 paragraph (1) and paragraph (2) and article 33, both articles show that there are 5 the principle which is the main characteristic of the indonesian economic system, namely the principle of equality in law (article 27 paragraph (1)), the principle of humanity (article 27 paragraph (2)), the principle of kinship (article 33 paragraph (1)), the principle of balance (article 33 paragraph (2)) and the principle of benefits (article 33 paragraph (3)).14 every opinion about investment laws have specific reasons based on differences in the angle of reviews, but most importantly by the authors is how the investment law systemic role in the economic development of indonesia, especially in the border region so that the purpose of the establishment of the state of indonesia as already stated emphatically in the fourth paragraph of the 1945 constitution of the republic of indonesia can be achieved. indonesia’s economic development activities should be based on the provisions of the law, so that the limited economic resources can be utilized for the prosperity of the people of indonesia based on justice. 13hartono, c. f. g. sunaryati. (1985). hukum ekonomi pembangunan indonesia. bandung: bina cipta, pp. 16 – 17. 14saleh, ismail. (1990). peranan konglomerasi sebagai pelaku ekonomi dalam rangka pembangunan nasional. in pokok-pokok pikiran mengenai pengaturan persaingan sehat di dunia usaha (20 february ed.). jakarta: universitas tarumanagara, p. 63. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia | 123 indonesian investment law should be supported toward the regulation of economic development activities in indonesia systemically, which in turn will provide certainty in the implementation of the legal relationship to the activities of the indonesian economy, among others, by creating rights and obligations for legal subjects. legal certainty in the economy, especially investment or investment, is an absolute demand and is the main driving force for attracting foreign investors to invest their capital. the existence of a good legal infrastructure, which consists of a set of rules, institutions and processes that realize the enactment of such rules fact, allow for the proper functioning of the economic system.15 various opinions of experts on the role and function of law in national development include the opinion of mochtar kusumaatmadja who said that the role of law in economic development can be seen from the main purpose of law, namely order, as a basic requirement for the existence of an organized human society,16 the role of important law in achieving justice, which is essentially rooted in a condition that at a certain time desired by a certain society,17 and there are four legal functions in national development:18 1. law as a preserver of order and security. 2. the law as a means of development. 3. the law as a means of justice. 4. law as a means of public education. investment or investment law as described above cannot be separated from international economic law. the indonesian economy as an open economic system has economic relations with other countries in the world, which are characterized, at least, by the activities of indonesia’s export and import trade with these countries. conducting international trade is an activity that is commonly done by various countries.19 likewise, the flow of investment from one country to another, both directly and indirectly or the movement of capital owners from one country to another (movement natural persons), is part of international economic activity. a welfare state like indonesia, investment law has a role in economic development. economic development is aimed at achieving the objectives of the welfare state, taking into account broad employment opportunities through an opening as many economic activity units as possible. all of that requires direct capital flows 15kusumaatmadja, mochtar. (2002). konsep-konsep hukum dalam pembangunan (otje salman & eddy damian eds.). bandung: pt. alumni, p. 10. 16ibid. 17soekanto, soerjono. (1976). beberapa permasalahan hukum dalam kerangka pembangunan di indonesia. jakarta: yayasan penerbit universitas indonesia, pp. 4 – 5. 18hartono, c. f. g. sunaryati. (1985). op. cit., p. 8. 19sukirno, sadono. (2006). ekonomi pembangunan: proses, masalah, dan dasar kebijakan. jakarta: kencana prenada media group, pp. 202 & 222. volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia 124 | (direct investment), both sourced from within the country (domestic direct investment) and from abroad (foreign direct investment). indonesia’s economic development is carried out in accordance with the national development planning system, which was compiled in the law of the republic of indonesia number 25 of 2004 concerning the national development planning system, with one of the considerations that the government of the indonesian state was formed to protect all the people of indonesia and all of indonesia’s blood spills, advancing general welfare, educating the nation’s life and participating in carrying out world order. a more detailed description of the national development planning system is contained in the form of law no. 17 of 2007 concerning the national long-term development plan 2005 – 2025 (rpjpn 2005 – 2025) and is now in the third period as outlined in the republic of indonesia presidential regulation (perpres) number 2 of 2015 concerning the 2015 – 2019 national medium-term development plan. improving the investment climate is based on the fact that the lack of interest of foreign investors to indonesia due to various constraints, which in turn inhibits the efforts of investors or cause the transfer of business to another country. the problems faced by, among others: 1. the lack of legal certainty among others, reflected a delay in settlement of cases of investment, 2. the licensing procedure and manner of bureaucratic service, takes time and is expensive, 3. the lack of investment incentives granted, 4. uneven infrastructure and damage to a number of infrastructure in the regions have hampered the smooth expedition and distribution of people, goods and capital for investment activities, 5. the employment climate less conducive to supporting the investment activities that include quality up to wage. investment activities are defined as capital formation in the form of expenditures made by investors to purchase capital goods and production equipment to increase the ability to produce goods and services available in a country’s economy, and economic growth in a country can occur if supported by there is an investment flow (direct investment) in the country. the presence of direct investment in general provides positive benefits for the host country, consumers and local business partners in the investment destination country. indonesia’s economic system showed that indonesia’s economic development can’t be separated from international economic activities. the presence of the investment law is an example that indonesia’s economic development cannot be carried out on its own. the presence of foreign capital in indonesia’s economic development is a https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia | 125 necessity, as appropriate with other countries such as china and india. to find out how the role of foreign investment in the indonesian economy is still relatively little research conducted to measure specifically the role of foreign investment. since the enactment of the foreign investment law in 1967 and replaced with law of the republic of indonesia number 25 of 2007 concerning investment, investment development both in terms of the total investment value and the number of companies per year, fluctuates from year to year. fluctuations both in terms of value and number of companies heavily influenced by government policy in the field of foreign investment both foreign and domestic, from time to time, have ups and downs, which means that at any given moment, discretion is rigorous but at other times relatively loose. the law contains the norms that regulate, govern, force and prohibit and so on. the norm does not understand whether the norm will be effective or not. term development of the law has a broader meaning, thorough and fundamental than the term law reform, legal guidance. legal reform implies constructing a legal system to adjust to changing society. economic growth activities are strongly supported by development funds that can be obtained through savings and investment activities. this investment activity influences contributing to economic growth. the law is very instrumental in increasing economic efficiency through investment activities, for example, that the rule of law that provides guarantees of certainty will attract investors. economic development resulted in a fundamental shift in world trade. this not only has a significant impact on the country but also on all forms of regional and multilateral cooperation. investment is a key enabler which can encourage the growth of industry and trade sector activities and the creation of a good balance between sectors and trade as well as the creation of a balance across sectors and economic actors in restoring economic growth.20 investment activities or investments both foreign and domestic have an impact on economic growth, this is due to the development of capital from government sources that there are limitations to investment must be minimized and reorganized. legal certainty can give a value for the investor to take their investment policies. if the investment activities in indonesia have a good opportunity, in the sense of a very high level of investment return for investors it is a fortune. b. legal arrangements investment gives certainty and legal protection for investors following the nature of the law that is the law that regulates also the law that resolves disputes. legal certainty is created by written regulations made by the 20halwani, hendra. (2002). ekonomi internasional dan globalisasi ekonomi. bogor: ghalia indonesia, p. 68. volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia 126 | central and regional governments as a form of government seriousness in improving the economy of the community by providing legal certainty as stipulated in law of the republic of indonesia number 25 of 2007 concerning investment in article 4 paragraph (2) b which states that “the state guarantees legal certainty, business certainty and business security for investors from the process of licensing until the end of investment activities in accordance with statutory provisions.” law enforcement in the field of investment is often a question of investors. does the investment activity have the value of certainty and legal protection for investors? this is important because investors often want legal certainty in investing. the law was a major contributor to the validity of investing activities, namely to provide protection, legal certainty and fairness. this argument is based on an understanding that more attractive investment activity creating adequate infrastructure investment, including administrative and legal infrastructure than giving tax incentives for long term investment. the legal and development context places the laws and regulations as the main legal sources.21 law as the main contributor in the validity of development activities must be able to provide legal protection and certainty, otherwise if the law does not support or the law is compiled and/or formulated by not using good legal principles, for example disobeying the principle, in the procedures for drafting regulations, disobeying the principles in application of legislation, this will have an impact on uncertainty and legal protection. the main source of law in development is legislation, so if there is legislation that does not adhere to the principles in the preparation and formulation of norms, then the legal regulations do not support the concept of development law. legal certainty can provide a sense of order, peace and security if the community is involved in it. the consequence is that the law must have credibility by showing consistency flow if it is not consistent then the community will not rely on it as a set of norms that govern common life.22 the concept of law and development in indonesia emphasizes that the main source of law is legislation. the law in providing the value of legal certainty to the community is something that must be done and implemented because the provision of legal certainty through the law must also pay attention to regional autonomy because currently the region is given the authority to explore and develop the potential of the region. the habit of giving the job without going through the exact mechanism is very contrary to the principles of good governance, the transparency necessary with appropriate regulations. the principle of legal certainty itself is at least an aspect of legal certainty in the form of a decision that must be clearly formulated so that 21ibid. 22kusumohamidjojo, budiono. (1999). ketertiban yang adil: problematik filsafat hukum. jakarta: grasindo, pp. 150 – 151. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia | 127 understanding of the decision does not depend on one’s interpretation, not multiple interpretations so that everyone who faces the decision must be able to grasp what is meant in the decision.23,24 another important investment activity is obedience in contract matters, because if not, then it is an indicator of violations of legal protection due to lack of legal certainty. the indonesian people have explicitly stated in the 1945 constitution of the republic of indonesia that indonesia is a state of law, this means that all activities must be based on existing legal norms, including investors and recipients of capital in carrying out business activities in it is investing. this means that if an investor is going to make an investment in addition to having to pay attention to investment law, he must also understand the various provisions related to investment because it is important to know that the rules are made so that those who will enter the business realm to be carried out already understand the rules set.25 if a company that has obtained a business license by considering the benefits that will be obtained when running a business that has received an investment license is suddenly revoked its license, in this case it requires consistency and consequences in granting a license so that it does not violate the established legal signs so that investors feel comfortable in investing. the principle is that the relationship between investors as owners of capital and recipients of capital is very closely related because investors will be willing to invest their capital if the state as a recipient of capital can provide and guarantee legal certainty, legal protection and a sense of investment security. in the absence of legal certainty, legal protection and security it is impossible for an investor is willing to invest.26 but in reality the judge also provides multi-interpretation of the rule, for example in derivative agreements in the stock market, on the one hand derivative agreements is justified by the act but often judges rests on the provisions of articles contained in the draft civil code that does not justify derivative agreements because it is categorized as a profit agreement, conducive regulations are needed that can provide protection and legal certainty in carrying out investment activities in indonesia. economic development must be carried out in a consistent, joint and complementary and supportive manner so that growth leading to stable economic development increases to produce a just and prosperous state goal.27 economic achievement in improving the lives of many people certainly cannot be separated from 23fahmal, a. muin. (2006). peran asas-asas umum pemerintahan yang layak dalam mewujudkan pemerintahan yang bersih. yogyakarta: uii press, p. 32. 24indroharto. (1994). pentingnya asas-asas umum pemerintahan yang baik. in paulus effendi lotulung (ed.), asas-asas umum pemerintahan yang baik. bandung: pt. citra aditya bakti, p.147. 25margono, sujud. (2008). hukum investasi asing indonesia. jakarta: novindo pustaka mandiri, p. 15. 26sembiring, sentosa. (2010). hukum investasi: pembahasan dilengkapi dengan uu nomor 25 tahun 2007 tentang penanaman modal. bandung: nuansa aulia, p. 15. 27baharuddin, hamzah. (2008). hak gugat lembaga swadaya masyarakat (lsm) dalam rangka kontrol terhadap pelayanan publik. makassar: pt. umitoha ukhuwah grafika, p. 21. volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia 128 | the understanding that the law is an economic tool in upholding rights, protection for the community, especially economic actors so that they can invest safely and protected. improvement of people’s welfare has a very broad dimension, encompassing all fields of life that directly or indirectly involve human dignity.28 if an economic activity, in this case, the investment provides legal protection in the form of legal certainty, it will have a positive impact on economic development in the country of indonesia. development of the law consistently and planning is one of the most important keys to the development of the national economy to raise the image and credibility of the country in the eyes of foreign investors and domestic. appropriate law enforcement functions and mandate than the impact on the development of the national economy. the running of the legal function in business activities will provide certainty and legal protection because legal certainty and clear protection will provide motivation for economic actors to invest, both investing in the capital market, general trade, and other forms of business. increasing the confidence of entrepreneurs because of legal protection will determine business considerations rationally and will drive the economic wheel, economic structure, become better and increase the state revenue sector. ensuring legal certainty will positively impact the arrival of foreign and local investors in doing business in indonesia because of the credibility of the country used as a benchmark for their business development. application in providing legal certainty guarantees and legal protection for investors, the services provided in the form of a one-stop service pattern with the issuance of presidential regulation no. 97 of 2014 concerning the implementation of one-stop integrated services implemented by the regions with the formation of government institutions that will take care of, develop and creating an integrated licensing system with fast, efficient and effective services for investors by referring to regulations on licensing guidelines and procedures for investment facilities and regulations on guidelines and procedures for controlling investment implementation.29 this licensing system involves aspects of legality which include the validity of the objectives, authority, procedures, substance, law enforcement so that with the existence of this legality aspect, it will provide legal protection for investors. following the functions of government to regulate and protect, licenses aim to restrict the freedom of individual activity. privileges limit should not abandon the rule of law is the principle of legality and is therefore authorized to grant permission must refer to the legislation. 28siagian, sondang p. (2005). administrasi pembangunan: konsep, dimensi, dan strateginya. jakarta: bumi aksara, p. 138. 29vide regulations of the capital investment coordinating board of the republic of indonesia number 6 of 2018 concerning guidelines and procedures for licensing and investment facilities, and regulations of the capital investment coordinating board of the republic of indonesia number 7 of 2018 concerning guidelines and procedures for controlling the implementation of investment. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia | 129 the authority to grant license according to administrative law consists of, the attribution authority is the authority attached to a position because of the law, then the delegation authority is the delegated authority so that it can be said that the attribution and delegation authority is the authority to control whether a particular body is authorized or not.30 a license must fulfill the validity of the procedure which can be seen from the administrative requirements, legal requirements, technical requirements, time requirements, costs and organization. substantially permission means a prohibition, order, approval or acquisition. this relates to the juridical aspects of the licensing system. for the most accurate use of a license must be carried out supervision and sanctioning the abuse of the licensing function. supervision can be carried out in two forms which are preventive and repressive. preventive supervision of the government can do in the form of observations, inspections and other forms whereas repressive supervision may in the form of administrative sanction in the form of cancellation, revocation of licenses, restitution and compensation, and criminal sanctions such as imprisonment and criminal fines. based on this interpretation, a license is closely related to the purpose, legitimacy of authority, procedures, substance and law enforcement. efficiency and certainty to process a license, legal certainty over how to manage and at the same time own land and other sizes, and of course require certainty of the availability of infrastructure and have not been maximally carried out by local governments, in particular the north sulawesi province in implementing the nawacita program, especially the third point, which emphasizes development starting from the periphery by strengthening regions and villages within the framework of the unitary state of the republic of indonesia. the complexity of these problems will lead to costs that are costly to investors and, if not resolved the government would lose its momentum. specifically, in the legal sector of local governments should no longer be preoccupied with handling issues that are of low relevance to the main objectives. actually, the purpose of granting autonomy to local governments is to improve services and better community welfare, development of democratic life, better and more equitable distribution of public services, respect for local culture and pay attention to the potential and diversity of the region.31 a focus on supervising and running the wheels of government is really needed when confronting and solving problems with nuances of uncertainty that boils down to the difficulty of creating macro stability. there are a lot of laws in indonesia overlap so need to reform the rules so as not to confuse investors, examples of some of the regulations are not in sync with the 30 hadjon, philipus m., et al. (eds.). (2008). pengantar hukum administrasi indonesia. yogyakarta: ugm press, p. 135. 31sarundajang, sinyo harry. (2005). babak baru sistem pemerintahan daerah. jakarta: kata hasta pustaka, p. 80. volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia 130 | regulation of supporters among others broking, the law of the republic of indonesia number 5 of 1960 on basic regulation principal agraria is called a 30-year term and can be extended for a maximum of 20 years, but law number 25 of 2007 concerning investment is disclosed that the right to build can be granted up to 80 years by being granted and extended in advance 50 years and renewed for 30 years. these different rules create confusion when employers consult with the national land agency when the right to build will expire. in addition to environmental licenses, it is stated in the republic of indonesia government regulation no. 142 of 2015 concerning industrial estates that industrial companies in industrial estates are exempted from licensing concerning disturbance, environment, location, place of business, allotment of land use, approval of land plan and analysis traffic impact. however, the reality of the environmental license must still be owned by business actors who refer to the law of the republic of indonesia number 32 of 2009 concerning environmental protection and management and the government of the republic of indonesia number 27 of 2012 concerning environmental permits. inequality between regulations on environmental licenses is an obstacle to investment activities. government regulation of the republic of indonesia number 142 of 2015 cannot be implemented because the local government and investors are afraid of being subjected to criminal threats and fines as referred to in the law of the republic of indonesia number 32 of 2009. other rules that overlap and make it difficult for the business world to develop. whereas regularity will only exist if there is certainty and legal certainty must be made.32 investors hope that the government can improve the ranking of ease of doing business, so that such rules can be sought by the government so that entrepreneurs and investors have certainty and a sense of security. increased investment in the country depends also on the availability of manpower, therefore it is necessary to propose that local governments can spur improvement in the quality of the workforce with a dual system of education, which prioritizes the practice of the world of work. the regional government in the border region must allocate a large education fund to be used to develop a dual system through collaboration between schools, companies and the government to produce a workforce that is reliable and ready to use. apart from the complexity of the issue of regional autonomy, in terms of investment law efforts to improve the investment climate are quite important steps in building market confidence because it is realized that indonesia is included in the high country risk category for the entry of foreign investment flows. the government and business actors in the regions must realize the need to seek a conducive investment climate in the region to attract regional investment 32rasjidi, lili, & putra, i. b. wyasa. (2003). op. cit., p. 48. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia | 131 flows because if it is not realized then the existing investment has the opportunity to withdraw and relocate to countries that promise investment security. if there are investors who enter certain regions, it is not certain that they will dare to invest directly in the long term with the consideration that at any time undesirable things are related to country risk, relocation is easy to do and investment risk can be minimized.33 many large investments are threatened due to lack of legal certainty. the targeted investment value will not be achieved if the certainty of the contract and the legal basis is not implemented properly. investment policies made by the central government are often hampered by regional autonomy through regional regulations and other bureaucracies. many perda is inconsistent with higher regulations because regional policies often hamper investment inflows. local regulations that do not refer to higher regulations can cause disharmony in legal products, but national and global factors such as political stability, national security and resilience, rule of law and consistency of local government programs are determinants.34 this is due to the implementation of regional autonomy which is not conducive and efficient enough. the obstacles that are often experienced by investors include policy inconsistencies, complicated and expensive bureaucracy, regional policy uncertainty, many levies including illegal levies, communal conflicts to land disputes. to overcome economic problems, especially in investing, the government is taking steps to encourage the competitiveness of national industries, through deregulation, bureaucratization, and law enforcement and business certainty. there are ways in creating how important it is to provide legal certainty so that the desire to invest in indonesia can be realized, especially in border areas, which is to reorganize the course of the organization and policies that impede legal certainty, to break the chain that has no effectiveness in launching and facilitating investment, the duration of the implementation of the licensing administration system is accelerated so as to produce an effective and efficient settlement pattern, ensuring all functions involved in it have the intensity and capacity in favor of economic development in the perspective of regional autonomy in developing border areas based on people’s welfare, in addition to that department which has a low scope of endeavor so as not to hold authority in handling licenses so as to make it easier for investors to invest. the importance of this method is to strengthen everything related to the ease of investing in indonesia, especially in border areas in north sulawesi, which has not been very convincing, one of which is the availability of adequate infrastructure. obstacles like this that must be resolved by the government, especially local governments. as 33rais, syaukani hasan. (2003). welcome investor: di era otonomi daerah. jakarta: nuansa madani, p. 51 – 52. 34ibid. volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia 132 | an element of the nation in which related to development at this time feel that this situation must be changed as soon as possible, and need bureaucratic reform that aims to create a professional government bureaucracy with adaptive, integrated, high performance, clean and free from corruption, collusion and nepotism, able serving the public and based on the code of ethics of the state apparatus.35 the obstacles that result in the non-optimal functioning of the economy to run well at any scale must be pushed aside so that the wheels and economic policies can be sustainable. these barriers must be cut if the local government wishes to achieve economic growth in moderate numbers. in the future, after improvements are made, it is expected that our country’s economic forecasts can run faster. this can happen if bureaucratic reforms characterized by the realization of collision-free government, improved quality of public services and increased capacity and accountability of bureaucratic performance are achieved.36 no more threats are found that have the potential to disrupt economic policy so that it impacts on welfare so that by carrying out law enforcement and certainty in investing will produce a form of a resilient economy. exploring the existing economic potentials and the strong handling of the legal settlement will form a new economic cycle. economic turnover by prioritizing positive economic growth based on people’s welfare to drive the flow of goods and services and increase regional production which in turn was followed by an increase in various leading sectors of the border region in north sulawesi such as marine, agriculture, trade, tourism. in indonesia, domestic investors also need foreign investors, especially those related to the exploitation of natural resources which are often considered to conflict with national interests, whereas on the other hand, indonesia is in dire need of foreign investment to drive the economy, especially during the economic slowdown. over the years it has been proven that foreign investment in indonesia has succeeded in absorbing mass labour, increasing state revenues and human resource capabilities because there is a transfer of knowledge and technology that in many ways, foreign investment is not just investment/capital, but also the creation of value added to improving community welfare. on the contrary, the strong influence of public opinion and weak investor protection makes foreign investors reluctant to increase their investment, so that legal certainty and protection is needed for all parties, both society and the state and foreign investors so that the benefits can be felt by all parties. the study of the rules on investment needs to be reviewed and adjusted to the conditions and comprehensive evaluation so that foreign investment in indonesia wants to expand its business wing in the indonesian border region so that it can 35etzioni-halevy, eva. (2011). birokrasi & demokrasi: sebuah dilema politik. yogyakarta: total media, p. 109. 36ibid. https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia | 133 survive and obtain more benefits, while the national interest is more maintained and can be optimized. besides that, indonesia also needs to follow the trend of investment policies in the world, so that investment in the country can grow and develop quickly, if the policy framework in indonesia is far behind other places, it is difficult to expect investment to grow high. although in the current era of globalization, economies between countries are very open and interdependent, although several developing countries try to maintain their existence by protecting trade and industry, especially those closely related to the livelihoods of many people. conclusion legal protection in the context of investment law means providing legal protection to investors in carrying out their investment activities and providing legal certainty consistently. investment policies made by the central government are often hampered by regional autonomy because policies in the regions often hamper the entry of investment. this is due to the implementation of regional autonomy which is not conducive and efficient enough. barriers that are often experienced by investors, including inconsistency of policy, regional policy uncertainty, and land disputes. to solve the economic problems, especially in investment, the government has taken steps to boost the competitiveness of the national industry, through deregulation, de-bureaucratization, as well as law enforcement and business certainty. this requires steps that provide legal certainty so that the desire to invest in indonesia can be realized, especially in border areas, which is to reorganize the course of the organization and policies that impede certainty, break links that do not have the effectiveness in launching and facilitating investment, the importance of the stepping stone to do is to consolidate everything related to the ease of investing in the country can be resolved. investors themselves are aware that the investment climate in indonesia, especially in the border areas in north sulawesi has not been so convincing, one of which the availability of adequate infrastructure. concern and seriousness of local governments on development priorities in the border areas need to be improved by the provision of adequate infrastructures such as the security of legal certainty and legal protection of investors in encouraging activity. suggestions from this research are the need to reform the laws and regulations that govern regional regulations in north sulawesi related to investment management in border areas that can provide certainty and legal protection for investors. reference atmosudirdjo, s. prajudi. 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(1994). pentingnya asas-asas umum pemerintahan yang baik. in paulus effendi lotulung (ed.), asas-asas umum pemerintahan yang baik. bandung: pt. citra aditya bakti. kemitraan partnership. (2011). kebijakan pengelolaan kawasan perbatasan indonesia. in partnership policy paper no. 2/2011. jakarta: the partnership for governance reform. retrieved from http://www.kemitraan.or.id/policy-paper-no-22011 kebijakan-pengelolaan-kawasan-perbatasan/# kusumaatmadja, mochtar. (2002). konsep-konsep hukum dalam pembangunan (otje salman & eddy damian eds.). bandung: pt. alumni. kusumohamidjojo, budiono. (1999). ketertiban yang adil: problematik filsafat hukum. jakarta: grasindo. manan, bagir. (2001). menyongsong fajar otonomi daerah. yogyakarta: uii press. mardiasmo. (2004). otonomi dan manajemen keuangan daerah. yogyakarta: cv. andi offset. margono, sujud. (2008). hukum investasi asing indonesia. jakarta: novindo pustaka mandiri. law of the republic of indonesia number 5 of 1960 concerning basic rules on agrarian principles. state gazette of the republic of indonesia, number 104 of 1960. supplement to the state gazette of the republic of indonesia, number 2043. https://creativecommons.org/licenses/by-sa/4.0/ http://www.kemitraan.or.id/policy-paper-no-22011volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia | 135 law of the republic of indonesia number 25 of 2004 concerning national development planning system. state gazette of the republic of indonesia, number 104 of 2004. supplement to the state gazette of the republic of indonesia, number 4421. law of the republic of indonesia number 17 of 2007 concerning the national long-term development plan 2005 – 2025. state gazette of the republic of indonesia, number 33 of 2007. supplement to the state gazette of the republic of indonesia, number 4700. law of the republic of indonesia number 25 of 2007 concerning investment. state gazette of the republic of indonesia, number 67 of 2007. supplement to the state gazette of the republic of indonesia, number 4724. law of the republic of indonesia number 32 of 2009 concerning environmental protection and management. state gazette of the republic of indonesia, number 140 of 2009. supplement to the state gazette of the republic of indonesia, number 5059. rais, syaukani hasan. (2003). welcome investor: di era otonomi daerah. jakarta: nuansa madani. rasjidi, lili, & putra, i. b. wyasa. (2003). hukum sebagai suatu sistem. bandung: cv. mandar maju. regulation of the president of the republic of indonesia number 2 of 2015 concerning the national medium-term development plan 2015 – 2019. state gazette of the republic of indonesia, number 3 of 2015. regulations of the capital investment coordinating board of the republic of indonesia number 6 of 2018 concerning guidelines and procedures for licensing and investment facilities. state gazette of the republic of indonesia, number 934. regulations of the capital investment coordinating board of the republic of indonesia number 7 of 2018 concerning guidelines and procedures for controlling the implementation of investment. state gazette of the republic of indonesia, number 935. regulations of the government of the republic of indonesia number 27 of 2012 concerning industrial estate. state gazette of the republic of indonesia, number 47 of 2012. supplement to the state gazette of the republic of indonesia, number 5285. regulations of the government of the republic of indonesia number 142 of 2015 concerning industrial estate. state gazette of the republic of indonesia, number 365 of 2015. supplement to the state gazette of the republic of indonesia, number 5806. volume 2, issue 2, december 2019 : 118 136 problems of border regions in ensuring legal certainty invest in indonesia 136 | riyanto, astim. (2003). filsafat hukum. bandung: yapemdo. s., salim h., & sutrisno, budi. (2008). hukum investasi di indonesia. jakarta: pt. raja grafindo persada. saleh, ismail. (1990). peranan konglomerasi sebagai pelaku ekonomi dalam rangka pembangunan nasional. in pokok-pokok pikiran mengenai pengaturan persaingan sehat di dunia usaha (20 february ed.). jakarta: universitas tarumanagara. samidjo. (1986). ilmu negara. bandung: cv. armico. sarundajang, sinyo harry, & kuncoro, mudrajad. (2011). geostrategi: sulawesi utara menuju pintu gerbang indonesia di asia pasifik. jakarta: kata hasta pustaka. sarundajang, sinyo harry. (2005). babak baru sistem pemerintahan daerah. jakarta: kata hasta pustaka. sembiring, sentosa. (2010). hukum investasi: pembahasan dilengkapi dengan uu nomor 25 tahun 2007 tentang penanaman modal. bandung: nuansa aulia. siagian, sondang p. (2005). administrasi pembangunan: konsep, dimensi, dan strateginya. jakarta: bumi aksara. soekanto, soerjono. (1976). beberapa permasalahan hukum dalam kerangka pembangunan di indonesia. jakarta: yayasan penerbit universitas indonesia. sukirno, sadono. (2006). ekonomi pembangunan: proses, masalah, dan dasar kebijakan. jakarta: kencana prenada media group. syahrani, riduan. (2004). rangkuman intisari ilmu hukum. bandung: pt. citra aditya bakti. the 1945 constitution of the republic of indonesia. tjokroamidjojo, bintoro. (2000). good governance: paradigma baru manajemen pembangunan. jakarta: ui press. https://creativecommons.org/licenses/by-sa/4.0/ volume 3, issue 2, december 2020 : 147 166 this work is licensed under a creative commons attribution 4.0 international license. legal and problematic protection of social movements to the tau taa wana indigenous people muhammad hatta roma tampubolon faculty of law tadulako university, indonesia email: muhammad.hatta.roma@gmail.com abstract social movements of the legal community of tau taa wana custom is a struggle to release threats and structural shackles and want recognition of customary (communal) rights that they deserve. this study aims to analyze and explain the factors that led to the birth of the tau taa wana indigenous peoples' social movements. the research design is descriptive qualitative with a case study approach. research informants as many as 5 people selected purposively. data collected through observation, in-depth interviews and literature study. the results showed that the social movement of the tau taa wana indigenous people was driven by three determinants namely, the threat of capitalist expansion through an expansion of oil palm plantations, the threat of loss of communal natural resources due to oil palm expansion, the creation of solidarity in maintaining customary rights and local wisdom. it was concluded that tau taa wana customary law community social movements are caused by policy imbalances, weak state protection functions and the lack of state recognition of the existence of tau taa wana indigenous peoples. keywords: social movements; indigenous people; tau taa wana. date of submission: july 24, 2020 date of publication: october 29, 2020 doi: http://dx.doi.org/10.33096/substantivejustice.v3i2.77 introduction social movements are a history of human civilization from time to time. in indonesia, social movements are a social reality that can be found today, especially in social groups that demand the realization of justice and social welfare in democratic life. it has been realized that the journey of democracy in this nation has been littered with various abuses of power to the denial and defamation of human rights which are often experienced by groups of people who do not have political power and means of control. communities without power and control lately even in the future have the opportunity to create a social phenomenon through the actions of social movements to find the true meaning of civilization (intrinsic), especially social movements of indigenous https://creativecommons.org/licenses/by-sa/4.0/ mailto:muhammad.hatta.roma@gmail.com http://dx.doi.org/10.33096/substantivejustice.v3i2.77 volume 3, issue 2, december 2020 : 147 – 166 148 | legal and problematic protection people/communities. although social movements in the country are not dominated by indigenous and tribal peoples,1 these movements increasingly exist when indigenous and tribal peoples experience structural threats and tension. social movements can arise driven by four determinants, namely: (1) the occurrence of social alienation; (2) the occurrence of individual anomalies; (3) weak and paralyzed social control mechanisms; and (4) the occurrence of stress and turbulence of social values. therefore, social movements can occur in any community, including indigenous people.2 the protagonist in the indonesian indigenous movement is the alliance of indigenous peoples of the archipelago (aliansi masyarakat adat nusantara, henceforth aman). aman was established in 1999 in jakarta as an umbrella network organization for indonesia’s indigenous adat communities. although the word ‘adat’ has many meanings in indonesian, it is generally used to refer to custom, traditions or local norms and morals.3 in recent years, the organization has grown extensively to become an important political player in the domain of rural and environmental justice activism.4 advocates of indigenous rights hold that there are 50-70 million indigenous people in indonesia, accounting for roughly 20 to 30 percent of the country’s population.5 as of 2017, aman has 2.304 member communities, reportedly comprising 17 million people.6 aman defines adat communities as communities who live on land that has been passed 1 the english term "indigenous" comes from the latin "indigenae" which is used to distinguish between people who are born in a certain place and those who come from other places (advenae). in political discourse and the human rights movement, indigenous people are commonly referred to as indigenous peoples. they are called indigenous because the roots of their lives have become an inseparable unity with the land and the area in which they inhabit. they are also called peoples in the sense that they are a unique community with their existence and identity that is continuously hereditary, connecting them with communities, tribes, or nations from their history. in m. hatta roma tampubolon, givu as criminal sanctions tau taa wana indigenous people and its relevance to the national criminal justice reform, (disertation, pdih, brawijaya university, malang, 2014). tampubolon, m., & roma, h. (2014). givu as criminal sanctions tau taa wana indigenous people and its relevance to the national criminal justice reform. jl pol'y & globalization, 23, 39. 2 situmorang, a. w. (2013). gerakan sosial: teori dan praktik. yogyakarta: pustaka pelajar., p. 40-41. 3 buana, a. p. (2018). hakikat dan eksistensi peradilan adat di sulawesi selatan. journal of indonesian adat law (jial), 2(1), 113-137. p. 114 4 avonius, l. (2009). indonesian adat communities: promises and challenges of. the politics of the periphery in indonesia: social and geographical perspectives, 219. p. 232 5 safitri, m. (2016). dividing the land: legal gaps in the recognition of customary land in indonesian forest areas. kasarinlan: philippine journal of third world studies, 30(2, 1), 31-48. 6 profile indigenous peoples alliance of the archipelago (aman) : indigenous peoples alliance of the archipelago (aman) is an independent social organization with the vision to realize a just and prosperous life for all indigenous peoples in indonesia.safe worked at the local, national, and international levels to represent and advocate for indigenous issues. we are composed of 2,373 indigenous communities in indonesia, amounting to approximately 17 million individual members. we occupy our traditional region for generations. indigenous peoples have sovereignty over land and natural resources, social and cultural life that is governed by customary law and traditional institutions that sustain their lives as indigenous communities. safe was formed in 1999 in accordance with the decision of the congress of the indigenous peoples of the first (kman i). on march 17, 1999, more than 400 leaders in the archipelago of indigenous peoples gathered at the hotel indonesia, jakarta. kman i discuss and find solutions to address the threat to the very existence of indigenous peoples, including the violation of human rights, customary land grabbing, abuse of culture, and policies that discriminate against indigenous peoples. this meeting is to consolidate indigenous movement for the first time. it was then that safe was established to implement and decisions of the congress and as a vehicle used by indigenous peoples to uphold customary rights and position itself as a major component in the life of the nation. since then, congress of indigenous people has been held three times, namely in 2003 in tanjung, north lombok, west nusa tenggara; in 2007 in pontianak, west kalimantan; and in 2012 in tobelo, north maluku. indigenous people's congress next scheduled in 2017., (http://www.aman.or.id/profile-kami/), accessed september, 01, 2019. http://www.aman.or.id/profile-kami/ volume 3, issue 2, december 2020 : 147 166 legal and problematic protection | 149 down from generation to generation. they have a territory and natural wealth. their social and cultural life is governed by customary law and customary institutions that have continuously sustained them as a community.7 this paper is a sociological exploration of a tau taa wana8 indigenous people social movement in north morowali district, central sulawesi, as a reflection of social reality on the lame state's steps in carrying out democracy as well as in the effort to achieve a sovereign, just and prosperous social life as life (democracy) ideal. in the history of civilization, the life of the tau taa wana indigenous people in the history of the struggle to defend communal rights from threats and shackles of structure and struggle to gain state recognition for the existence and unity of their customary forest territories. based on the provisions of article 18b paragraph (2) of the 1945 republic of indonesia state constitution, the state's recognition of the existence of customary law and its traditional rights, if it contains 4 conditions for the existence of customary law, namely:9 first, as long as it is still alive, in the sense that indigenous peoples are still able to maintain their existence and are not undermined by the effects of globalization, and family members remain bound in strong kinship ties, secondly, in accordance with the development of society, in the sense that the traditional provisions do not conflict with indonesian society, third, the traditional provision is a traditional practice which has been hereditary for generations and, fourth, it is regulated later in the law. previous research found that the struggle of the tau taa wana indigenous community in maintaining and recognizing communal rights began when morowali local regulation number 13 of 2012 concerning recognition and protection of the wana tribal customary law community could not be applied consistently by the local government, until finally, a new autonomous region was split, namely north morowali with the consequence of the indigenous tau taa wana administrative region being settled in the north morowali district. however, the struggle was then pursued through proposing the determination of the customary territorial boundaries of the north morowali regional 7 fay, c., denduangrudee, h. m. s., mccarthy, j. f., & robinson, k. (2016). emerging options for the recognition and protection of indigenous community rights in indonesia. land and development in indonesia: searching for the people’s sovereignty, 91-112. p. 101 8 communities that live in a particular geographical area whose unity as a community is influenced primarily by its history, its mode of production, its value and legal systems, and its social and political systems. see emil ola kleden, indigenous people and the dream of recognition, a reflection, in bosko, r. e. (2006). rights of indigenous peoples in the context of natural resource management. jakarta: elsam publisher. p. 193. in also tampubolon, op.cit., 132. see also, tampubolon, m., & roma, h. (2014). givu as criminal sanctions tau taa wana indigenous people and its relevance to the national criminal justice reform. jl pol'y & globalization, 23, 39. https://iiste.org/journals/index.php/jlpg/article/view/11613/11956 (accessed september 01, 2019). 9 butarbutar, e. n. (2019). perlindungan hukum terhadap prinsip dalihan natolu sebagai hak konstitusional masyarakat adat batak toba. jurnal konstitusi, 16(3), 488-509. p.499 https://iiste.org/journals/index.php/jlpg/article/view/11613/11956 volume 3, issue 2, december 2020 : 147 – 166 150 | legal and problematic protection government in 2013 and then gained recognition at the end of 2016.10 likewise, the struggle of the indigenous people of tau taa wana in tojo una-una district to gain recognition and protection11 still faces obstacles because of rejection from the central sulawesi provincial government without rational reasons.12 in addition, capitalist expansion through the expansion of oil palm in north morowali which has entered the tau taa wana customary forest area is a serious threat to them. this problem is accompanied by the emergence of other problems both the seizure of customary forest management rights to the threat of environmental damage in the form of deforestation by the capitalists (capitalism). the presence of capitalism is an anomaly in human civilization, because all relations will be replaced by economic relations.13 the misery experienced by the community (small) is caused by the closure and conversion of land for capitalist interests and benefits carried out in any way. struggles over land are often framed in terms of ethnicity and indigenous identity. local people may legitimize their counter-claims in various ways – in terms of the human rights obligations of the state,14 citizenship rights,15 or through invocation of religious norms and values.16 a particularly common strategy, however, is the deployment of indigeneity. in a general sense, the term refers to self-identified, culturally distinct and politically non 10 silo, towards recognition of customary forest of wana posangke (silo magazine ed. 69, the red and white foundation palu, september-oktober 2016). https://www.ymp.or.id/silo-69-menuju-pengakuanhutan-adat-wana-posangke/, (accessed september 27, 2019). 11 in the national context, the recognition of the existence of indigenous peoples, especially juridical recognition is inseparable from the existing political dynamics, both in the context of national politics, culture and development politics in general. therefore, some laws and regulations that are issued sometimes show unclear recognition, or even to the extent of denial of the existence of indigenous and tribal peoples. for example, regarding the term used, before the term "indigenous and tribal peoples" was socialized in indonesia in 1993 by a group of people who called themselves the indigenous peoples rights advocacy network (japhama) consisting of indigenous leaders, academics and ngo activists. in tana toraja, various terms would have been known to identify groups of people who are considered to have different systems from the community in general (modern society) such as minority tribes, indigenous tribes, indigenous people, native people, even the term which shows the impression of distortion and bias of various interests and ideologies also surfacing such as mountain people or forest people. therefore, at the meeting, it was agreed that the appropriate term for translating "indigenous peoples: in the context of indonesia is 'indigenous peoples', meaning that when we talk about the rights of indigenous and tribal peoples in indonesia, the reference is the rights of indigenous people which applies universally. in tampubolon, m., & roma, h. (2015). dynamics of legal recognition in indigenous peoples under law of forestry construction. jl pol'y & globalization, 44, 147. 12 andika dhika, masyarakat adat tau taa wana menanti perda perlindungan, mongabay, situs berita lingkungan, https://www.mongabay.co.id/2016/06/26/masyarakat-adat-tau-taa-wana-menanti-perdaperlindungan/ (accessed september 27, 2019). 13 polanyi, k. (2003). transformasi besar: asal-usul politik dan ekonomi zaman sekarang. pustaka pelajar. p.76. 14 alagappa, m. (2004). civil society and political change in asia: expanding and contracting democratic space. stanford university press. p. 66 15 johnson, c., & forsyth, t. (2002). in the eyes of the state: negotiating a “rights-based approach” to forest conservation in thailand. world development, 30(9), 1591-1605. p. 1601 16 schmink, m. (1982). land conflicts in amazonia in economic and ecological processes in society and culture. american ethnologist. a journal of american anthropological association durham, n. c, 9(2), 341357. p. 345 https://anthrosource.onlinelibrary.wiley.com/doi/abs/10.1525/ae.1982.9.2.02a00080),(https://rdcu.be/b1nk9) (accessed september 27, 2019) see also tyson, a. d. (2010). decentralization and adat revivalism in indonesia: the politics of becoming indigenous. routledge. https://www.ymp.or.id/silo-69-menuju-pengakuan-hutan-adat-wana-posangke/ https://www.ymp.or.id/silo-69-menuju-pengakuan-hutan-adat-wana-posangke/ https://www.mongabay.co.id/2016/06/26/masyarakat-adat-tau-taa-wana-menanti-perda-perlindungan/ https://www.mongabay.co.id/2016/06/26/masyarakat-adat-tau-taa-wana-menanti-perda-perlindungan/ https://anthrosource.onlinelibrary.wiley.com/doi/abs/10.1525/ae.1982.9.2.02a00080),(https:/rdcu.be/b1nk9) volume 3, issue 2, december 2020 : 147 166 legal and problematic protection | 151 dominant communities with longstanding ties to a bounded territory.17 indigeneity has become a key term in local as well as international debates on land rights. it is often invoked to defend the rights of marginalized groups that have become the victims of state laws and policies on land and natural resource allocation.18 such capitalist-oriented,19 economic-capitalist expansion is very contrary to the social values held by the tau taa wana people that land and forests are not limited to material aspects but have a fundamental meaning that cannot be compared with the material. this situation then led to the birth of a social movement of the tau taa wana indigenous people until now. more than that, it must be recognized that the recognition and protection of indigenous peoples were not under the ideals of the nation in providing true "independence" to its people. this social movement carried out by indigenous and tribal peoples is proof that the state has not fully recognized the existence of indigenous and tribal peoples, especially in their customary law areas. thus it was concluded that the social movement of the tau taa wana indigenous people was an effort to release threats and structural shackles as well as the recognition of customary rights (communal) that they deservedly had. however, the object of study is not on the form of social movements but on the factors that encourage the social movements of the indigenous people of tau taa wana. this paper is very urgent in understanding and explaining the social movements of the indigenous people of tau taa wana who try to release structural shackles and obtain rights custom. for this reason, the general objective of this study is to explain and analyze the factors that have led to the formation of the tau taa wana traditional law community social movement. the research data obtained through interviews were processed qualitatively and produced descriptive data that were processed through analysis steps using the miles and huberman model consisting of three series of analysis processes, namely, data reduction, displaying data from reduction results, and drawing 17 although indigeneity as a legal concept has become grounded in international law, it remains a highly contested and challenged term with many meanings and interpretations. see for instance the work of kuper (2003); barnard (2006); fay and james (2008). saugestad, s. (2001). the inconvenient indigenous: remote area development in botswana, donor assistance and the first people of the kalahari. nordic africa institute.. see also li, t. (2007). adat in central sulawesi: contemporary deployments." dalam the revival of tradition in indonesian politics: the deployment of adat from colonialism to indigenism, jamie s. davidson and david henley (ed.). hal. 337-370. 18 holder, c. l., & corntassel, j. j. (2002). indigenous peoples and multicultural citizenship: bridging collective and individual rights. human rights quarterly, 24(1), 126-151. (http://web.uvic.ca/~clholder/pdfs/hrq_24_1.pdf), see also van der muur, w. (2018). forest conflicts and the informal nature of realizing indigenous land rights in indonesia. citizenship studies, 22(2), 160-174. p. 164 (https://www.tandfonline.com/doi/full/10.1080/ 13621025.2018.14454.95 19 expansion is expansion, namely 1 activity to enlarge/expand a business that is marked by the creation of new markets, expansion of facilities, recruitment of employees, and others; 2 increased economic activity and business growth. the economic and political system in which a country's trade and the industry are controlled by private owners for profit, not by the government. in other words, in the capitalist system, the government only acts as a supervisor. mcguigan, j. (2012). raymond williams on culture and society. key words: a journal of cultural materialism, (10), 40-54. p. 42 http://web.uvic.ca/~clholder/pdfs/hrq_24_1.pdf https://www.tandfonline.com/doi/full/10.1080/%2013621025.2018.14454.95 volume 3, issue 2, december 2020 : 147 – 166 152 | legal and problematic protection conclusions to strengthen data (bungin, 2012). the data validity was carried out through source triangulation. research methods the research used is juridical empirical research with a socio-legal approach that focuses on social and legal phenomena in the community in the indigenous people of tau taa wana posangke in north morowali regency, central sulawesi province. the research design is descriptive-analytic, which is a research method that aims to collect data from facts and describe them thoroughly and research according to the problems to be solved using a case study approach.20 the research informants were 5 people consisting of traditional institutions, community leaders, youth leaders. the informants were determined by purposive sampling based on the consideration of age, occupation, social status as well as the informant's knowledge and experience regarding the object of study being investigated. data collection was carried out qualitatively by relying on key instruments, namely researchers.21 apart from researchers, another instrument in the form of an interview guide was also used as a guide (framework) for collecting interview data. technically, research data is collected through participatory observation methods, in-depth interviews, and literature studies as an effort to deepen the factors being studied. the research data obtained through interviews were processed qualitatively and produced descriptive data that were processed through analysis steps using the miles and huberman model consisting of three series of analysis processes, namely, data reduction, displaying data from reduction results, and drawing conclusions to strengthen data.22 the data validity was carried out through source triangulation. analysis and discussion a. threat of capitalist expansion social change is marked by the development in various sectors of human life. social change exists to answer the challenges of the times that every time there is always change and change is something that is eternal. even though indonesia has adopted a regional autonomy system in which there are three sets of elements that make a social change through the development of autonomous regions, namely government, society (civil society) and the private sector, it must be admitted that this model has not been fully successfully developed ideally in several regions, especially in central sulawesi. regional autonomy as an instrument of development actually shows a lot of inequality, especially when regional policies cannot be applied with the principles of 20 creswell, j. w. (2003). research design: qualitative. quantitative, and mixed methods., p. 11. 21 bungin b. (2008). metodologi penelitian kualitatif: aktualisasi metodologis ke arah ragam varian kontemporer. jakarta: rajawali pers. p. 12 22 bungin b. (2012). analisi data penelitian kualitatif: memahami filosofis dan metodologis ke arah penguasaan model aplikasi. jakarta: rajawali pers. p. 17 volume 3, issue 2, december 2020 : 147 166 legal and problematic protection | 153 justice and shared prosperity. like the face of regional autonomy in central sulawesi which still shows anomalies of development, especially when the capitalists23 as the private sector are able to control and become the "power" over regional development. this simple logic opens eyes that how capitalist expansion through the expansion of oil palm production land in north morowali is increasingly showing a social inequality that cannot be understood. the expansion of the oil palm area that has entered the customary forest area of the indigenous law community of taa wana sociologically makes them feel disturbed and considers it a big threat. moreover, the capitalist principle of mastery of matter and profit-making as much as possible is considered by the customary law community of taa wana to be very contrary to the legal values they profess. because, the expansion of oil palm land is considered to narrow their living space and seize the unity of customary forest areas. in terms of policy, the customary forest community of tau taa wana has been legalized in the regional policy sheet. in addition, the status of the customary forest community of tau taa wana has moved from state forest to customary forest, as stipulated in constitutional court decree no. 35 / puu-x / 2012. the implication of this policy means that the state has recognized the rights of the customary law community and the territorial integrity of the customary community, especially the customary forest area of the customary law community of taa wana so that it cannot be contested or even robbed by other parties. although the customary forest provisions of the tau taa wana indigenous people have been legally binding, the spirit of capitalism has not faded to try to make customary land into material production land that only provides a major advantage to the capitalists themselves. such conditions for the customary law community of taa wana become a threat and then lead to social movements to maintain the sovereignty and communal rights that have been owned for a long time and escape from suffering. the suffering that has been experienced by the tau taa wana indigenous people from time to time requires great effort in order to obtain justice and protection of a country that is entitled to prosperity without capitalist intervention. although morowali district 23 capitalism or capital is an economic system in which trade, industry and means of production are controlled by private owners with the aim of gaining profits in a market economy. an economic system that gives everyone complete freedom to carry out economic activities such as producing goods, selling goods, distributing goods, and other economic activities for profit. "capitalism" oxford dictionaries. "capitalism an economic and political system in which a country's trade and industry are controlled by private owners for profit, rather than by the state." capital owners in doing their business try to achieve maximum profits. with this principle, the government cannot intervene in the market to obtain mutual benefits, but government intervention is carried out on a large scale for personal interests. "capitalism, as a mode of production, is an economic system of manufacture and exchange which is geared toward the production and sale of commodities within a market for profit, where the manufacture of commodities consists of the use of the formally free labor of workers in exchange for a wage to create commodities in which the manufacturer extracts surplus value from the labor of the workers in terms of the difference between the wages paid to the worker and the value of the commodity produced by him / her to generate that profit. jenks, c. (ed.). (1998). core sociological dichotomies. sage. p. 383 volume 3, issue 2, december 2020 : 147 – 166 154 | legal and problematic protection regulation no. 13 of 2012 is a form of recognition and protection of the tau taa wana indigenous peoples, but the state must reiterate the customary communal forest management rights because until now the customary law community of tau taa wana is still threatened by the expansion of capitalism. capitalist expansion which has been a frightening thing for the customary law community of tau taa wana is a project to expand oil palm plantations by a local company, pt. kurnia luwuk sejati (kls), is owned by a central sulawesi bourgeoisie, murad husain who has been expanding in the customary forest area of the tau taa wana customary community since 2007. in the oil palm expansion project, the company employs tau taa wana farmers in the process of breeding, clearing land until planting. various sources say that oil palm land owned by farmers from the tau taa wana indigenous community was obtained easily by means of a program of distributing basic needs to tau taa wana through collaboration between the company and the regional government. but in the end this was regretted by the indigenous law community of taa wana because they had worried about the future of their agricultural land which could be replaced by oil palm land. in addition, capitalist hegemony to acquire the land of tau taa wana farmers is done by utilizing village officials to persuade residents to sell land to the company for various reasons that are deliberately made rational. besides pt. kurnia luwuk sejati, there are other companies that have been working to expand the area around the customary forest community of the taa wana indigenous law in the north bungku region, such as pt. rajawali, with a planned land target of 15.000 ha., this indicates that the tau taa wana indigenous community is increasingly in a circle of regional capitalist expansion. moreover, many residents' lands have been sold to capital owners since the 90s, and even many members of the tau taa wana customary law community in the taronggo village area no longer have arable land to enable them to move to other places. finally, land which was once the main source of food production for meeting the basic needs of local communities, has now disappeared and replaced with land owned by capitalist palm oil production. b. the threat of loss of communal natural resources capitalist expansion through oil palm expansion seems to create a new problem that is feared by the indigenous law community of taa wana, namely the threat of loss of communal natural resources in the form of forests and customary land. why is that? because the tau taa wana customary law community does not merely treat customary land and forests as a material aspect or a mere means of production, but is interpreted and believed to be the source of life or the giver of life on earth. so whatever the consequences, customary lands and forests must be defended collectively. volume 3, issue 2, december 2020 : 147 166 legal and problematic protection | 155 the emergence of the problem of oil palm expansion in the lives of indigenous and tribal peoples tau taa wana causes them not only to feel the loss of forests and customary land, but also local wisdom that has a fundamental relationship between life between humans, jagar raya (nature) and god. because, during its civilization, the customary law community of tau taa wana is very compliant with customary law, especially in preserving customary forests as a source of communal governance, which is often proven by the implementation of traditional rituals. the purpose of traditional rituals is believed to be a form of repelling or avoidance of various natural disasters and epidemics and the preservation of customary forests as a source of livelihood on earth. local wisdom in maintaining the integrity of natural resources has received support from the local government with recognition through morowali district regulation no. 13 of 2012 concerning recognition and protection of wana tribal customary law communities, in article 4 paragraph (2) customary law as referred to in article 3 letter b is the order of life that is obeyed by wana tribal customary communities and is enforced by an adat institution. the hidden meaning contained in the policy implies that in the tau taa wana customary law system, the existence of customary social and cultural laws and institutions is functional towards the preservation, balance and harmony of social relations and relations with nature / the environment. local wisdom possessed is internalized, practiced and socialized everyday to form normative behavior patterns based on local contexts. especially concerning the relationship between humans and nature through the preservation of customary forests. that is why the expansion of oil palm lands is not only considered a real threat, it is also seen to be in conflict with the values of the local wisdom of the indigenous people of the taa wana community, which views that the sequence of humans, nature and god is something that must be balanced. damaging the forest and customary land is believed to damage the relations of the three that have been running in harmony. for capitalism that nature is a servant to their desires so that exploitation of nature is considered rational. as for the customary law community of taa wana, that they are servants for nature, so nature must be treated fairly and wisely. that is why the customary law community of taa wana treats nature (forests and land) simply. they are limited to hunting for food today and storing rice granaries for tomorrow. they do not think about conquering nature by means of destruction and exploitation, but rather manage nature by simply based on local wisdom. forests and land as a source of life, for the customary law community of taa wana is a mandate that must be maintained and believed. because, forests and land are the only natural resources they have. rice, wood, animal labor, and medicine, all come from volume 3, issue 2, december 2020 : 147 – 166 156 | legal and problematic protection the forest and the land so that it becomes a kind of spirit of the people of taa wana's customary law. so that the loss of natural resources, for the customary law community tau taa wana is the same as losing the source of life on earth. c. defend customary rights and local wisdom the customary law community of tau taa wana is an indigenous community that inhabits forest areas with a modest social system pattern, very close social relations and is bound by moral consensus sourced from local customs. the tau taa wana traditional law community social movement is a collective effort to defend customary rights, including defending natural resources in the form of forests and customary lands that are managed communally and hereditary. the inclusion of the oil palm plantation expansion project that has touched part of the customary forest lands of the tau taa wana indigenous community is a burden for them. so far, the tau taa wana traditional law community believes that the forest and customary land are hereditary. they also believe that customary forests are not state forests so that neither the state nor outsiders have the right to manage them, including investing their customary forests. the belief of the customary law community of tau taa wana has indeed been supported by state policy through constitutional court decree no. 35 / puu-x / 2012 which recognizes that customary forests are not state forests with the implication that the state returns customary forests to indigenous peoples. to understand the local claim-making, a particularly important achievement to address here is ruling 35 of 2012 of the indonesian constitutional court, which altered the legal regime on forestry. in 2012, aman and two of its member communities submitted a case before the court, arguing that the limited recognition in the 1999 basic forestry law of communal forests belonging to adat communities contradicted the indonesian constitution. the court agreed and decided on an alteration of the law. in may 2013, it ruled that communal adat forests would no longer be part of the state forest zone, but were to become collectively owned by adat communities.24 many considered the ruling a groundbreaking landmark for rural communities across the archipelago.25 rachman and 24 the state forest zone is state land administered as forest and comprises around 63 percent of indonesia’s landmass. three years after the ruling 35/2012 of the indonesian constitutional court, in december 2016, the ministry of forestry and environment for the first time formally recognized a number of adat forests. the initial transfer of land title however constituted only 13,000 hectares. in comparison, there were 450 serious agrarian conflicts nationwide in 2016 involving the contestation over almost 1.3 million hectares of state-owned land. the majority of this land, 600,000 hectares, concerned plantation concession land (mostly palm oil plantations) while another 400,000 hectares was disputed land administered as ‘state forest’. viewed from this perspective, 13,000 hectares constitutes a mere fraction of the land under dispute. some therefore wrote the land transfer off as merely a political gesture to boost the legitimacy of president joko widodo′s administration. for a critical account of the government’s ‘adat forest’ policy. agung hermansyah, ‘menindaklanjuti pengakuan hukum adat’ (geotimes, 29 juni 2017), (https://geotimes.co.id/opini/menindaklanjuti-pengakuan-hutan-adat), (accessed september 01, 2019) 25 butt, s. (2014). traditional land rights before the indonesian constitutional court 10/1 law. environment and developmental journal, (1). (http://www.lead-journal.org/content/14057.pdf), accessed september 10, 2019. https://geotimes.co.id/opini/menindaklanjuti-pengakuan-hutan-adat http://www.lead-journal.org/content/14057.pdf volume 3, issue 2, december 2020 : 147 166 legal and problematic protection | 157 siscawati believe that the ruling offered ‘an opportunity for changing the trajectory of systematic agrarian conflicts’.26 policy support was also obtained through the minister of environment and forestry regulation no. p. 32 / menlhk-setjen / 2015 concerning private forests. this means that state recognition of customary forests is real. even so, the threat of capitalist expansion through oil palm expansion apparently cannot be anticipated with the policy, because regional policies regarding investment permits are still very loose and regulations that do not favor indigenous peoples so that capitalists easily expand oil palm expansion in north morowali and several regions others in central sulawesi. when the customary forest area of the tau taa wana community has been controlled by capitalists, they are threatened with losing customary rights, namely the right to manage communal customary forests inherited from the past. the effort to be free from the expansion of oil palm land is due to the customary law community tau taa wana still feels that they "own" customary rights over the management of their customary forests. customary rights of the customary law community of tau taa wana can be seen from the size of the customary area. the customary area claimed by the taa wana indigenous law community is 30.566 ha,, where the customary area is dominated by 25.526 ha., (almost 84%) of customary forest, while the rest (16%) is the production land and settlement of the tau taa wana community. in addition, the customary land rights of the tau taa wana community can also be seen from the aspects of forest and communal land management for a long time. besides that, they have determined customary territories and settlements based on landscapes and local knowledge, starting from the streams rivers and mountain tops. these boundaries are the basis of tau taa wana's customary law community in the management of communal customary land where the concept of boundaries is closely related to the cosmological view of tau taa wana that the mountain is considered as the "body" and the river as the soul (spirit). however, these customary rights areas have also been claimed and determined by the government of the republic of indonesia to become morowali nature reserve area through minister of forestry decree no. 374/kpts-vii/1986 dated 24 november 1986, which was enough to shake the feelings of the tau taa wana people. d. defend customary rights and local wisdom the customary law community of tau taa wana is an indigenous community that inhabits forest areas with a modest social system pattern, very close social relations and is bound by moral consensus sourced from local customs. the tau taa wana traditional 26 rachman, n. f., & siscawati, m. (2016). forestry law, masyarakat adat and struggles for inclusive citizenship in indonesia. in routledge handbook of asian law. taylor and francis inc. volume 3, issue 2, december 2020 : 147 – 166 158 | legal and problematic protection law community social movement is a collective effort to defend customary rights, including defending natural resources in the form of forests and customary lands that are managed communally and hereditary. the inclusion of the oil palm plantation expansion project that has touched part of the customary forest lands of the tau taa wana indigenous community is a burden for them. so far, the tau taa wana traditional law community believes that the forest and customary land are hereditary. they also believe that customary forests are not state forests so that neither the state nor outsiders have the right to manage them, including investing their customary forests. the belief of the customary law community of tau taa wana has indeed been supported by state policy through constitutional court decree no. 35 / puu-x / 2012 which recognizes that customary forests are not state forests with the implication that the state returns customary forests to indigenous peoples. policy support was also obtained through the minister of environment and forestry regulation no. p. 32 / menlhk-setjen / 2015 concerning private forests. this means that state recognition of customary forests is real. even so, the threat of capitalist expansion through oil palm expansion apparently cannot be anticipated with the policy, because regional policies regarding investment permits are still very loose and regulations that do not favor indigenous peoples so that capitalists easily expand oil palm expansion in north morowali and several regions others in central sulawesi. when the customary forest area of the tau taa wana community has been controlled by capitalists, they are threatened with losing customary rights, namely the right to manage communal customary forests inherited from the past. the effort to be free from the expansion of oil palm land is due to the customary law community tau taa wana still feels that they "own" customary rights over the management of their customary forests. customary rights of the customary law community of tau taa wana can be seen from the size of the customary area. the customary area claimed by the taa wana indigenous law community is 30.566 ha., where the customary area is dominated by 25.526 ha., (almost 84%) of customary forest, while the rest (16%) is the production land and settlement of the tau taa wana community. in addition, the customary land rights of the tau taa wana community can also be seen from the aspects of forest and communal land management for a long time. besides that, they have determined customary territories and settlements based on landscapes and local knowledge, starting from the streams rivers and mountain tops. these boundaries are the basis of tau taa wana's customary law community in the management of communal customary land where the concept of boundaries is closely related to the cosmological view of tau taa wana that the mountain is considered as the volume 3, issue 2, december 2020 : 147 166 legal and problematic protection | 159 "body" and the river as the soul (spirit). however, these customary rights areas have also been claimed and determined by the government of the republic of indonesia to become morowali nature reserve area through minister of forestry decree no. 374 / kpts-vii / 1986 dated 24 november 1986, which was enough to shake the feelings of the tau taa wana people. other efforts undertaken by the tau taa wana indigenous community in maintaining customary rights are by practicing forest and land use patterns based wisely on their functions such as:27 a. kapali. namely forests that are not intended for cultivation or management. b. pompalivu. namely the forest is intended to look for production materials such as wood, rota, and food sources such as honey and game. c. pangale. namely the jungle that functioned as spring protection and soil fertility. d. navu. namely land for long-term crop fields and short-term crops. e. yopo. namely land in the form of shrubs that have been used for farming (former fields) f. lipu. that is the area for residential areas. in this way, the customary law community of tau taa wana believes that they have protected the universe, because the status or customary rights of pangale, kapali, pompalivu and yopo are shared rights (communal ownership),28 whereas individual rights only apply to navu and wakanavu. so that both communaland individual rights cannot be exchanged with others, either through sale and purchase transactions or gifts. discussion this research find that the social movement of the tau taa wana indigenous people is driven by three determinants, namely, (1) the threat of capitalist expansion through oil palm expansion; (2) the threat of loss of natural resources due to oil palm expansion on communal land; and (3) the presence of efforts to defend customary rights and local wisdom. the social movement of the tau taa wana indigenous people is a social 27 tampubolon, op.cit., 162-169. 28 ter haar in his book states that: the relationship between humans and the land, that is, the land where they live, the land that feeds them, the land where they are buried and which becomes the place of refuge for the spirits and the spirits of their ancestors, the land which permeates the faculties of life, including the lives of the people, and therefore depends on it, the relationship perceived and rooted in the realm of his mind can and should be considered as a legal relationship (rechtbetrekking) of humanity with the land. according to the legal dictionary, the customary rights are: the right of the customary law community to control the land and its contents in the area of its territory; a series of authority and obligations of a certain customary law community with a certain area, which is the environment and livelihood of its citizens for all time. customary rights (rechtbetrekkingrecht) are in the form of rights and obligations of the legal alliance as a whole over a certain area namely the area where they live. soetiknjo and ruwiastuti, said that customary rights came from the word region, which means the right to control customary land and for legal relations between the legal community and customary land, then hereinafter referred to as customary rights is the parent of management rights natural resources owned by the community. aminuddin, s. (2007). hukum pengadaan tanah untuk kepentingan umum. kreasi total media, yogyakarta. p. 32. robert k. yin.(2014). case study research design and methods . thousand oaks, ca: sage. 282 pages. canadian journal of program evaluation, 30(1). p. 35 – 36. volume 3, issue 2, december 2020 : 147 – 166 160 | legal and problematic protection transformation to restore the life to the true conditions of the confines of capitalism. the theory of transformation states that capitalism is the end of the history of human civilization as well as an historical anomaly. so the need for a transformation to replace exploitative capitalist patterns of interaction to be replaced by new patterns conducive to collective welfare.29 in the capitalist expansion through the oil palm expansion, this can only be done by capitalists to those who are considered weak, namely the tau taa wana people. sociologically, political elites and non-political elites who have power will always use power to achieve their goals at the expense of those who may obstruct their goals and are weak without power. power is mainly sourced from money and position. the social movement of the tau taa wana indigenous peopleis a response to the oppression of the capitalists. history records that the aristocrats, including the capital owners, would continue to try to reverse the social structure by breaking down the law and turning off local traditions through means of violence, pressure and intimidation. the owners of this capital have taken from what the weak have, including the seizure of communal land, customary land, breaking down houses, eliminating customs, or destroying what the weak group thinks belongs to and their inheritance. moreover, capitalism seeks to break the structure of small community (traditional) such as rural communities and even urban communities whose life forms must be destroyed to be replaced with new life in the name of change, progress and development, behind that, persecution continues. according to ali, (totua ada sumbol, 47 years old) indigenous stakeholders were shocked when suddenly bksda and forestry officials give directions that the forest they occupied was a restricted area (protected forest) and have been designated a morowali nature reserve area so the local community were being chased by forest police when they entered morowali nature reserve area. not only that the area of wana people became the target of mining and plantation entrepreneurs. the government arbitrarily provides oil palm land for entrepreneurs and the ministry of social affairs deals with social assistance within the framework of the core-plasma project. wana people are employed as farm laborers for oil palm nurseries, land clearing.30 there is nothing most complained by taa people, other than worrying about the future, especially the position of kapali (the grave of the elderly) around the oil palm land which is now claimed to be the land of entrepreneurs another complaint that people lose their subsistence agricultural land. the community is always worried if a mining or palm oil company will enter the land. moreover, lately, various kinds of seduction intensified 29 polanyi. k. (2003). op.cit.,156. 30 interview with ali (47 years), totua ada (indigenous male leaders), lipu sumbol, (lipu sumbol, north morowali district, central sulawesi province, 17 july 2019). volume 3, issue 2, december 2020 : 147 166 legal and problematic protection | 161 and even used village officials, to ask taa people to accept oil palm companies and want to release land, on the grounds of the plasma scheme. indo erna (53 years)31 shared the anxiety that was stored up and became a problem of their mysticism. motundafukotu, aku mamparas tanakuntau (we will kneel and block the land that will be taken by outsiders). not only that indo laku (55 years),32 said that “biayaka kami masiasi katuvu-tuvu,si’i tanah bue mami, tanah pumpalivu mami” (let us live in poverty, this is our ancestral land, our land where we seek). and firmly indo ere (49 years)33 said, kami tamangsarumaka janji-janji, anu to naparlu mami kasanang raya mami, pamporani mami sira tamomai damantato apa kami maro taba maroti. (right now we are not expecting promises, what we need now is calm, we hope they will no longer come to disturb because we will not remain silent. we will continue to maintain what is left at this time, we will refuse and fight). however, the capitalist ways to win the goal none other than the road of violence, destruction to intimidation. all that is done without thinking about humanity. until now the tradition of capitalist expansion can still be felt. the validity of regional autonomy actually does not bring fresh air to the small community (marginal), but it is profitable for the capitalists and the regional political elite. the characteristic of regional autonomy that combines elements of society, government and the private sector turns out to bring problems in the form of domination which is apparently owned by the private sector in regional development efforts. the customary law community of taa wana has felt the impact of the development model that benefits the private sector (capitalist). similar conditions have also been felt by the toili community farmers in luwukregency who experienced oppression and injustice from a regional development process through the expansion of oil palm by the private sector (capitalists). palm oil expansion project by pt. kurnia luwuk sejati in 2009, which had entered the community plantation area, finally caused a big resistance from farmers with the intention of reclaiming the rights that had been seized, and finally brought disaster to 23 local farmers who were imprisoned with an environmental activist.34 thus, capitalist expansion is a major threat to the harmonization of the lives of the indigenous and tribal peoples of taa wana and other communities that have similar conditions. meanwhile, the threat of losing communal-based natural resources for the indigenous and tribal people of tau taa wana is a factor that will determine their destiny 31 interview with indo erna (53 years), totua ada (indigenous female leaders), lipu sumbol, (lipu sumbol, north morowali district, central sulawesi province, 18 july 2019). 32 interview with indo laku (55 years), totua ada (indigenous female leaders), lipu sumbol, (lipu sumbol, north morowali district, central sulawesi province, 19 july 2019). 33 interview with indo ere (49 years), totua ada (indigenous female leaders), lipu sumbol, (lipu sumbol, north morowali district, central sulawesi province, 19 july 2019). 34 syafei m., expansion of oil palm fruit disastersketch of farmer's resistance to elimination and denial of the right to agrarian resources in the toili plain of banggai district (dokumen kertas posisi 09 yayasan tanah merdeka: palu 2010). volume 3, issue 2, december 2020 : 147 – 166 162 | legal and problematic protection in the future, especially if they do not receive structural support through consistent policies. looking at its history, the life of the tau taa wana indigenous people continues to be in the shadow of a massive structure that has not beencompletely impartial. this can be seen beginning when the minister of forestry decree no. 374 / kepts-vii / 1986 on 24 november 1986 concerning the establishment of the morowali nature reserve and the issuance of minister of forestry and plantation decree no. 757/kepts-ii / 1999 on 23 september 1999 concerning the appointment of 209.400 ha., of central sulawesi forest and waters, in which the decree had taken 25.526 ha., of the tau taa wana indigenous people forest area to be converted into a nature reserve. it means, that when the interests of the state speak through and move with policies, at that time the customary law community seems helpless when their customary lands are seized by the state. in addition, the expansion of capitalism that makes the tau taa wana indigenous people feel that losing their natural resources is deemed necessary to get state policy support for the protection of indigenous peoples, because between capitalist ideals and the ideals of indigenous and tribal peoples is quite the opposite. in society there are two opposing groups, which he calls dual society. the illustration of the dual movement is seen from the two principles of community regulation where, both of them set their own institutional goals, obtain support from certain social forces by using their own methods. the first is a movement with the principles of economic liberalism with the aim of building a private market, to free trade as a method. meanwhile, the only movement is a movement with the principle of social protection that aims to preserve people, nature and production arrangements, to find support from various associations that protect it. whereas the efforts of tau taa wana indigenous people in defending their customary rights and local wisdom are carried out with agricultural practices based on customary rules, including cosmically respecting customary forests and lands. the customary law community of tau taa wana believes that the mountain is the "body" and the river is the "soul" where the two elements must harmonize together. through this conception the tau taa wana indigenous people views land as a material-production element as well as a philosophical element considered to have a close relationship with humans. what is called land is a natural element that is closely intertwined with human institutions. traditionally, land and labor are an inseparable set of life and nature. thus, the land is closely related to the arrangement of kinship, neighborhood, expertise and belief in the communal circle of tribes, temples, villages, guilds and religion. at present the tau taa wana indigenous people are still seeking justice, protection and recognition of their existence and their customary territories which do not want to be intervened by the private sector, especially capitalists. the tau taa wana indigenous people is a part of this country that cannot be ignored and must receive positive volume 3, issue 2, december 2020 : 147 166 legal and problematic protection | 163 intervention, especially through policies that favor them. based on the description of the problem above, the importance of a social transformation to release the tau taa wana indigenous people and the capitalism confinement through several efforts including, returning costumery land and communal rights, the creation of equitable and without exploitative economic systems and relations and the government (state) must not be a steward of capitalists. conclusion the social movement of the tau taa wana indigenous people is caused by the imbalance of policies, the weak functioning of the state protection and the lack of state recognition of the existence of the tau taa wana indigenous people. this social movement is driven by external and internal factors. external factors are the threat of expansion of oil palm expansion by capitalists and the threat of loss of communal natural resources as a consequence of oil palm expansion. while internal factors are the growth of social solidarity in maintaining customary rights and local wisdom. it is recommended that the state's recognition and protection of the tau taa wana indigenous peoples be through regional and national policies. reference books alagappa, m. 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(1982). land conflicts in amazonia in economic and ecological processes in society and culture. american ethnologist. a journal of american anthropological association durham, n. c, 9(2), 341-357. s. butt, (2014). traditional land rights before the indonesian constitutional court. law, environment and development journal 10 (1). silo, (2016). towards recognition adat forest of wana posangke, silo magazine ed. 69, the red and white foundation palu, september oktober 2016. syafei m., (2010). expansion of oil palm fruit disastersketch of farmer's resistance to elimination and denial of the right to agrarian resources in the toili plain of banggai district, dokumen kertas posisi 09. yayasan tanah merdeka: palu. tampubolon, m. r, h. (2015). dynamics of legal recognition in indigenous peoples under law of forestry construction. jl pol'y & globalization, 44, 147. ______(2014). givu as criminal sanctions tau taa wana indigenous people and its relevance to the national criminal justice reform. jl pol'y & globalization, 23, 39. van der muur, w. (2018). forest conflicts and the informal nature of realizing indigenous land rights in indonesia. citizenship studies, 22(2), 160-174. website profil aliansi masyarakat adat nusantara (aman), http://www.aman.or.id/profile-kami/ last accessed september 01, 2019. disertation muhammad hatta roma tampubolon, (2014). givu as criminal sanctions tau taa wana indigenous people and its relevance to the national criminal justice reform, disertation, pdih, brawijaya university, malang. putusan pengadilan putusan mahkamah konstitusi republik indonesia nomor: 35/puu-x/2012 tentang hutan adat, yang dibacakan tanggal 16 juni 2013 volume 3, issue 2, december 2020 : 147 – 166 166 | legal and problematic protection peraturan perundang-undangan undang undang dasar negara republik indonesia tahun 1945 peraturan daerah kabupaten morowali nomor: 13 tahun 2012 tentang pengakuan dan perlindungan masyarakat hukum adat suku wana. peraturan menteri lingkungan hidup dan kehutanan republik indonesia nomor: p. 32/menlhk-setjen/2015 tentang hutan hak. keputusan menteri kehutanan republik indonesia nomor: 374/kepts-vii/1986 tanggal 24 november 1986 tentang penetapan cagar alam morowali. keputusan menteri kehutanan dan perkebunan republik indonesia nomor: 757/keptsii/1999 tanggal 23 september 1999 tentang penunjukkan kawasan hutan dan perairan sulawesi tengah seluas 209.400 ha volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 89 discourses of legal certainty in execution of administrative court decision nyoman martana; putu ade hariestha martana; kadek agus sudiarawan; bagus hermanto faculty of law udayana university email: degust.ugm@gmail.com abstract after the enactment of the law of government administration implied to regulation concerning the execution of the administrative court judgment. some pro-cons academic and practice discourses, arguing that the enactment of the law of government administration is the culminating point from the limited role of the administrative court on enforcing the administrative law and the argument that the regulation of the law of government administration contains various ambiguities norms in concern with implementation in the administrative procedural law system. this study aims to analyze and discuss concerning regulation of the provisions of the administrative court ruling execution, constrains in judgment execution and the legal certainty for the justice seekers in the provisions of the administrative court ruling execution after the enactment of the law of government administration. this paper is using normative and empirical method. the data that using consisted of primary and secondary data, were analyzed using qualitative methods. this study results is presented in a descriptive analysis paper. keywords:legal certainty; administrative court ruling; the law of administrative court; the law of government administration. introduction the provisions of article 24 paragraph (2) of the 1945 constitution of the republic of indonesia (hereinafter referred to as the 1945 constitution of the republic of indonesia) stipulates that judicial power is exercised by a supreme court and the judicial body underneath it within the general judiciary, the religious courts, the military courts, the administrative court, and by a constitutional court.1 this provision confirms that indonesia as a state of law as affirmed article 1 paragraph (3) of the 1945 constitution of the republic of indonesia.2 this means that the law must be a guideline, and must be obeyed and also upheld by citizens and the state. in addition, in the implementation of duties and authorities, the government must be guided by the law and be able to account for these tasks.3 1this provision was born after the reform and amendment of the 1945 constitution of the republic of indonesia between 1999 – 2002. vide jr., dominic j. nardi. (2018). can ngos change the constitution? civil society and the indonesian constitutional court. contemporary southeast asia, iseas – yusof ishak institute, 40(2), p. 253. doi: https://doi.org/10.1355/cs40-2d 2yusa, i gede, et al. (2016). hukum tata negara: pasca perubahan uud nri 1945. malang: setara press, p. 103. 3hayat, hayat. (2015). keadilan sebagai prinsip negara hukum: tinjauan teoritis dalam konsep demokrasi. padjadjaran: jurnal ilmu hukum (journal of law), universitas padjadjaran, 2(2), p. 388. doi: https://doi.org/10.22304/ pjih.v2n2.a10 https://creativecommons.org/licenses/by-sa/4.0/ mailto:degust.ugm@gmail.com volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 90 | the prerequisites of the indonesian rule of law are marked by the existence of an administrative or state administrative court, which is regulated through law no. 5 of 1986 jo. law no. 9 of 2004 jo. law no. 51 of 2009 concerning state administrative court (hereinafter referred to as state administrative court law) as the basis for the birth of administrative justice in the indonesian legal system. the existence of the state administrative court has urgency in relation to review the validity of government actions, namely the issuance of administrative decision.4 the administrative decision which is detrimental to a civil person or legal entity as the object of a lawsuit for a state administrative dispute in accordance with the absolute competence of the administrative court. this is potentially a preventive measure for government actions that have the potential to be incompatible with the laws and/or general principles of good governance. on the other hand, this can be interpreted as legal protection for the people. the provisions of article 47 of the administrative court law regulate the absolute competence of the administrative court to examine, decide upon and resolve state administrative disputes. the administrative dispute is a dispute arising in the field of state administration between a person or a legal entity with a state administrative agency or agency both at the center and in the region, as a result of the issuance of a state administration decision, including an employment dispute based on statutory regulations, as stipulated in article 1 number 4 of the administrative court law. whereas, the meaning of a administrative decision is a written stipulation issued by a state administration body or official containing legal action on state administration which is based on concrete, individual and final laws and regulations that lead to legal consequences for a person or legal entity civil law as referred to in the provisions of article 1 number 3 of the administrative court law. the existence of institutions with the authority to review the validity of government actions is becoming increasingly important in the welfare state. philosophically, the principle of the rule of law of indonesia is a dynamic rule of law state or the principle of the welfare state, which emphasizes in the welfare state,5 state interference is so extensive and profound through government actions in the life of the community in the context of service to the community to achieve the welfare of the people, as one of the country’s goals. the results of review of whether or not a governmental action in the form of a administrative court judgment is expected to be truly carried out in order to achieve 4bedner, adriaan. (2013). indonesian legal scholarship and jurisprudence as an obstacle for transplanting legal institutions. hague journal on the rule of law, cambridge university press, 5(2), pp. 260 – 261. doi: https:// doi.org/10.1017/s1876404512001145 5yusa, i gede, & hermanto, bagus. (2017). gagasan rancangan undang-undang lembaga kepresidenan: cerminan penegasan dan penguatan sistem presidensiil indonesia. jurnal legislasi indonesia, kementerian hukum dan hak azasi manusia ri, 14(3), p. 316. volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 91 openness and guarantee access to justice for the people.6 the emphasis is on realizing legal certainty to realize legal protection for the people from government actions in carrying out government functions.7 this also means that the administrative court for the community becomes an oversight body for government actions that always upholds the dignity and dignity of the people, and is always guided by the law.8 legal certainty is provided through the state administrative court which results in a court decision. in the case of granting a claim by the plaintiff by stating that the administrative decision of the defendant is declared invalid or invalid, a court decision can determine the obligations that must be carried out by the defendant namely the revocation of the relevant administrative decision, also the revocation accompanied by the issuance of a new state administrative decision, or issuance of state administrative decisions in the case of a lawsuit referring to article 3 of the administrative court law. this obligation can be accompanied by the imposition of compensation or rehabilitation. in this case, the decision of the administrative court can also give certain rights to the disputing parties, especially the plaintiff. the rights granted through a court decision should be enjoyed properly by the plaintiff through the court’s decision. in the administrative court, court decisions that are inkracht van gewisjde or have legal force still contain the nature of erga omnes namely the court’s decision applies to anyone and is not limited to the parties to the dispute.9 if the party who gets the right cannot properly enjoy his rights arising based on a court decision, it means that there has been a denial of justice, and a denial of legal certainty and legal protection of the people.10 decisions of the administrative court give rise to subjective rights on the one hand and on the other hand give rise to obligations for the other party to fulfil those subjective rights. for the sake of legal certainty, the rights arising as a result of the decision must be enjoyed by those entitled to through a predetermined mechanism.11 the way to obtain subjective rights arising from decisions or those contained in condemnatoir decisions is done through requests for implementation of decisions/execution of decisions. in the 6butt, simon. (2013). freedom of information law and its application in indonesia: a preliminary assessment. asian journal of comparative law, cambridge university press, 8(1), p. 12. doi: https://doi.org/10.1017/ s2194607800000879 7bunga, marten. (2018). tinjauan hukum terhadap kompetensi peradilan tata usaha negara dalam menyelesaikan sengketa tanah. gorontalo law review, universitas gorontalo, 1(1), p. 44. doi: https://doi. org/10.32662/golrev.v1i1.155 8sudarsono. (2011). pilihan hukum dalam penyelesaian sengketa tata usaha negara di pengadilan tata usaha negara. in i gede yusa (ed.), demokrasi, ham & konstitusi: perspektif negara – bangsa untuk menghadirkan keadilan; "kado untuk sang guru prof. dr. i dewa gede atmadja, s.h., m.s. malang: setara press, p. 241. 9yuslim. (2015). hukum acara peradilan tata usaha negara. jakarta: sinar grafika, pp. 5 – 6. 10effendi, maftuh. (2014). peradilan tata usaha negara indonesia suatu pemikiran ke arah perluasan kompetensi pasca amandemen kedua undang-undang peradilan tata usaha negara. jurnal hukum dan peradilan, mahkamah agung ri, 3(1), p. 26. doi: http://dx.doi.org/10.25216/jhp.3.1.2014.25-36 11suhariyanto, budi. (2019). urgensi kriminalisasi contempt of court untuk efektivitas pelaksanaan putusan peradilan tata usaha negara. jurnal konstitusi, mahkamah konstitusi ri, 16(1), p. 198. doi: https://doi. org/10.31078/jk16110 https://creativecommons.org/licenses/by-sa/4.0/ http://dx.doi.org/10.25216/jhp.3.1.2014.25-36 volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 92 | administrative court law, the implementation of decisions is regulated in the provisions of article 115 through article 119. the court’s ruling on the new administrative court has executive power and can be implemented/executed after obtaining permanent legal force.12 copies of decisions which are inkracht van gewisjde or have permanent legal force by the registrar of courts are delivered to the parties who are litigants. there is an obligation of the defendant to obey and implement the contents of the court’s decision in good faith and responsibility. if the defendant does not intend to implement the decision in the case of a decision concerning the obligation for the defendant to revoke the decision that has been issued, then within 4 (four) months after the court’s decision which is inkracht van gewisjde, the disputed decision has no legal force anymore, and no more execution attempts are needed. this is because by automatically passing the four month deadline, the disputed decision has no legal force. when the court ruling establishes an obligation for the defendant to revoke the administrative decision of the sued state and issue a new state administrative decision, and within a period of three months the defendant does not implement it, the plaintiff has the right to submit an application to the chair of the state administrative court to order the defendant party to carry out the court decision order. based on the request of the plaintiff, the chair of the court orders the defendant to carry out the order in the court’s decision. if the order in the verdict is not carried out, the defendant will be subject to a number of forced efforts in the form of payment of a sum of forced money and/or administrative sanctions.13 this is done or not depends on the defendant himself. if after the imposition of the forced attempt the verdict is not carried out also by the defendant, this will be announced through the local print media by the registrar. however, problems related to the non-implementation of court decisions that give certain rights to the plaintiff, opening opportunities for the defendant to be reluctant to implement the ruling and in the case of court decisions that are not possible to impose its implementation has implications for the absence of legal certainty. the birth of law no. 30 of 2014 concerning government administration (hereinafter referred to as the government administration law) then made various changes related to material laws and formal laws that apply to administrative law.14 the government administration law in addition to regulating material legal provisions, also provides formal legal arrangements that apply to the state administrative procedural system. in fact, this regulation has caused various confusions by various related parties (especially judges) in 12rumadan, ismail. (2012). problematika eksekusi putusan pengadilan tata usaha negara. jurnal hukum dan peradilan, mahkamah agung ri, 1(3), p. 438. doi: http://dx.doi.org/10.25216/jhp.1.3.2012.435-462 13lubna, lubna. (2015). upaya paksa pelaksanaan putusan pengadilan tata usaha negara dalam memberikan perlindungan hukum kepada masyarakat. jurnal ius: kajian hukum dan keadilan, universitas mataram, 3(1), pp. 166 – 167. doi: http://dx.doi.org/10.12345/ius.v3i7.205 14hadjon, philipus m. (2015). peradilan tata usaha negara dalam konteks undang-undang no. 30 th. 2014 tentang administrasi pemerintahan. jurnal hukum dan peradilan, mahkamah agung ri, 4(1), pp. 53 – 54. doi: http://dx.doi.org/10.25216/jhp.4.1.2015.51-64 http://dx.doi.org/10.25216/jhp.1.3.2012.435-462 http://dx.doi.org/10.12345/ius.v3i7.205 http://dx.doi.org/10.25216/jhp.4.1.2015.51-64 volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 93 the administration of administrative law in the administrative court. some forms of changes in the regulation of the government administration law are related to the regulation of the expansion of the meaning of state administrative decisions as objects of state administration disputes, arrangements related to positive fictitious decisions, the authority to adjudicate the abuse of authority by the government apparatus, arrangements related to administrative efforts, not governing the limitation of the amount of compensation and including special arrangements related to the implementation of the decision becomes an urgency to be comprehensively studied after the entry into force of the government administration law. based on the background description, this paper focuses on the subject of discussion, namely legal certainty in the execution of the decree of the administrative court both through the regulation of the administrative court law and the government administrative law, by raising several formulations of the problem namely how the execution provisions decisions, constraints faced, and how legal certainty for the community in the provisions of the execution of the decision of the administrative court after the enactment of the government administration law. the issue through legal research is an interesting and important issue in the legal system of the administrative court. the initiative raised the legal issues in this study which is intended as an effort to strengthen the state administrative procedural law system specifically to measure the strength of the execution of decisions and answer various confusion arising from all elements in the state administrative procedural law system specifically regarding the regulation of provisions related to the execution of the administrative court decision state enterprises are good at two different laws namely the administrative court law and the government administrative law. method this paper is based on a normative writing methodology format with the image of the law as a prescriptive discipline,15 focusing on the law as a norm16 or a norm system or hierarchy of laws and regulations17 and using empirical juridical writing methods. the merger of the two methods in order to complete the normative study through empirical research in the form of field research that is focused on the second problem, namely on the denpasar administrative court with non-probability sampling technique with a purposive type on the chairperson of denpasar administrative court and judge on the state administrative court 15choudhury, nafay. (2017). revisiting critical legal pluralism: normative contestations in the afghan courtroom. asian journal of law and society, cambridge university press, 4(1), p. 231. doi: https://doi.org/10.1017/ als.2017.2 16sonata, depri liber. (2014). metode penelitian hukum normatif dan empiris: karakteristik khas dari metode meneliti hukum. fiat justisia: jurnal ilmu hukum, universitas lampung, 8(1), pp. 24 – 25. doi: https://doi. org/10.25041/fiatjustisia.v8no1.283 17petroski, karen. (2013). legal fictions and the limits of legal language. international journal of law in context, cambridge university press, 9(4), p. 488. doi: https://doi.org/10.1017/s1744552313000268 https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 94 | denpasar through interviews. while the use of normative research with the study of legislation, literature and scientific journals and relevant official publications to answer the first and third problems. the results of this study are presented in a descriptive analytical scientific paper. analysis and discussion a. provisions for execution of judicial decisions in administrative court after the enactment of administrative court law 1. the procedure for execution of the administrative court decision based on the administrative court law in connection with the execution of the decision at the administrative court, it can be specifically explained that, in disputes that are examined, decided and tried by the administrative court, there are sometimes conditions where the related agency/official as the party being punished is reluctant to carry out the contents of the decision voluntarily. if the contents of the decision are not carried out voluntarily, then an execution must be carried out. in civil procedural law, the legal basis for the implementation of the decision (execution) is regulated in hir or rbg, namely article 195 to article 224 hir or article 206 to article 258 rbg; article 1033 rv, law no. 48 year 2009 concerning judicial power as well as various laws and regulations whose substance is more specific in nature, such as the civil code (concerning mortgages) and the mortgage rights act (concerning the execution of mortgage rights). both hir and rbg contain detailed provisions relating to the implementation of the decision (execution), from the beginning of the execution process until the end, that is, until the contents of the court’s decision are fulfilled. in articles 195 to article 224 of the hir or article 206 to article 258 of the rbg, provisions concerning warning/reprimand have been regulated; confiscation of execution; fulfillment of achievement: emptying the disputed object, submitting the disputed object, auction, payment; and hostage-taking (gijzeling). the legal basis for the implementation of court decisions (executions) in the state administrative court procedural law is regulated in article 115 through article 121 of the state administrative court law. provisions for the execution of decisions in the state administrative court procedural law are very few, even summary when compared with the provisions of the implementation of court rulings in civil procedural law. the law does not contain provisions regarding who ordered the execution, who led the execution and how to realize the contents of the decision which was inkracht van gewisjde.18 regarding the obligations mandated by the law to the chairperson 18soleh, mohammad afifudin. (2018). eksekusi terhadap putusan pengadilan tata usaha negara yang berkekuatan hukum tetap. mimbar keadilan, universitas 17 agustus 1945 surabaya, 11(1), pp. 23 – 24. doi: https://doi.org/10.30996/mk.v0i0.1604 volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 95 of the state administrative court, is the obligation to oversee the execution of the execution as regulated in article 119 of the administrative court law. that “coercion from public officials” to realize the contents of the decision there is no provision governing it, or it can be said there is a legal vacuum. it is also unclear who should order the “coercion”, and who is leading the “coercion”. article 116 paragraph (3) of the administrative court law regulates the word “ordered”, but in the context of the plaintiff’s request, which is stated when the defendant is determined to carry out the obligations as has been affirmed in the provisions of article 97 paragraph (9) letter b and letter c, also after 90 (ninety) working days the obligation is not carried out, the plaintiff submits an application to the head of the court in the form of an order from the court to the defendant to implement the court’s decision. the decision of a state administrative court that requires implementation is a condemnatory decision because it imposes an obligation to be carried out for the defeated state administration agency or officer. article 97 paragraph (8) of the administrative court act essentially states if the lawsuit is granted, while in the ruling it can determine the existence of obligations that must be carried out by the state administration agency or officer who issued the decision. this provision is the starting point for the issuance of obligations that must be done by the defendant. article 97 paragraph (9) of the state administrative court law determines the obligations imposed on the defendant, namely the revocation of the relevant decision; or revocation of the relevant decision and issuing a new decision; or issuance of decisions in the case of a lawsuit based on article 3. the three types of liabilities are basically two liabilities, namely revocation of decree and issuance of new decree. both of them constitute the substance of the basic decision which is condemnatoir. an additional condemnatory decision is the obligation to pay compensation as article 97 paragraph (10) of the administrative court law and the obligation regarding rehabilitation as article 97 paragraph (11) of the administrative court law. based on article 97 there are 5 (five) items in the content of the decision which is condemnatoir, namely three obligations which include the principal and two obligations which include additional proposals. if the obligation in the decision is not carried out by the defendant on a voluntary basis, it is possible to carry out an execution because the condemnatory decision has an executive power. a. revocation of administrative decision after the decision of the state administration court whose sentence is conditional is handed down, the defendant namely the state administration body or official is obliged to carry out the contents of the decision. in its implementation, the defendant may be reluctant to implement the contents of https://creativecommons.org/licenses/by-sa/4.0/ volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 96 | the decision voluntarily, so the implementation of the contents of the decision should be carried out by force through execution. related to the execution of the obligation to revoke a state administration decision, contained in article 97 paragraph (9) letter (a) of the administrative court law. the procedure for carrying out the execution of the decision containing the obligation to revoke this decision is regulated in article 116 paragraph (2) of the administrative court law, and after 60 (sixty) working days of the court’s decision the inkracht van gewisjde is received but by the defendant not carried out then the disputed decision has no legal force anymore. therefore, no other efforts are needed from the court, because the state administrative decision automatically loses its legal force which is commonly referred to as automatic execution.19 although not revoked, but the decision has no legal force anymore. regarding the revocation of the decision based on a court decision which is inkracht van gewisjde, for example, in the case of a plaintiff who faces a decision that is burdensome, for example related to the dismissal of an employee or an order to demolish a building. if the plaintiff’s lawsuit is granted by the court and the defendant is sentenced to revoke the said decision, the plaintiff will have obtained his rights only after the stipulated deadline, which is four months after the judicial decision which has permanent legal force is submitted to the defendant. b. issuance of new administrative decision the obligation to issue a new decree is regulated in two different articles, namely article 97 paragraph (9) letter b and article 97 paragraph (9) letter c of the administrative court law. there is a difference between the two articles, article 97 paragraph (9) letter b contains two obligations, namely revoking the plaintiff’s decision and issuing a new decision, and article 97 paragraph (9) letter c contains the obligation of the defendant to issue a decision if the lawsuit is based on article 3 paragraphs (1) through (3) of the administrative court law, which essentially states that if the defendant does not issue a decision, whereas it is the defendant’s obligation, then it is equated with the state administrative decree, both in terms of not issuance of the decision is requested over the time period or not specified time period but after four months from receipt of the request, the defendant is considered to have refused to issue the decision in question. 19sunge, maisara. (2009). efektivitas eksekusi putusan pengadilan tata usaha negara. jurnal inovasi, ikatan mahasiswa pascasarjana dan alumni gorontalo di bandung, 6(4), p. 81. volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 97 article 97 paragraph (9) letter c of the administrative court law regulates the issuance of negative fictitious state administrative decisions. in a case like this the defendant actually did nothing, but by law this situation is the same as the defendant issued a state administration decision containing the rejection. the reason is that the defendant as the public service provider is obliged to serve every community request that is his obligation, if neglected, even though he has not done anything, the law considers that the defendant has issued a decision to reject the request or a negative fiction.20 an applicant who feels aggrieved can file a lawsuit over the state of silence of the state administration or administrative officer, because the attitude of silence is equated with the decision to reject the petition. if the petition is filed according to procedure, the court can punish the defendant to issue the intended decision or petition, but with the government administration act there is a drastic change because the government administration act adopts a new principle that is the positive fictive principle as opposed to the fictitious principle negative. the execution of the decision on the inkracht van gewisjde which contains the obligation to issue state administrative decisions refers to the provisions of article 97 paragraphs (9) letters b and c and article 116 paragraphs (3) through paragraph (6) of the administrative court law. the provisions basically stipulate that in the event that the defendant is determined to have to carry out obligations regarding the revocation of the plaintiff’s decision and issue a new decision, and then after 90 (ninety) working days the obligation is not carried out, the plaintiff has the right to submit an application to the chair, the court has requested that the court order the defendant to carry out the decision, which is then by the chair of the court with a warrant ordering the defendant to implement the decision. if the defendant does not obey the chief justice’s order regarding the implementation of the decision on the defendant party, that is, the body or official concerned will be subject to payment of an amount of forced money and/ or administrative sanctions. in the event that the defendant is reluctant to also carry out, the defendant is announced through the local print media by the court clerk, and the head of the court is required to submit to the president to order the official to implement the decision and the representative body of the people in order to carry out the supervisory function. although in this provision, there are provisions on the amount of forced money, types of administrative sanctions, and the procedures for its implementation in article 116 paragraph (7) of the 20rodding, budiamin. (2017). keputusan fiktif negatif dan fiktif positif dalam peningkatan kualitas pelayanan publik. tanjungpura law journal, universitas tanjungpura, 1(1), p. 30. doi: http://dx.doi.org/10.26418/tlj.v1i1.18328 https://creativecommons.org/licenses/by-sa/4.0/ http://dx.doi.org/10.26418/tlj.v1i1.18328 volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 98 | administrative court law mandated to be regulated by law, but until now the mandate of the article has not been implemented. observing the provisions of the execution of court decisions as referred to in article 116 paragraph (3) to paragraph (6) of the administrative court law, basically the execution in the administrative court emphasizes self respect21 and legal awareness of the defendant’s party regarding the contents of the decision to carried out voluntarily without any coercive efforts (dwang middelen) that can be felt and imposed by the court against the defendant.22 when compared with the implementation of civil court executions whose decisions are condemnatoir (ordered, punish), then the difference is clearly seen. there are a number of differences in the execution of executions in civil and state administrative courts. the first difference is in the role of the chair of the court and the executing agency, and the second difference in the existence of sanctions. however, the execution process in the state administrative court law contains shortcomings, as the implication of legal normativisation in the act does not yet stipulate sanctions for non-compliance of the defendant who does not implement the administrative decision.23 another difference is that in the state administrative procedure law, there is no real execution as a civil court, but administrative execution, so that the defendant must implement the contents of the decision itself.24 regarding the role of the chairperson of the district court in the execution process, he played the role of “ordering” and “leading” the execution. in this function, the chairperson of the district court is in the execution process since there is an application for execution. the chair of the district court in ordering and leading the execution is based on the provisions in the hir/rbg and is assisted by institutions such as clerks and clerks. in the state administration procedural law, the chairperson of the court may order the execution in response to the claimant’s request based on article 116 paragraph (3) of the state administrative court law. based on this article the plaintiff won can request the court chairman to order the defendant to carry out the decision. according to himawan krisbiyantoro, a judge at the denpasar 21untoro, untoro. (2018). self-respect dan kesadaran hukum pejabat tata usaha negara menuju keadilan. pandecta: jurnal penelitian ilmu hukum (research law journal), universitas negeri semarang, 13(1), pp. 41 – 42. doi: https://doi.org/10.15294/pandecta.v13i1.7856 22gusman, delfina. (2010). efektifitas pelaksanaan upaya paksa putusan pengadilan tata usaha negara yang telah berkekuatan hukum tetap. masalah-masalah hukum, universitas diponegoro, 39(3), pp. 223 & 228. doi: https://doi.org/10.14710/mmh.39.3.2010.221-230 23harahap, zairin. (2009). hukum acara peradilan tata usaha negara. jakarta: pt. raja grafindo persada, pp. 153 – 154. 24yulius, yulius. (2018). diskursus lembaga eksekusi negara dalam penegakan hukum di indonesia. jurnal hukum peratun, mahkamah agung ri, 1(1), p. 15. volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 99 administrative court, that the position of chairperson of the administrative court is as a supervisor of executions and is passive, there needs to be initiative from the plaintiff to submit an application if the defendant does not want to implement the contents of the decision. the plaintiff’s initiative is needed because the court does not know whether the contents of the decision have been carried out or not. and according to gayuh rahantyo, a judge at the denpasar administrative court, if not based on the request of the plaintiff, the chairperson of the state administrative court will issue a decision addressed to the defendant’s superior so that the contents of the decision are carried out by the defendant. because the implementation of the state administrative court decision which is inkracht van gewisjde cannot be carried out by any institution other than the defendant, and the position of the chairperson of the court is only to oversee the implementation of the decision which has been inkracht and the absence of an executing support institution such as a bailiff in civil court, the execution is only based on self respect or personal awareness of the defendant. although forced efforts can be made in the form of payment of a sum of forced money and/or administrative sanctions, but as has been described many problems are associated with the implementation of the forced effort. the main problem is the unclear regulation regarding the nominal forced money, the types of administrative sanctions, and how the process of forced and paying payments and/or administrative sanctions are in fact mandated in the provisions of article 116 paragraph (7) of the state administrative court law. 2. state administrative court execution provisions according to government administrative law provisions for the execution of decisions on state administrative court are regulated in the administrative court law. in its development with a background to improve governance, also provide legal protection for citizens and government officials themselves, and to realize good governance, the government administration law was enacted.25 the government administration act is the legal basis for the administration of government in enhancing good governance and creating a better, transparent and efficient bureaucracy. in addition, the regulation of the government administration law as a material legal basis for testing the decisions or actions of government officials based on legislation and general principles of good governance, and shifting the old paradigm to the new paradigm is the paradigm of public service in 25mawardi, irvan. (2016). paradigma baru ptun: respon peradilan administrasi terhadap demokratisasi. yogyakarta: thafa media, p. 75. volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 100 | the administration of government that continues to develop along with openness broader access to public information, and emphasizes the responsibilities of governments oriented to public services. for this reason, the existence of the government administration law is placed as one of the pillars of bureaucratic reform and good governance, through arrangements for the implementation of government administration by government agencies and/or officials who are always guided by the general principles of good governance and provisions statutory regulations, as an embodiment of the principle of legality in the implementation of government administration. the academic paper on the government administration act outlines the urgency of the government administration act both philosophically, sociologically and juridical, which is clearly illustrated in the consideration of the government administration act which mentions several foundations for the formation of the government administration act including to encourage improvement in the quality of government administration, government bodies and/or officials carry out their authority must be guided by general principles of good governance and the applicable laws in the framework of guaranteeing legal protection, and based on considerations to manifest good governance and based on decisions and/or actions of government officials in relation to guarantees fulfilment of community legal protection. various basic justifications for the birth of the administrative court law do not necessarily make the birth of the administrative court law accepted directly by the public and related parties, both in a position to support the promulgation of the government administrative law because it is seen as a progressive step in reforming government administration however, there is a view that the promulgation of the government administration law also causes confusion and overlapping regulations, especially related to procedural law which must be applied and used as a guideline for judges in examining state administration disputes in administrative courts. the presence of the government administration law has brought a paradigm shift fundamentally with regard to the absolute competence of the administrative court, because the absolute competence of the administrative court which was originally limited, has been expanded. as for some changes that provide an expansion of competence in the case submission procedure in the administrative court. as for some forms of expansion of competencies regulated in the government administration law including26 in terms of expanding the meaning 26wairocana, i gusti ngurah, sudiarta, i ketut, layang, i wayan bela siki, sudiarawan, kadek agus, & pramana, i gede pasek. (2019). the expansion of administrative decision meaning based on government administration law: a dispute submission process approach. jurnal magister hukum udayana (udayana master law journal), universitas udayana, 8(1), pp. 20 – 26. doi: https://doi.org/10.24843/jmhu.2019.v08.i01.p02 volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 101 of the administrative decision; competence of the administrative court for review whether or not there is an element of abuse of authority at the stage of issuance of the administrative decision; also to decide on the object of a positive fictitious dispute; then level one in the case of prosecuting after administrative effort; and to try or grant a claim for compensation, without limitation of a certain amount. these various expansion of competencies that were arranged after the birth of the government administration act later created new problems and became a sensitive and very interesting issue for in-depth study. this arrangement of competency expansion is because it is thought to leave various theoretical problems that cause confusion in the technical implementation. in addition to regulating various extensions of state administrative court competencies, specifically the government administration act apparently also regulates certain matters whose substance is also regulated in the administrative court law. among them regarding the execution of the administrative court judgment. the execution was related to problems in the administration of government. where the problems in the administration of the government arise because the community members, individuals or civil legal entities,27 feel disadvantaged by the administrative decision which is in the provisions of the government administration law or referred to as the state administration decree or the government administration law. in this case, there is an expansion of the object of state administration dispute, because based on article 1 number (9) and article 53 paragraph (1) of the administrative court law, the object of the state administrative dispute is the administrative decision which must meet the criteria or elements of written form; issued by state administrative bodies or officials; contains legal actions in state administration; based on the applicable laws and regulations; concrete, individual and final; cause legal consequences for a person or legal entity. as for the regulation of the government administration law, the meaning of state administrative decisions in the form of formal actions in the form of written, or in the form of factual actions, although not written. the expansion of the object of the dispute is not only related to factual actions, in article 87 the law on government administration states that the meaning of a administrative decision must be interpreted inter alia as a written determination which also includes factual actions; also the decisions of bodies/institutions in the executive, legislative, judiciary and other state administration circles; based on statutory provisions and general principles of good governance; is final in a broader sense or meaning; 27astomo, putera. (2014). eksistensi peradilan administrasi dalam sistem negara hukum indonesia. masalah masalah hukum, universitas diponegoro, 43(3), p. 370. doi: https://doi.org/10.14710/mmh.43.3.2014.363-371 volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 102 | decisions that have the potential to lead to legal consequences/implications; and/ or decisions that apply to all members of the community.28 with the stipulation of the definition of state administrative decisions in article 87 of the government administration law which is included in the transitional provisions violates the rules in the formation of legislation as appendix ii number 135 of law no. 12 of 2011 concerning the formation of legislation and article 1 number 9 or article 87 of the administrative court law also contradicts article 24a paragraph (5) of the 1945 constitution of the republic of indonesia, because article 87 of the government administrative law has veiled changes to the provisions of article 1 number 9 of the administrative court law.29 in this case, there is also a shift in understanding from the object of state administration disputes namely the government administration decree and government administration acts based on the government administration act are also different from the meaning set out in the state administrative court law. in article 1 number 7 of the government administration law, the government administration decree is a written decree issued by a government agency and/ or officer in the administration of government. that the individual elements of the definition in the state administrative court law are eliminated and the implication is that the change of the plaintiff in a state administrative dispute, so that the plaintiff in a state administrative dispute is not only an individual/individual who is harmed but is a community member who is harmed by an administrative decree government and/or government administration acts. especially when related to the provisions of article 87 letter e of the government administration act, those who can be located as plaintiffs as parties in a state administration dispute are not only individuals who are addressed by a decision and are not limited to disadvantaged members of the community but extend to those citizens who have the potential to experiencing legal consequences due to the issuance of a decision. the expansion of the meaning of the administrative decision regulated in the provisions of article 87 of the transition of the law on government administration later gave rise to a new perspective on the state administrative procedure code and caused some confusion in its implementation.30 the expansion of the meaning of the administrative decision in the government administration act, according 28jiwantara, firzhal arzhi, adolf, huala, wibowo, gatot dwi hendro, & cahyowati, r. r. (2018). the extension of absolute competence of state administrative court after the enactment of act number 30 of 2014 on government administration in indonesia. journal of legal, ethical and regulatory issues, allied business academies, 21(1), pp. 3 – 4. 29wahyunadi, yodi martono. (2016). kompetensi absolut pengadilan tata usaha negara dalam konteks undang-undang nomor 30 tahun 2014 tentang administrasi pemerintahan. jurnal hukum dan peradilan, mahkamah agung ri, 5(1), p. 140. doi: http://dx.doi.org/10.25216/jhp.5.1.2016.135-154 30yulianto, eko. (2017). hukum acara dan praktek peradilan tata usaha negara. in pendidikan khusus profesi advokat. yogyakarta: indonesian advocates association (peradi) in collaboration with gadjah mada university. http://dx.doi.org/10.25216/jhp.5.1.2016.135-154 volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 103 to mariana ivan junias, judge at the denpasar state administrative court, is aimed at the context of opening the widest possible access to justice in exercising control over administrative decisions issued by government agencies/institutions or government officials. the expansion of the object of the dispute has not been accommodated through changes to the law in the field of state administrative justice or in the form of government regulations, because the expansion must be further explained in order to be able to adjust to the administration of government.31 in addition to regulating the aforementioned matters, the government administration act also regulates in summary terms the execution of a state administration court decision which is not carried out voluntarily by the defendant. institutions related to execution as explained earlier are also regulated in the administrative court law in the form of forced money (dwangsom) and administrative sanctions, as well as the provisions regarding announcements in print media and submissions to the president so that he wants to carry out the contents of the decision. provisions regarding executions in the government administration act are regulated in chapter xii regarding administrative sanctions. article related to the imposition of administrative sanctions related to the non-implementation of the contents of the said state administrative court decision is article 53 paragraph (6) of the government administrative law governing government agencies and/ or officers must determine the decree in the context of implementing the court’s decision no later than 5 (five) working days since the decision. this provision is related to the positive fictive principle adhered to by the government administration law which is indeed regulated in article 53 of the government administration act. it is an obligation for the agency and/or government official to determine and/or make a decision and/or action on the existence of a request from the public. such decision and/or action must be taken within the period stipulated in the legislation or if the time period is not regulated, referring to the provisions of article 53 paragraph (2) of the government administration law, no later than ten working days after the application is received in full. if there is no response beyond this time period, then based on a positive fictive principle, the request is considered granted. as a legal basis for requesting the defendant to establish/make a decision or action as requested, the community members have the right to appeal to the court to obtain a decision to accept the request. upon this application, the court must decide within a maximum period of twenty one working days after the date of the application to the court. if the court decides that the request is accepted then based on article 53 paragraph (6) of the government administration act, within a 31putrijanti, aju. (2015). kewenangan serta obyek sengketa di peradilan tata usaha negara setelah ada uu no. 30/2014 tentang administrasi pemerintahan. masalah-masalah hukum, universitas diponegoro, 44(4), p. 430. doi: https://doi.org/10.14710/mmh.44.4.2015.425-430 volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 104 | maximum of five working days after the decision is decided, the government must determine the decision to implement the court’s decision. in the government administration act for defendants who do not comply with the contents of court decisions in accordance with article 53 paragraph (6) are threatened with administrative sanctions. these administrative sanctions are regulated in article 80 paragraph (2) of the government administration act, where the threat of violation of article 53 paragraph (6) is moderate administrative sanctions. what is meant by moderate administrative sanctions as stipulated in article 81 paragraph (2) of the government administration act namely forced payment or compensation; temporary dismissal with or without obtaining office rights. these sanctions are sanctions that are basically imposed on state administrative officials or their positions, and are not directly related to government administrative decisions, so that there will be no change without the willingness of the body or institution authorized to issue the decision. 3. constraints in execution of judicial decisions in state administration after the entry into force of the law on government administration after the government administrative law came into force, the execution of the judicial decision on the state administration must have experienced obstacles. the obstacle faced is precisely because of the contradictions between the regulation of the government administration act and the state administrative court law. constraints faced are mainly related to legal certainty for the enactment of the positive fictive principle adhered to by the government administration act which is the opposite of the negative fictive principle adhered to by the state administrative court law. the negative fictitious principle is regulated in the provision of article 3 of the state administrative court law, which basically stipulates that if the defendant party, namely an agency/institution/government official, has the obligation to issue a decision and they will not issue the decision requested within the stipulated time period on related legislation or if not regulated, based on article 3 paragraph (3) the law is limited to only 4 (four) months, then the silence of the agency/institution/ officer is the same as a state administration decree. the state administration decree is defined as a decision on the rejection of the application submitted. basically, the negative fictive principle is based on the silent attitude of the official/agency/institution upon a request to issue a decision, but the official/agency/ institution does not issue the said decision. the official silence is then assumed that the official/agency/institution has issued a decision but in fact never existed so it is called a fictitious decision. that the official silence means that the request is rejected, so that it is negative, so that the negative fictive principle is born. volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 105 the negative fictive principle is the opposite of the positive fictive principle adhered to by the government administration act. this positive fictive principle in article 53 paragraphs (1) through (6) of the government administration act with provisions governing the time limit for obligations in the context of establishing/ making decisions or actions in accordance with the law, and in legislation does not determine the time limit for such obligations, the said government agency/ institution/official is obliged to stipulate/execute decisions and/or actions within a limit of up to ten working days after the application has been received in full by the agency/institution/official. if beyond this time, the agency and/or government official does not determine/make a decision or action, the request is deemed legally granted, and then the petitioner submits the application through the court in order to obtain a decision regarding receipt of the request. the court is required to decide on the application no later than twenty-one working days since the application was submitted, and it is stated that government agencies/institutions/ officials must determine the decision to implement the court’s decision no later than five working days after the court’s decision is determined. basically like a negative fictive principle, this positive fictive principle is also based on the attitude of silence from officials/institutions/state administrative bodies. the difference lies in the end result, where the positive fictive principle of silence actually means that the official accepts or grants the request in question. that the positive term in the positive fictive principle is defined as acceptance or granting of a request. the positive fictive principle then creates obstacles, how is its position with the negative fictive principle adhered to in the state administrative court law. as a solution, the legal preference used, namely the lex posterior derogate legi priori principle, applies to two equal rules and regulates the same problem to determine that the latest/newer rules outperform the older rules. in the process of drafting legislation (legislative drafting), generally when there is a new rule that is set and there are certain things in the previous regulations that are still valid or declared invalid will be regulated in the transitional rules of the new law. however, in the government administration law there are no rules that state explicitly that the article 3 of the state administrative court law is not related to a negative fictive administrative decision. the existence of two opposing principles, both the negative fictive principle and the positive fictive principle, of course also impact on the difference in the execution of the execution. if a lawsuit based on a negative fictive principle is granted, the court determines a decision containing the state administration agency or officer required to issue a state administration decree as requested by the plaintiff (deemed rejected on the basis of a negative fictive principle) as volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 106 | stipulated in article 97 paragraph (9) letter c of the law state administrative court law. if the state administrative agency or officials as referred to in article 116 paragraph (3) of the state administrative court law in 90 days are reluctant to obey the decision, the plaintiff pleads with the chair of the state administrative court so that the defendant is ordered to carry out the contents of the decision. this actually does not seem to have any urgency because the chairperson of the tun court is required to oversee the implementation of the tun court’s decision which has been inkracht. after the request is submitted, if the body/institution/ official still refuses to implement the contents of the new decision then he may be subject to payment of a sum of forced money and/or administrative sanctions. unlike the case with executions related to positive fictive principles. if the time limit provided under article 53 paragraph (1) and (2) of the government administration act to issue a state administration decision and/or certain actions has passed, the applicant submits an application and not a lawsuit to the administrative court. the application is to obtain a decision on receipt of the request (not to obtain the determination as is usual in the administrative court application). five days after the decision of the state administrative court, the administrative agency or officer is determined to determine the decision to implement the decision. only then will article 53 paragraph (6) of the government administration act not be implemented, in this case the agency/institution/official may be subjected to moderate administrative sanctions, in the form of forced payment of money or compensation or temporary dismissal with/without obtaining office rights. another obstacle in the execution of the judicial decision on state administration after the enactment of the government administration act is the absence of formal rules or procedural law governing the implementation of positive fictive principles. this has long been a concern of the judiciary, especially the judges at the state administrative court, apparently there has been no follow-up from the legislative body to draw up formal regulations related to this matter. the supreme court then took the initiative to resolve this problem by issuing a supreme court regulation no. 5 of 2015 concerning guidelines for procedures for obtaining a decision on acceptance of requests to obtain decisions and/or actions of government agencies or officers (perma no. 5/2015), issued as the embodiment of the authority of the state administrative court as regulated in article 53 of the government administration law, regarding the authority of the court to examine and decide upon the receipt of an application to obtain a decision and/or actions of government agencies/institutions/officers. that article 53 is the basis of implementing positive fictive principles in the state administrative court. because it was considered not to provide clear guidance for volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 107 judges in adjudicating cases related to the application of positive fictive principles, the perma no. 5 of 2015 was then replaced by supreme court regulation no. 8 of 2017 concerning guidelines for procedures to obtain decisions on acceptance of requests to obtain decisions and/or actions government agency or officials (regulation no. 8 of 2017). regarding the implementation of positive fictive principles, government bodies and/or officials who are reluctant or disobey the contents of decisions related to the implementation of the principle are threatened with moderate administrative sanctions. these sanctions are imposed on state administrative officials or their positions, not directly related to the administrative decisions themselves. so another obstacle is that there will be no change without the willingness of government agencies/institutions/officials to issue the decision. in addition, the imposition of sanctions is also unclear the legal basis that becomes the reference and there are no implementing regulations. so after the government administration act regarding the execution of the judicial ruling the state administration still faces many obstacles in its implementation so it does not reflect legal certainty. 4. legal certainty for the community in provisions for execution of judicial decisions in state administration after the entry into force of the government administration act in carrying out the execution process, of course the ultimate goal is for a court decision to be carried out. the implementation of the decision must of course have a legal basis regulating who is authorized to order and lead the execution, who carries out the execution, and how the execution procedure is carried out. the rule of law regarding executions in judicial bodies is very crucial. execution is a step that justitiabelen is expected to provide justice for a case that it faces. if we talk about law enforcement, the execution process is the last step especially if the judicial decision is not heeded. not implementing a court decision can occur in a state administration case. however, the decision of the state administrative court is very dependent on legal awareness or the willingness of the officials concerned to implement the contents of the decision32 or often referred to as execution based on self respect. the importance of execution in implementing decisions is related to one of law enforcement functions, namely legal certainty, as well as justice and expediency. legal certainty is a guarantee for those entitled according to law to be able to obtain their rights and that a decision can be implemented, because it is a 32rafiqi, rafiqi. (2017). kompetensi pengadilan tata usaha negara dalam menyelesaikan kasus tanah tentang hak pengelolaan. jppuma: jurnal ilmu pemerintahan dan sosial politik uma (journal of governance and political social uma), universitas medan area, 5(2), p. 112. doi: http://dx.doi.org/10.31289/jppuma.v5i2.1207 http://dx.doi.org/10.31289/jppuma.v5i2.1207 volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 108 | form of protection for the judiciary against arbitrary actions.33 the implementation of decisions is also related to the independence of the court, where the state must be able to force the government/executive to obey the contents of the court’s decision and that the court must be given the authority to ensure the implementation of the contents of the court’s decision.34 in a state administrative court decision based on the state administrative court law, if the lawsuit is granted, then in the ruling the ruling shall stipulate an obligation that must be carried out by a community/institution/administrative officer as contemplated in article 97 paragraph (8) to (11)) state administrative court law that revokes state administrative decree and issuance of state administrative decree, that these obligations may be accompanied by the imposition of compensation or rehabilitation. regarding the obligation of the defendant to revoke the state administration decision sued under article 97 paragraph (9) letter a of the state administrative court law, the state administrative court law has clearly determined the execution or implementation of the court’s decision. with the passage of four months after the decision of the court with legal force still sent to the defendant, so automatically the state administrative decision sued is not inkracht van gewisjde (automatic execution). in such circumstances, legal certainty for the community has been reflected, because clearly the interests of the people are guaranteed fulfilment through this automatic execution. regarding the obligation of the defendant to issue a state administration decision based on article 97 paragraph (9) letters b and c of the state administrative court law, it can only be done by the defendant himself. if there is no awareness and good intention from the agency/institution/official to implement the contents of the decision, so that the decision is carried out by the defendant, the chief justice of the court may order the defendant to implement the decision with permanent legal force, at the request of the plaintiff as article 116 paragraph (3) of the law state administrative court law. the chairman of the court’s order if related to article 116 paragraph (4) of the state administrative court law35 even more illustrates that the execution of execution can only be carried out by the 33wijayanta, tata. (2014). asas kepastian hukum, keadilan dan kemanfaatan dalam kaitannya dengan putusan kepailitan pengadilan niaga. jurnal dinamika hukum, universitas jenderal soedirman, 14(2), pp. 219 – 220. doi: http://dx.doi.org/10.20884/1.jdh.2014.14.2.291 34harjiyatni, francisca romana, & suswoto, suswoto. (2017). implikasi undang-undang nomor 30 tahun 2014 tentang administrasi pemerintahan terhadap fungsi peradilan tata usaha negara. jurnal hukum ius quia iustum, universitas islam indonesia yogyakarta, 24(4), p. 608. doi: https://doi.org/10.20885/iustum.vol24.iss4. art5 35simanjuntak, enrico. (2014). prospek ombudsman republik indonesia dalam rangka memperkuat pelaksanaan eksekusi putusan peradilan tata usaha negara. jurnal hukum dan peradilan, mahkamah agung ri, 3(2), pp. 168 – 169. doi: http://dx.doi.org/10.25216/jhp.3.2.2014.163-176 http://dx.doi.org/10.20884/1.jdh.2014.14.2.291 http://dx.doi.org/10.25216/jhp.3.2.2014.163-176 volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 109 administrative agency/official itself as a defendant or execution based on self respect. where if the defendant is unwilling to carry out the verdict of the inkracht van gewisjde court, the relevant official/agency/institution is subject to payment of a forced amount of money or administrative sanctions. so that whether or not the court’s decision on the inkracht is carried out is entirely left to the awareness and good intentions of the defendant himself (self respect). the law both the administrative court law and the government administration law also do not regulate who carried out the execution. in the civil procedural law it is very clearly determined which organs or institutions are obliged to carry out executions under the orders and leadership of the chair of the district court. not so in state administrative court procedural law. neither the administrative court law nor the government administration act does not regulate and determine which organs or institutions will carry out the executions. whereas regarding the execution of the decision (execution), the procedural law clearly provides provisions regarding the procedure for legal instruments in the framework of execution, such as: confiscation institutions, auctions, emptying and surrender. in the state administrative court procedural law, there is no such regulation, because in a state administration dispute there is no real execution, only administrative execution. for additional obligations, namely the obligation of the defendant to pay compensation and carry out rehabilitation, theoretically, the execution can take place. nevertheless, it is still unclear who led the execution. implementation also depends very much on government organs. the element of coercion as a characteristic of execution is not apparent, so potentially there is a possibility of being unworkable. this shows the existence of legal obscurity (blurred norms) regarding because it gives room for uncertainty. this legal obscurity is also motivated by the absence of legal vacuum mentioned above. on the other hand the amount of compensation and compensation that the claimant can get is relatively small. as article 3 paragraph (1) of government regulation no. 43 of 1991, the amount of compensation can be obtained by the plaintiff, which is a minimum of two hundred and fifty thousand rupiahs and a maximum of five million rupiahs. the amount is certainly not proportional to the amount of compensation in civil cases that are not normatively limited. that the decree of the state administrative court is binding on the parties to the dispute (inter partes) as well as binding on everyone (erga omnes). according to bagir manan, erga omnes decisions have the advantage of having legal certainty over state administrative decisions sued in the state administrative court, while the other side is viewed negatively, making the state administrative court judge, besides performing the judicial function by establishing the law, but also has widened to carry out the function of legislation by forming laws. volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 110 | the legal certainty of the decree of the state administrative court, which is erga omnes, is not followed by certainty over its implementation. provisions regarding the execution regulated in article 116 paragraph (4) of the law on state administrative court, although it has stipulated the forced money or administrative sanctions, is only summarized. the unclear regulation regarding forced efforts and forced money reflects the lack of legal certainty regarding the execution of the state administrative court decision. indicators of the absence of legal certainty include,36 first, the unclear application of forced money (dwangsom), which still requires implementing regulations related to procedures and mechanisms for the payment of forced money; the unclear time or when can be determined the amount of forced money that must be paid; and it is unclear whether the imposition of forced money, whether charged to the agency/institution/administrative officer or the personal government official. second, the unclear implementation of administrative sanctions that is not yet clear what types of sanctions can be applied; it is not clear about the basic regulations regarding administrative sanctions that can be used as a reference; and the mechanism and procedures for implementing administrative sanctions are not yet clear. after the entry into force of the government administration law, specifically article 54, is related to the implementation of a positive fictive principle, because the silence of the agency/institution/state administration officer is considered approval, if the request for acceptance of the ruling by the applicant is granted, the administrative court then determines the decision to accept the request. obligations that must be carried out by the related agency/institution/official are then to determine the decision to implement the decision to accept the application by the court. the decision (by the state administration agency/officer/institution) to execute the decision to accept the application by the court is constitutive or declarative in nature. referring to article 17 number 2 of the supreme court regulation no. 8 of 2017, if the court accepts the petition for the decision to accept the petition to read the petitioner’s request and requires the agency/institution/ government official to issue a decree/take action referring to the petitioner’s request. so the contents of the decision to accept the application by the court in the government administration act is an obligation for the administrative agency/ institution/official to issue a decision/take action. the obscurity of forced efforts related to the execution of the execution was also experienced in the implementation of article 81 paragraph (2) of the government administration act. the forced effort is closely related to the execution of the decision to accept the application based on the implementation 36lotulung, paulus effendi. (2013). hukum tata usaha negara dan kekuasaan. jakarta: salemba humanika, p. 139. volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision | 111 of a positive fictive principle that was not carried out by the state administrative body/official. where sanctions in the government administration act are basically similar to sanctions as for the state administrative court act that is forced money (dwangsom) or temporary dismissal with/without obtaining office rights. regarding forced money, there are no implementing regulations related to the procedures and mechanism for the payment of forced money that regulates the procedure for imposition, both time, the amount of forced money to be paid and related to the subject of imposition of forced money, whether charged to the agency/administrative officer or to the person of the administrative official. as well as the temporary dismissal, there are no specific implementation rules yet so that this effort cannot be implemented. from this description, the lack of legal certainty related to execution in the state administrative court law. in addition to the revocation of the state administrative decree as referred to in article 97 paragraph (9) letter a of the state administrative court act, for which automatic execution applies as stipulated in article 116 paragraph (2) of the state administrative court law, the execution of execution in administrative court is basically again, it depends on the awareness and good intentions of the state administrative body/officials to carry out the content of the decision in a self respect manner which results in legal uncertainty. that is because only the state administrative body/officials can carry out the contents of the decision. in addition, forced efforts to encourage the implementation of the contents of the decision are also unclear, so the regulations cannot be implemented. the public interest will potentially be greatly harmed because in terms of the execution provisions of the state administrative court decision the execution of the execution is related to the defendant’s obligation to issue a state administrative decision depending on the will or good will of the defendant. the forced effort as an effort related to the execution of the court’s decision cannot be realized. so if the defendant is reluctant/does not implement the contents of the decision, the execution of the state administrative court’s decision cannot be carried out. conclusion based on the study examined in this paper, it can be concluded that the verdict of the state administrative court can be executed is the verdict of the state administrative court inkracht van gewisdje (which has permanent legal force) and is condemnatoir. there are two things that require the execution of the defendant’s obligations related to the revocation of the decree and the defendant’s obligations related to the issuance of the state administration decree and/or taking action. the obligation is accompanied by the imposition of compensation and the provision of rehabilitation. the provisions of execution of the execution of the decision volume 2, issue 2, december 2019 : 89 117 discourses of legal certainty in execution of administrative court decision 112 | related to the obligations of the defendant to revoke the decision are sufficient, through the provisions of automatic execution. on the other hand there is a legal vacuum related to the provisions of the execution of the decision containing the defendant’s obligation to issue a new and replacement state administration decision. the legal vacuum is because the unclear regulation regarding forced efforts and forced money reflects the lack of legal certainty regarding the execution of execution in state administrative courts. constraints faced in the implementation of the execution of the decision of the administrative court after the enactment of the government administration act are still the same as before the enactment of the law. where there are four things that become obstacles, namely who orders and leads the execution, who carries out the execution, and how the procedures are carried out, the law does not regulate and then the implementation cannot be forced because it is highly dependent on government organs. the element of coercion as a characteristic of execution is not apparent, so potentially there is a possibility of being unworkable. because the execution of the administrative dispute is still based on self respect, and due to unclear rules both in the administrative court law and the government administration law and the absence of implementing regulations related to forced efforts, the defendant’s obligation to carry out his obligation to issue state administrative decisions cannot be forced, so that potentially could not be implemented, causing legal uncertainty. that is because the rights of the people contained in the state administration 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