Analysis of Customary Institutions’ Position and Roles in Business Permission Bureaucracy: Case of Bali (original) (raw)
Related papers
Journal of Indonesian Legal Studies
In the context of criminal law, recognition of customary law begins with a very fundamental principle, namely the principle of legality – a legal basis for declaring an act as a criminal act. This paper examines the implementation of customary law regarding the violation of Penglipuran customary, in accordance with the customary delict from the perspective of the principle of legality and the future policy formulation of the principle of legality that accommodates the existence of customary law. To answer these problems, socio-legal research methods are used, data in the form of legal documents and results of in-depth interviews, various approaches (legal, theoretical, and historical approaches) and then analyzed through deductive-inductive methods. The results show that the Criminal Code adheres to the principle of formal legality, consequently, the written law is the only source to declare an act as an offense. Whereas in the Penglipuran community, it is known that customary delic...
ARRANGEMENT OF TRADITIONAL INSTITUTIONS IN INDONESIAN LEGAL SYSTEM
Tanjungpura Law Journal, 2023
The establishment of the Majelis Desa Adat/Traditional Village Council (MDA) in Bali Province and the Majelis Dewan Adat Dayak Nasional/National Dayak Customary Council in Kalimantan (MADN) in Kalimantan Province are clear examples that the customary law community unit seriously shows its existence to accommodate the interests of members and create policies that can directly affect the customary law community unit. However, the existence of these two customary institutions does not yet have legal certainty in Indonesian legal arrangements that specifically discuss their position. As a result, the position of these customary institutions in the national realm is ambiguous due to the unclear status and position of legal products and the strength of the policies issued. The purpose of this research is to discuss the position of the customary village council in Bali Province and the national Dayak Customary Council in Kalimantan in the laws and regulations and the status of policies issued by customary institutions in Indonesian laws and regulations. The method used is normative legal research. Data sources consist of primary legal materials, secondary legal materials, and tertiary legal materials. In this research, the data is analyzed qualitatively and then presented descriptively to get a comprehensive conclusion. The results show that the MDA and the MADN have experienced significant developments ranging from institutional arrangements to legal products issued. Therefore, to provide legal certainty to the position of customary institutions and the status of legal products issued by Customary Institutions, it is necessary to explicitly regulate in Law Number 12 of 2011 as amended by Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning the Formation of Legislation concerning the position of Customary Institutions and the resulting Legal Products so that there is no overlap of policies between positive law and customary law that is currently running.
Legal Protection of Land Tenure by Foreign Investors through Nominee Agreement in Bali, Indonesia
International Journal of Criminology and Sociology, 2021
This paper aims to describe legal protection as the provision of legal certainty to every citizen, individual or legal entity, to fight for and/or defend their rights and obligations by law enforcement officers and/or authorized officials in a certain place. More specifically, the analysis was conducted by using the socio-legal approach to examine the legal protection of land tenure by foreign investors through the nominee agreement in Bali, Indonesia. Moreover, the method was also done by using a normative approach through the analysis of legal matters in Indonesian laws. The legal basis is regulated in the basic constitutional provisions of the 1945 Constitution of the Republic of Indonesia, the Criminal Code, the Civil Code, the Basic Agrarian Law, the Environmental Act, Tourism Act, Investment Act, Government Regulation No. 41 of 1996 concerning ownership of residential houses or dwellings by foreigners domiciled in Indonesia. The results showed that there is no exception to foreign investors who contribute to the community also get legal protection. To carry out these investment activities requires land that is sometimes controlled by using nominee. The nominee is someone who acts for and on behalf of another party as the endorsee/guardian, agent/representative of the nominee/simulation/fake agreement. Sociological outlook showed that the sociological basis of Balinese society consists of a spiritual community that upholds local culture because many foreign citizens visit and reside because they want to take a vacation to visit the tourist area and find work in Bali, especially working in the field of tourism services and other fields of work that revive the community in Bali
Journal of Sustainable Development Science
Customary conflicts that occur in indigenous communities in Bali are caused by social changes in the community that have an impact on changes in behavior, lifestyle and a shift invalues and culture. Therefore, ways and efforts are needed to resolve and reconcile disputes over conflicts or customary cases that occur. The legal issue in this study is the extent of the authority of the village Kerta institution in resolving conflicts or customary cases. This research is to use normative legal research. The regulations examined in this study are BaliProvincial Regulation Number 4 of 2019 concerning Customary Villages in Bali which is related with the existence of Kerta Desa as a customary judicial institution in the resolutionof traditional conflicts. The handling of adat conflicts is carried out by Kerta Desa as a Village Peace Judge by providing customary sanctions aimed at regulating the balance or restoring the disturbed adat order in the community.
Bali Mawacara: Is A Quasi-common Law System Developing in Balinese Customary Law?
Indonesia Law Review, 2019
Internationally renowned as a tourist destination, the Indonesian Island of Bali displays a rich and colorful culture which has served as one of the many explanation for its global reach. Its primarily Hindu population is visibly seen through a rather invisible disposition that perpetuates itself through the Balinese customary legal system which influences daily life. This autochthonous legal system exists in plurality with the Indonesian state legal system. As with all legal systems, the Balinese customary law system is in a state of flux. This article will examine the foundational sources and purposes of authority in the Balinese customary law system and analyze the pressures of change upon that system. It will be argued that an embryonic quasi-common law system is developing within the opus of Balinese customary law system due to the recent formation of the Majelis Utama Desa Pakraman (Pakraman Primary Village Council) and the Bali Mawacara jurisprudence.
Study Assessment Legal Law and Protection of a Regional Culture
https://www.ijrrjournal.com/IJRR\_Vol.7\_Issue.3\_March2020/Abstract\_IJRR0012.html, 2020
This Study discussed about traditional knowledge (PT) and traditional cultural expressions(EBT) is a state asset that is very potential for prosperity nation because it has high economic value, but ownership many recognized (claimed) by foreign parties without any benefit sharing, resulting in a conflict of interest between developed countries and the state developing like Indonesia. Our weakness in developing the protection system there is no proper protection system and adequate and limited data, documentation and information about PT and EBT. The struggle of Indonesia as one of the developing countries for legal protection to continue form a proper protection system for traditional knowledge at the international level in 2000 IGC-GRTKF was formed(Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklor) by WIPO to discuss the possibility of holding a binding agreement, in an effort the law to protect internationally, then at the national level The government is conducting a discussion on the DraftLaw (RUU) concerning SDGPTEF (Genetic Resources, Traditional Knowledge and Expression of Traditional Culture. While which already exists, namely Law Number 19 of 2002 concerning Rights Cipta is not fully operational, because there is no regulation Implementation. Keywords: Assessment Legal, Regional Culture, Draft Law
2021
Although this customary law is official in Indonesia, its existence and use are minimal. At the same time, customary law is the primary source of state law in building law towards the perfection of legislation. Although customary law is not written down in the context of recognition, it is still recognized even though it is within certain limits and consensus. So, this is what we consider to be the complexity resulting from the socio-cultural diversity in Indonesia so that the existence of customary law is not recognized by national law. We have carried out this study using the review method on a hundred pieces of evidence of field findings, and we present it in this report so that we gain a deep understanding of how to understand customary law and the complexity of the socio-cultural diversity of Indonesian society. Hopefully, this finding is helpful for observers of customary law and developments in the country.
The Challenge of Indonesian Customary Law Enforcement in the Coexistence of State Law
Asy-Syir'ah: Jurnal Ilmu Syari'ah dan Hukum
This article examines the challenges that arise from implementing customary law in Indonesian society amidst the predominance of state law. The data was collected from primary and secondary legal materials as well as facts on the ground. Applying a juridical-empirical approach, this study identifies various factors that contribute to difficulties in the application of customary law, including the tendency for law enforcers to prioritize state law over customary law, and the textual understanding of law that permeates legal discourse. Furthermore, efforts to unify the law have also created additional problems for customary law. In addition, this article also finds evidence that a number of concepts offered by experts in overcoming this problem are in fact not able to guarantee the application of customary law in the life of Indonesian society. Thus, it is necessary to support these proposals with legal-political changes that can ensure the existence and enforceability of customary law in Indonesian society.
World Heritage-Making in the Pluralistic Legal-Institutional Setting of Catur Angga Batukaru, Bali
As the subak system, the backbone of Bali’s agricultural heritage, is threatened by many challenging factors which compromise its existence, new approaches to address such threats have been introduced. One of them is the designation of the UNESCO World Heritage List. The listing of the Subak Landscape of Catur Angga Batukaru involved a re-territorialisation undertaken by the Indonesian state during the nomination process. It is expected to expand the tourism market and in turn to provide incentives for local farmers to preserve the landscape. This presentation will examine this re-territorialisation process using a legal pluralism approach. It argues that the reconfiguration and rescaling of the Subak Landscape of Catur Angga Batukaru did not carefully assess the pluralistic legal-institutional and power dynamics at every scale. As a result, alliances and contestations between social forces aimed primarily at accessing power and resources have used this complex legal-institutional setting to facilitate or constrain particular interests at the expense of others. The fundamental failure of the original nomination to undertake adequate consultation and ensure participation at the scale where local social interaction and political dynamics take place - the subak itself - is compounded by failure to ensure full participation and benefit sharing in the management of the World Heritage site since its designation. If not corrected, the disingenuous conflation of conservation and commodification objectives of power-holding interests will undoubtedly lead to the failure to build a sense of subak ownership toward the program and inability to prevent vested interests from undermining the interests of the whole.
Land Rights Ownership by Foreign Citizens through Nominee Agreement in Tourism Investment in Bali
Proceedings of the International Conference on Business Law and Local Wisdom in Tourism (ICBLT 2018), 2018
This study is conducted to describe the impacts arising from the smuggling of agrarian law to avoid losses for investors and the negative impacts on investment evaluation as supporting the efforts of international tourism infrastructure development, particularly in Bali. This research utilizes normative legal method to carry out literature study as it has characteristic and tradition of law science. The approach used in this study is statue approach, case approach and conceptual approach. The result shows that the validity of foreign citizens' ownership of land that is originally owned by Indonesian citizen performed by Notary with notary deed in a formal juridical manner is indeed according to underlying rules, in the sense that the legal status is legitimate. However, it materially violates the provisions of Article 26 paragraph (2) of the Basic Agrarian Law Act (UUPA) as it is an indirect attempt to transfer Land Rights Property from Indonesian citizens to foreign citizens. In conclusion, the ownership of land rights by foreign citizens through nominee in tourism investment violates the provisions of Article 26 paragraph (2) of the UUPA.