Abstract
One of the obligations of a sovereign state is to provide legal protection to every citizen, including every child who is not under the authority of his parents. The authority of the state in supervising the assets of children under guardianship through BHP based on Articles 366 and 369 of the Civil Code, in practice becomes paradoxical because in general the Court does not hand over copies of guardianship stipulations to BHP. The court considers that the two articles referred to are no longer valid, while on the other hand there is no regulation that specifically regulates this authority. The method used in this research is by taking respondents from the BHP and the Courts, so that an objective contribution is obtained. The results of the study show that the level of effectiveness in the implementation of guardianship oversight authority is relatively low, namely 68.18. Therefore, in the short term, it is necessary to accommodate the provisions of Articles 366 and 369 of the Civil Code into the Child Protection Law, while in the long term, Indonesia needs to initiate the concept of a legal system for child guardianship, as has been done in several countries.
PUBLIC INTEREST STATEMENT
Supervision of child guardianship is the authority and obligation of the state through the BHP to take an oath against the guardian, record the child’s assets before he grows up, and supervise the guardian in managing the child’s assets. The results showed that the role of the BHP had not been carried out optimally because the District Courts and Religious Courts did not submit a copy of the guardianship determination to the BHP as mandated by Articles 366 and 369 of the Civil Code. Therefore, in the short term, it is necessary to immediately accommodate the contents of Articles 366 and 369 of the Civil Code into the Child Protection Law and in the long term, Indonesia needs to initiate the establishment of a national guardianship legal system as has been done by many countries.
1. Introduction
Society is human individuals and groups who come together for various purposes. Elements of society interact based on needs and depend on one another (Dewi Judiasih, Citation2019). Humans as social beings are always looking for and needing other humans to live together and organize socially. The smallest form of humans living together begins with forming a family (Rasjidi, Citation1991), which begins with marriage. Marriage is a regular culture that applies to a society or nation that is bound by the influence of culture and the environment in which the community is located (Hadikusuma, Citation1990).
Indonesia is a legal state in the form of a republic where sovereignty is in the hands of the people and implemented according to the Constitution. One of the indicators of the rule of law is respect for human rights. This is as regulated in Article 28 A of the 1945 Constitution of the Republic of Indonesia which states that everyone has the right to live and has the right to defend his life and life, including within the scope of family law. Within the scope of family law these rights and freedoms can be read in Article 28 B paragraph (1) which states that everyone has the right to form a family and continue their offspring through a legal marriage and Article 28 B paragraph (2) also states that every child has the right to survival, grow, develop and have the right to protection from violence and discrimination. This includes the freedom of everyone to practice their religion and belief, as referred to in Article 29 paragraph (1) which states that the state is based on the One Godhead and paragraph (2) the state guarantees the independence of each resident to embrace their own religion and to worship according to his religion and beliefs.
The institution of marriage as part of family law is also a concern of the state. Strict regulation by the state through positive law gave birth to Law Number 1 of 1974 concerning Marriage. Historically, this Marriage Law is a national legal product that was born from a long study, by accommodating the sociological aspirations of the Indonesian people, as a substitute for marriage arrangements in the Civil Code. (Romlah, Citation2016). In Article 1 of the Marriage Law, it is stated that marriage is an inner and outer bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family based on the One Godhead, and the obligation of husband and wife to help and complement each other (Dewi Judiasih, Citation2019). Thus, marriage is not enough only with outward ties or spiritual ties, but must be both, the intertwining of outer and inner ties is the foundation in forming a happy and eternal family. (Dewi Judiasih, Citation2018). Marriage has legal consequences for husband and wife, such as the formation of marital property, legal child status and status, and inheritance relationships.
Every man and woman who is bound by a legal marriage bond, of course, really longs for the presence of a child. Children will be a complement to the happiness of husband and wife in married life, as well as the happiness of living in one family. The child is a gift or deposit from Allah SWT which is always to be guarded and protected because in the child there are inherent dignity, dignity, and rights as a human being that must be upheld, the child is the successor to the ideals of the nation so that the child has the right to survival without any coercion., violence, discrimination, or exploitation of any kind, in this case, parents are obliged to provide protection as early as possible so that children can live and develop and get proper education to get a better future.
Children are the most valuable assets for families, communities and nations. He is the party on which the family, society and nation depend on hope, even more deeply the child is the party who will determine whether a country is brought to prosperity or to adversity. According to religious teachings which state that every child born into this world is holy, then it is his parents who will make him a Jew, Christian or Magian. Both parents are obliged to maintain and educate their children as well as possible until the child is married or can take care of himself. Parents are not allowed to transfer property rights or pawn permanent assets owned by their child who is not yet 18 years old or has never been married, unless the interests of the child so desire.
In practice, not all children (Candra, Citation2018) lucky to be able to pass his childhood in the love of his parents until he grew up. The end of the marriage gave birth to the legal event of guardianship. An immature child who is not under the control of his parents certainly requires adult supervision, especially the management of assets left by his parents. The supervision and management of children’s assets is basically to finance the life and education of the child. This condition places the importance of the existence of Balai Harta Peninggalan (BHP) in its authority to supervise the assets of children under guardianship. However, in practice the BHP’s authority to supervise child guardianship, as a representation of the state, is like being quiet in a crowd. The BHP institution is not well known by the public.
2. Material and methods
This research is a normative juridical research that wants to analyze how the application of legal norms regulated in Article 366 and Article 369 of the Civil Code. The authority of the state through the BHP in supervising children’s assets under guardianship will be seen how effective it is in society. The data used is to utilize secondary data in the form of existing documents at the Supreme Court, laws and regulations and other written literature. While the primary data obtained directly in this study were sourced from the Legal Technical Members of BHP 28 respondents, District Court Judges and Religious Courts 13 respondents. This research was conducted in 5 Balai Harta Peninggalan offices, with each BHP office overseeing all provinces throughout Indonesia. The characteristics of each BHP office with the area under its authority can be seen in the table below:
Table 1. Working area of the Balai Harta Peninggalan Kementerian Hukum dan HAM RI
3. Results and discussion
3.1. Understanding role theory
One of the studies in legal theory is the empirical dimension, namely legal theory that examines and analyzes law from its applicability in society. The object of the study of empirical legal theory is basically the same as the object of the study of sociology of law which examines and explains the relationship between law and society. The derivative of empirical legal studies or legal sociology theory is role theory, which is a theory that wants to analyze the tasks that must be carried out by people or institutions that have formal or informal positions.
Role theory is like a theater stage where each person plays a role and character. Role theory was proposed by Robert Linton, Glen Elder and B.J. Biddles. Robert Linton (H Salim, Citation2014) by describing how each person plays his role in his capacity and social status. Glen Elder then expanded the use of role theory by using a “life-course” approach (H Salim, Citation2014). The concept of role in both theories is closely related to behavior, which is an individual or group response or reaction that is manifested in movements and attitudes, not only in body, but also in speech. When carrying out his role, the person concerned must play a role and behave according to his status (H Salim, Citation2014). According to Mukti Fajar ND and Yulianto, the definition of role theory is a theory that examines that people will behave according to their status and role. (Mukti & Achmad, Citation2010).
In fact, it is not only the community that plays its role, but the state, through the executive, legislative, judicial and institutions that live and develop in society also plays a role in accordance with its position to solve or end problems that arise in society. In its development, role theory has expanded its meaning as a theory that examines and analyzes the role of institutions and society in solving, resolving and ending problems that arise in the life of society, nation and state. One of the elements that the state must possess in playing its role is power, although it is not the only one. The state through the BHP will be tested with facts and or empirical evidence, regarding the extent to which the role of guardianship supervision can be carried out or not. It will also be studied and investigated why a copy of the decision of the District Court and the Religious Court was not submitted by the Court Registrar to BHP, so that BHP did not know of any guardianship determination for children who were not under the authority of their parents.
3.2. Legal events of guardianship and supervision of child guardianship in legislation
The Civil Code explicitly regulates guardianship supervision. The provisions for guardianship supervision are regulated in the Civil Code Chapter XV of Immaturity and Guardianship, Section 7 of Supervisory Trustees, in particular Article 366 and Article 369 of the Civil Code. Article 366 stipulates that in every guardianship ordered therein, BHP is assigned as the supervisory guardian. Furthermore, Article 369 of the Civil Code also stipulates that, in all cases if guardianship is ordered by a judge, the Registrar of the District Court concerned must immediately notify BHP in writing of the appointment.
The position of a guardian is closely related to BHP as a supervisory trustee, in terms of the guardianship accountability he does and BHP’s obligation to ask for the said accountability every year, as regulated in Article 372 of the Civil Code.
Every year the supervising guardian must ask each guardian (except father and mother), to briefly provide a calculation of responsibilities and to show him all the papers and securities belonging to the minor. This brief calculation will be made on unsealed paper and submitted without any cost, even without any legal form.
If the guardian does not want to carry out what is referred to in Article 372 of the Civil Code, then the supervisory guardian is required to demand the dismissal of the guardian, as regulated in Article 373 of the Civil Code.
If a guardian is reluctant to carry out what was warned in the previous article or, if the supervisory guardian in the brief calculation finds signs of fraud or major negligence, then the supervisory guardian must demand the dismissal of the guardian. He must also demand the dismissal in all matters stipulated in the law.
If a guardian leaves and neglects a child, then the negligence of a guardian can be threatened with compensation for costs, losses and interest, even up to his dismissal as a guardian, as regulated in Article 374 of the Civil Code.
If the guardianship is vacant or abandoned due to the absence of the guardian, or also if the guardian is temporarily unable to carry out his duties, then at the threat of compensation for costs, losses and interest, the supervisory guardian must submit a request to the Court for the appointment of a new guardian or temporary guardian.
Law Number 23 of 2002 concerning Child Protection regulates guardianship in Chapter VII concerning Guardianship, starting from Article 33 to Article 36, as follows:
Article 33 paragraph (1) In the event that the child’s parents are incapable of carrying out legal actions, or their place of residence or whereabouts are unknown, a person or legal entity that meets the requirements may be appointed as the guardian of the child concerned. Paragraph (2) To become the guardian of the child as referred to in paragraph (1) is carried out through a court order. Paragraph (3) The guardian appointed as referred to in paragraph (2) must have the same religion as the child’s religion. Paragraph (4) For the benefit of the child, the guardian as referred to in paragraph (2) is obligated to manage the property of the child concerned. Paragraph (5) Provisions regarding the terms and procedures for appointing a guardian as referred to in paragraph (1) shall be further regulated by a Government Regulation.
Article 34 The guardian who is appointed based on a court decision as referred to in Article 33, can represent the child to take legal actions, both inside and outside the court for the best interest of the child.
Article 35 paragraph (1) in the event that the child has not received a court ruling regarding the guardian, then the assets of the child can be managed by BHP or other institutions that have the authority to do so. Paragraph (2) BHP or other institutions as referred to in paragraph (1) shall act as supervisory guardians to represent the interests of the child. Paragraph (3) The management of assets as referred to in paragraph (1) and paragraph (2) must obtain a stipulation.
Article 36 paragraph (1) In the event that the appointed guardian turns out to be incompetent in carrying out legal actions or abuses his power as a guardian, his guardianship status is revoked and another person is appointed as a guardian through a court order. Paragraph (2) In the event that the guardian dies, another person is appointed as the guardian through a court order.
Law Number 1 of 1974 concerning Marriage regulates guardianship matters in Chapter XI concerning Guardianship, starting from Article 50 to Article 54, as follows:
Article 50 (1) Children who have not reached the age of 18 years or have never been married, who are not under the authority of their parents, are under the authority of a guardian. Paragraph (2) The guardianship concerns the person of the child concerned and his or her property.
Article 51 paragraph (1) A guardian can be appointed by one parent who exercises parental authority, before he dies, by a will or verbally in the presence of 2 witnesses. Paragraph (2) Guardians shall, as far as possible, be taken from the child’s family or other people who are adults, sound-minded, fair, honest and well-behaved. Paragraph (3) The guardian is obliged to take care of the child under his control and his property as well as possible, with respect to the religion and belief of the child. Paragraph (4) The guardian is obliged to make a list of the property of the child which is under his control at the time of starting his office and to record all changes in the property of the child or children. Paragraph (5) The guardian is responsible for the property of the child under his guardianship as well as the losses incurred due to his mistake or negligence.
Article 53 paragraph (1) Guardians can be revoked from their powers, in the cases referred to in Article 49 of this Law. Paragraph (2) In the event that the power of a guardian is revoked, as referred to in paragraph (1) of this article, another person will be appointed by the Court as the guardian.
Article 54 A guardian who has caused a loss to the property of a child under his control, upon the demands of the child or the child’s family with the relevant Court may be required to compensate for the loss.
In the Presidential Instruction Number 1 of 1991 concerning the Compilation of Islamic Law on guardianship, it is regulated in Chapter XV concerning Guardianship, starting from Article 107 to Article 112, as follows:
Article 107 paragraph (1) Guardianship is only for children who have not reached the age of 21 years and or have never been married. Paragraph (2) Trusteeship includes guardianship of himself and his assets. Paragraph (3) If the guardian is unable to act or neglects to carry out his guardianship duties, the Religious Court may appoint a relative to act as guardian at the request of the relative. Paragraph (4) Guardians should be taken from the child’s family or other people who are adults, sound-minded, fair, honest and well-behaved, or are legal entities. In the context of guardianship, KHI has similarities with the Civil Code, especially regarding guardianship supervision of children under guardianship with an age limit of 21 years and have never been married. Meanwhile, the Marriage Law regulates the age limit for guardianship supervision for children who are not yet 18 years old.
Article 108 Parents can give a will to a person or legal entity to take care of themselves and the property of their child or children after he dies.
Article 109 The Religious Courts may revoke the guardianship rights of a person or legal entity and transfer them to another party at the request of their relatives if the guardian is a drunkard, gambler, spender, crazy and or neglects or abuses his rights and authority as a guardian for the benefit of the person under his guardianship.
Article 110 paragraph (1) The guardian is obliged to take good care of himself and the property of the people under his guardianship and is obliged to provide religious guidance, education and other skills for the future of the people under his guardianship. Paragraph (2) A guardian is prohibited from binding, encumbering and alienating the property of a person under his guardianship, except in the case of such action. unavoidable benefit to the person under his guardianship. Paragraph (3) The guardian is responsible for the assets of the person under his guardianship, and compensates for the losses that arise as a result of his mistake or negligence. Paragraph (4) Without prejudice to the provisions stipulated in Article 51 paragraph (4) of Law No.1 of 1974, the accountability of the guardian as stated in paragraph (3) must be proven by bookkeeping which is closed once a year.
Article 111 paragraph (1) The guardian is obliged to surrender all the assets of the person under his guardianship, if the person concerned has reached the age of 21 years or is married. Paragraph (2) When the guardianship has ended, the Religious Courts have the authority to adjudicate disputes between the guardian and the person under his guardianship regarding the assets handed over to him.
Article 112 The guardian can use the assets of people under his guardianship, as long as it is necessary for his interests according to propriety or bil ma’ruf if the guardian is poor.
Based on the regulation of guardianship and guardianship supervision in the laws and regulations, the provisions that explicitly regulate the supervision of guardianship are contained in two regulations, as shown in the table below:
Table 2. Terms of guardianship and guardianship supervision in Indonesia
3.3. Expert views and opinions about guardianship
Most of the content regulated in family law originates from marital ties, including legal guardianship events. This means that it is the marriage bond that actually gives birth and creates family law. The legal event of guardianship is one part of family law that aims to provide legal protection for children. In certain circumstances, not all children are in the power of their parents. Facing this situation, it is necessary to have an institution to replace parental power over children who have not reached a certain age or are not yet married. Institutions that replace parental authority are known as guardianship institutions. Guardianship is an institution that replaces parental power over minors. Guardianship power includes power over the person and property of the child. The exercise of guardianship power by the guardian is expected to benefit the child and his assets. Likewise, if the power ends, it will not cause harm to the child’s personal and or his assets in the future (Ishak, Citation2017).
In talking about guardianship, we will not be separated from family law. Family law regulates something concerning the legal status and every legal relationship within the family environment or scope which includes marriage, child status, partnership or marriage relationship, the relationship between child and parents (towards the child and his or her assets), child relationship with his/her relatives, regarding guardianship, guardianship, and adoption (Hasan, Citation1988).
The problem of child guardianship cannot be separated from a marriage, because it is from the marital relationship that children are born and if at one time there is a divorce, one of the parents or both of them dies, then in this case there will be guardianship issues, and the children will be under a guardianship institution. The guardian is the person who regulates and is responsible for the interests of the children, both regarding the child and the child’s property.
Before guardianship arises, the children are under the control of their parents, which is the power exercised by the father or mother, as long as the father or mother is still bound in marriage. That power is usually exercised by the father, but if the father is outside the possibility to exercise that power then the mother becomes the guardian. In general, both parents are obliged to maintain and educate children who are not yet mature, even though the parents of the minor children lose the right to exercise parental authority or become guardians, this does not relieve the child’s parents from the obligation to provide allowances for pay for his maintenance or education until the child becomes an adult.
Guardianship in language terms is wali which means helping those who love (Warson Munawwir, Citation1984). Guardianship in linguistic terms also has several meanings, including the word guardianship derived from the word guardian, and the plural from awliya. This word comes from Arabic which means friend, client, relative or protector. In Islamic fiqh literature, guardianship is called al-walayah (alwilayah), (a person who manages or is in control of something), like the word ad-dalalah which can also be called ad-dilalah. Etymologically, it has several meanings, including love (al-mahabbah) and help (an-nashrah) and also means power or authority (as-saltah wa-alqudrah) as in the expression of al-wali, namely “people who have power”. The essence of al-walayah is “tawalliy al-amr”, (managing or controlling something). Guardianship in terms of fiqh is called territory, which means control and protection. So the meaning of guardianship according to fiqh is full control given by religion to someone to control and protect people or goods. The person who is given the power of guardianship is called the wali (Soemiyati, Citation1986).
According to R. Subekti, guardianship is the supervision of minors who are not under the authority of their parents and the management of the child’s objects or assets. R. Subekti’s opinion is in line with the opinion of (Afandi, Citation2000) which states that guardianship is the supervision of the personal and management of the assets of a child who is not yet an adult if the child is not in the hands of parental authority. The opinion of R. Subekti and Ali Afandi is also in line with the opinion of (Titik Triwulan Tutik, Citation2006), which explicitly mentions the person and property of the child, by providing the understanding that guardianship is the supervision of the personal and management of the assets of a child who is not yet an adult, if the child is not in the hands of parental authority. While the opinion (Syahrani, Citation2006) said that guardianship only exists when a child or several children are not under the control of their parents at all.
In civil law, especially with regard to assets, a child who is under the guardianship of his legal status is not capable of carrying out civil legal actions. A child under guardianship gets supervision from a guardian who acts on behalf of the child in carrying out legal actions on his assets until the child becomes an adult.
Therefore, this guardianship needs to get special and ongoing handling, including regarding civil rights for children who are still underage, who are orphaned because of the loss of their father and mother, because they are still minors, children need a guardian who will play a role in protecting and taking care of their interests including managing the inheritance of their parents (Abubakar, Citation2011).
The guardian in carrying out his duties is required to take care of the child under his guardianship and take care of the child’s property as best as possible by respecting the religion and belief of the child. In addition, the guardian is obliged to maintain all the property of the child at the time of starting his position as a guardian and is also obliged to record all changes that exist in the property of the child. The guardian appointed by the court can represent the child to carry out legal actions, both inside and outside the court for the best interest of the child. The guardian in carrying out his obligations cannot be separated from the supervision of BHP as the supervisory guardian. BHP has an important role in ensuring that minors receive protection for themselves and their property, even though this power is exercised by their guardians until they are adults and capable of carrying out legal actions.
3.4. The Effectiveness of BHP’s Authority in Guardianship Supervision
The development of government authority is influenced by the characteristics of the tasks assigned to it. The task of the government is to follow the duties of the state, which is to carry out part of the duties of the state as an organization of power. In the treasury of state sciences, there are several kinds of state duties. Mac Iver put forward three tasks of government by classifying into (Syarifudin, Citation1996):
Cultural function;
General welfare function;
Economic control function.
Prajudi Atmosudirdjo believes that the government’s task depends on the duties and objectives of each country. The development of countries in the world shows a movement towards the form of a welfare state. To realize a welfare state, the authority and power of the state is very much needed. According to the general understanding or language, the word “power” which means the ability or ability (to do something); strength (Anton, Citation1995). While the authority is:
The right and power to act or do something;
The power to make decisions, command and delegate responsibility to others (Anton M. Moeliono, 1995).
E. Utrecht distinguishes the terms “power” and “strength”. It is said that “strength” is a political term which means coercion from a higher body to someone, even though that person is higher to someone, even though that person has not accepted the coercion as something valid as a positive legal order. “Power” is a legal term. Strength will become power if it is accepted as something legal or as a positive legal order and the higher body is recognized as the ruler (Utrecht, Citation1953).
Soerjono Soekanto put forward the notion of “power” as the ability to influence other parties according to the will of the holder of power. It is further explained that the existence of power depends on the relationship between the ruler and the ruled, or in other words between the party who has the ability to exert influence and the other party accepts the influence willingly or out of compulsion. (Soekanto, Citation1988). The difference between “power” and “authority” is that any ability to influence other parties can be called power, while “authority” is power that exists in a person or group of people who have support or get recognition from the community. (Soekanto, Citation1988).
Authority in principle is the ability or power to carry out certain legal actions. Authority has an important position in the study of constitutional law and administrative law. Basically, authority is an understanding that comes from the law of government organizations, which can be explained as a whole set of rules relating to the acquisition and use of government authority by public legal subjects in public legal relations. Government authority in this connection is connoted as the ability to implement positive law, and thus a legal relationship can be created between the government and citizens. (Rokhim, Citation2013). The authority which contains rights and obligations is essentially the ability to take certain legal actions, namely actions that are intended to cause legal consequences and include the emergence and disappearance of legal consequences. Rights contain the freedom to do or not to take certain actions or according to other parties to take certain actions, while obligations contain the obligation to do or not to take certain actions. (Rokhim, Citation2013).
According to (Kusumaatmadja, Citationn.d..), a person who has formal authority automatically has the power to take a certain action in accordance with the legal provisions governing the granting of that authority. According to (Manan, Citation2000), “power” is not the same as authority. Power describes the right to do or not to do authority means rights and obligations at the same time. Government power is part of the state power system. Kranenburg and Logemann who developed a modern theory which basically argues that the state is an organization of power. The legitimacy of power in a country must be accepted as a reality (Soehino, Citation2000). Hans Kelsen as stated (Abrar, Citation1999) considers the state as a legal entity that has rights and obligations, in addition to having the power to form laws (regulate). Abrar expressed Rousseau’s opinion that views the state as an agency or organization as a result of a community agreement whose essence is a form of unity that defends and protects a common power other than the personal power and property of each individual (Abrar, Citation1999). Wirjono Prodjodikoro in the context of government argues that the state as an organization in a society is fundamentally different from other organizations that exist in the midst of society. Its characteristic is that the government of a country has power over all members of society who are residents of a country, or who are in that territory (Prodjodikoro, Citation1980).
Conceptually, the task of the state or government according to Bagir Manan is not merely as a guardian of security or public order, but also bears the responsibility of realizing social justice, general welfare and for the greatest prosperity of the people. (Manan, Citation1996). The government in a welfare state is required to play a wider and active role, because the scope of people’s welfare is expanding and covers various aspects of life. Lemaire called such a government task as public service or the implementation of general welfare carried out by the government (Utrecht, Citation1953). It is impossible for lawmakers to regulate all kinds of rights, obligations and interests completely in a law (Lukman, Citation1997). Referring to the views of Prof. Bagir Manan above, the authority of BHP as a representative of the state in carrying out the supervision of the guardianship of minors must of course be seen in the frame of rights and obligations, as well as part of the provision of public services, to supervise the assets of children inherited from their parents.
The results showed that of the 24 respondents (86%) who had been appointed as Guardianship Supervision, in the last 10 (ten) years the average respondent carried out their duties as Guardianship Supervision 1 to 5 times, generally, BHP in carrying out guardianship supervision after receiving a copy of the decision from the District Court, as can be seen in the graph 1.1. and 1.2. below:
Graph 1.1. Guardianship supervision in the last 10 Years.
Graph 1.2. Guardianship assignment source.
The opposite data can be seen from the views and opinions of the District Courts and Religious Courts regarding the implementation of Article 366 and Article 366 of the Civil Code. Of the 13 respondents, the majority answered that they had not implemented it. Public knowledge of the existence of BHP as an agency authorized to supervise guardianship, the majority of respondents answered that they did not know, each respondent’s answer can be seen in the graph 1.3. and 1.4. below:
Graph 1.3. Implementation of Articles 366 and 369 of the Civil Code.
Graph 1.4. Public knowledge of the authority of BHP as Supervisory Guardianship.
The level of effectiveness of the implementation of the guardianship supervision authority shows the number 68.18 in the quite effective category, as can be seen in the table below:
Table 3. Effectiveness of BHP Guardianship Supervision Program
Based on the results of the study, it was shown that the majority of BHP respondents had performed guardianship supervisory duties, with an average of 1 to 5 times in the last 10 years. Furthermore, the majority of BHP respondents wanted guardianship supervision not only to be carried out on assets but also to cover the child’s personal self. Public knowledge of the existence of BHP as an agency authorized to supervise guardianship, the majority of respondents answered that they already knew, although not a few answered that they did not know it.
The views and opinions of the District Courts and Religious Courts regarding the implementation of Article 366 and Article 366 of the Civil Code show the opposite data. The majority of the District Courts and Religious Courts answered that they had not implemented it. Public knowledge of the existence of BHP as an agency authorized to supervise guardianship, the majority of respondents answered that they did not know. The trusteeship supervision authority as part of public service programs and activities shows a low level of effectiveness. This is confirmed, both from the data of BHP respondents and respondents from the District Court and the Religious Courts. In practice, the success of BHP to carry out legal supervision in legal cases of the guardianship of minors, is highly dependent on the role of law enforcement agencies in this case the District Courts and Religious Courts.
The relationship between the District Court and the BHP is related to the decisions issued by the Civil Registrar—one of which is guardianship decisions. A copy of the guardianship determination that has been issued by the court must be provided to BHP. In the order of stipulation, it must be stated that instructing the registrar to submit a copy of the stipulation to BHP as supervisory guardian and include in the order the determination of BHP as supervisory guardian. This stipulation must be reported to BHP because so far BHP is not aware of any stipulation of guardianship in its jurisdiction. Meanwhile, BHP as the supervisory trustee has the right to oversee the process of establishing the guardianship. In reality, the guardianship process is considered to have been completed by the guardian after a court decision has been made. This is due to the court’s order to determine guardianship which minimally includes the obligation of the guardian to report to BHP as the supervisory trustee.
From the description of the research data, it can be analyzed that the authority of BHP as a representative of the state to carry out guardianship supervision of children’s assets under guardianship, in the perspective of the rule of law theory as Julius Stahl’s view, one of the important elements, namely the protection of human rights, has not been realized. This is also in line with the views of A.V. Dicey, that the authority of BHP as a representative of the state to carry out guardianship supervision of children’s assets under guardianship, one of the important elements, namely the supremacy of law, has not been realized. The reason is that the District Courts and Religious Courts, as representatives of the state, have not maximally and seriously carried out the mandate of Article 369 of the Civil Code to submit a copy of the guardianship determination to BHP. A copy of the guardianship determination is the basis for BHP to carry out guardianship supervision as intended and mandated by Article 366 of the Civil Code, starting from taking an oath against a guardian, recording the child’s assets and supervising the implementation of the duties and obligations of the guardian. This condition also causes the presence of the state through the BHP not to be implemented, considering that the delegation of authority from the District Courts and Religious Courts has not been carried out optimally.
BHP institutions and institutions and the District Court have not been able to realize the process as expected to implement Article 366 and Article 369 of the Civil Code in order to realize the law in reality, which in turn has not been able to bring the state to provide protection for children under guardianship. Constitutionally, the presence of the state is a form of implementation of the principles and concepts of the rule of law as mandated in Article 1 paragraph (3) of the 1945 Constitution, with the parameters of respect and protection of human rights as referred to in Article 28 A, Article 28 B paragraph (1) and Article 28 B paragraph (2) of the 1945 Constitution.
The formulations of Article 366 and Article 369 of the Civil Code are very clear, easy to understand and implementable article formulations. Referring to Article 66 of the Marriage Law, Article 366 and Article 369 of the Civil Code must also be considered as provisions that are still valid because they have not been regulated in the Marriage Law and the Compilation of Islamic Law. There are several reasons for not carrying out the mandate of Article 366 and Article 369 of the Civil Code, because it has not been regulated in the SEMA/PERMA and the guardianship decision does not include the obligation to submit to the BHP because it is not a requested application, becomes counterproductive and irrelevant when it is associated with legal purposes for the sake of justice, certainty and usefulness. SEMA/PERMA is basically an internal regulation that regulates for the purpose of legal clarity and certainty. The justice to be realized by Article 366 and Article 369 of the Civil Code is justice for the rights of a child under guardianship through the presence of the state, legal certainty by looking at the clarity of the two formulations of the article there should be no doubt about implementing it, and the benefits are of course to provide protection of each child under guardianship guaranteed by law.
The position and authority of the BHP as a representative of the state in supervising child guardianship should not only be based on the foundation of Article 366 and Article 369 of the Civil Code, due to the fact that this authority is juridically strong but sociologically and philosophically does not work and cannot achieve its goal of providing the best protection against child. This is because the legal construction of Article 366 and Article 369 of the Civil Code is in a passive legal position.
3.5. The principle of lex specialis derogat legi generali
The establishment of good laws and regulations as referred to in Article 5 of Law Number 12 of 2011 concerning the Establishment of Legislations, includes the following principles: clarity of purpose; the appropriate forming institution or official; suitability between types, hierarchies, and payload materials; can be implemented; usability and effectiveness; clarity of formulation; and openness. Furthermore, in Article 6 paragraph (1) it is also stated that the content of the legislation must reflect the principles of: protection; humanity; nationality; kinship; archipelago; Unity in Diversity; justice; equal position in law and government; order and legal certainty; and/or balance, harmony, and harmony.
In practice, the conflict of norms between one law and another is unavoidable. According to the principle of conflict rules (Jaap, Citation1997), the rules of collision (Malec, Citation2001), or the principle of derogation (Prakken & Sartor, Citation1997) often discussed in the world of law, both national law and international law. These principles are used to determine which rules should be used and override other rules, based on hierarchical, chronological, and specific criteria. Referring to the three criteria, one of which is known as lex specialis derogat legi generali (the more specific rule prevails over the less specific) (Stelmach & Brożek, Citation2006).
The principle of lex specialis derogat legi generali is the principle of pointing out which law takes precedence as the basis used to resolve a legal event. According to Purnadi Purbacaraka and Soerjono Soekanto, the purpose of the principle of lex specialis derogat legi generali is that for events that must be promulgated that mention these events, even for those events a law can also be enacted which mentions broader events or events more general that can include such special occasions. Eddy OS Hiariej is of the view that in the context of criminal law, the principle of lex specialis derogat legi generali is a legal principle used to determine criminal laws and regulations that have been violated against concrete events (ius operatum) through law enforcement processes, so that the principle of lex specialis derogat legi generali This becomes important when law enforcers want to apply criminal legislation to the criminal cases they handle (Agustina, Citation2015).
3.6. Child Protection Law “Can” Override the Civil Code?
The application of the principle of lex specialis derogat legi generali is indeed not an easy job because it involves what is the measuring instrument to determine that a special rule can be used while at the same time overriding general provisions. However, it is not impossible to find a rational answer through a rational and systematic approach to legal logic (Irfani, Citation2020).
According to Bagir Manan, there are 3 things that can be used as guidelines in the application of the lex specialis derogat legi generali principle, namely:
Provisions regulated in the general law rules remain in effect, except those specifically regulated in the special legal rules.
The provisions of the lex specialis must be equal to the provisions of the lex generalis.
The provisions of the lex specialis must be in the same legal environment as the lex generalis, for example: the Commercial Code is lex specialis from the Civil Code (Manan, Citation2004).
Furthermore, Bagir Manan is of the view that, there are often mistakes in understanding the relationship between general and specific laws or regulations. It’s as if the special provisions must definitely override all the general provisions, but that’s not the case. Provisions of a general nature remain in effect as long as they are not specifically regulated in the relevant special regulations. For example, if you look at Article 1 of the Commercial Code: “The provisions of the Civil Code, as long as they are not specifically regulated in this Book of Law (meaning the Commercial Code) remain valid (applied). The application of special provisions to general provisions must be carried out partially, so that general legal norms will continue to apply as a background that provides direction for legal interpretation for these special norms (Kammerhofer, Citation2010).
The question then is whether Law Number 23 of 2002 concerning Child Protection can be said to be a special norm that can override the Civil Code in the context of legal events overseeing guardianship of children’s assets that are not under the control of their parents. To answer this, it is necessary to compare the two provisions, as table below:
Table 4. Comparison of the Civil Code and the Child Protection Act in terms of child guardianship supervision
Referring to Bagir Manan’s view and observing the comparison of the two provisions above, the normalization of the authority to supervise guardianship over children (both personal and property) carried out by BHP and/or other institutions has been specifically regulated in Article 35 paragraph (1), (2) and (3) Law Number 23 of 2002 concerning Child Protection. Therefore, the authority of BHP in carrying out guardianship supervision should no longer be based on the Civil Code but must be based on the Child Protection Law, as well as the Child Protection Law in the context of child guardianship supervision is lex specialis derogat legi generali of the Civil Code.
3.7. Comparison in several countries
By law, minors cannot act independently except with the intercession of their guardian. Courts that have appointed a guardian over a minor before the child turns 18 will be treated as a minor. Guardianship is a legal process that transfers decision-making authority over someone who is considered unable to take care of or manage his personal and financial affairs to someone else.
Children are the wealth of the nation, the future of the nation depends on how their children grow and develop themselves. The poet Milton once said that “a child like a man starts the morning of the day”. A child, because of his physical and mental immaturity, needs special protection and care, including appropriate legal protection, before and after birth, this need for special protection has been stated in the Geneva Declaration on the Rights of the Child and is universally recognized in the Declaration of Human Rights.
BHP is a Technical Implementation Unit that carries out relatively many tasks and authorities, including oversight of child guardianship. Several countries, such as the USA, UK and Singapore can be used as a comparison, by looking at the similarities and differences in aspects of the role, institution, regulation and authority of guardians in carrying out supervision of the assets of children under guardianship., as table below:
Table 5. Similarities and Differences in Guardianship and Guardianship Supervision in Different Countries
3.8. National Guardianship Law System Concept
The formation of a national legal system, one of which can be done through the formation of legislation. The formation of good laws and regulations must pay attention to 3 (three) central foundations, namely:
Philosophical Foundation
The philosophical basis is a consideration or reason that illustrates that the regulations formed take into account the views of life, awareness and legal ideals which include the spiritual atmosphere and the philosophy of the Indonesian nation which are sourced from Pancasila and the Preamble to the 1945 Constitution of the Republic of Indonesia.
Sociological Foundation
The sociological basis is a consideration or reason that illustrates that regulations are formed to meet the needs of the community in various aspects. The sociological foundation actually concerns the empirical reality that lives in society.
Juridical Foundation
The juridical basis is a consideration or reason that illustrates that regulations are formed to overcome legal problems or fill legal voids by considering existing rules, which will be changed, or which will be revoked in order to ensure legal certainty and a sense of community justice. The juridical basis concerns legal issues related to the substance or material that is regulated so that it is necessary to establish new laws and regulations. Some of the legal issues include outdated regulations, inharmonious or overlapping regulations, types of regulations that are lower than the law so that their enforcement power is weak, the regulations already exist but are inadequate, or the regulations do not exist at all. The most important considerations in the formation of laws and regulations are philosophical considerations because they involve the spiritual atmosphere and legal ideals of a country that lead to the creation of justice.
Guardianship arrangements and guardianship supervision regulated in various laws and regulations, not only create legal disharmony, more than that, it has created injustice and negates justice for every child under guardianship. Facts on the ground show that the guardianship supervision arrangements as mandated in Article 366 and Article 369 of the Civil Code cannot be implemented optimally. Another fact also shows that Article 35 paragraphs (1), (2) and (3) of Law Number 23 of 2002 concerning Child Protection, which is expected to “replace” the existence of Article 366 and Article 369 of the Civil Code, as a national legal product in In fact, it has not been implemented optimally. The implementation of guardianship supervision by BHP is legally based on decisions issued by the District Court and the Religious Courts. The District Court and the Religious Courts did not explicitly stipulate in their ruling that the guardians report and take an oath to the BHP. Another injustice can also be pointed out that the number of judges in the District Courts who do not know the importance of this guardianship supervisory institution, even the Religious Courts rarely accept applications for guardianship determination and there is an assumption that applications for guardianship determination only apply to non-Muslim citizens, considering that Islamic law itself does not Get to know trusteeship and trusteeship institutions.
Based on the universal principles of the rule of law theory in the framework of Pancasila values, it is necessary to discuss a concept development offer to revitalize the authority of BHP in conducting guardianship supervision which has not been carried out optimally as referred to in Article 366 and Article 369 of the Civil Code, taking into account the value of Pancasila values that live and animate the life of the nation and state.
According to Arief Sidhartha (Herlina, Citation2018) Every legal formation in Indonesia must be imbued with Pancasila, which requires order and order in an atmosphere of inner peace, pleasure in socializing among others, friendliness and welfare that allows true human interaction to take place. Therefore, the law inspired by Pancasila is a law based on the spirit of harmony. Adhering to the principle of harmony is the principle of propriety. This principle is also the principle of how to organize relationships between citizens in which citizens are expected to behave in appropriateness in accordance with social realities. Another characteristic that characterizes the Pancasila Law is the principle of harmony. This principle requires the implementation of harmony in social life. Then the principle of harmony, the principle of propriety and the principle of harmony as the characteristics of the Pancasila Law can be covered by one term, namely the nature of kinship. Therefore, it can be said that Pancasila Law is a family spirit law. The spirit of kinship refers to an attitude based on which the personality of every member of the community is recognized and protected by the community.
In essence, the legal event of guardianship against a child who is not yet an adult is a legal event that was born within the scope of family law, and given that the best interests of a child who are not yet capable of carrying out legal actions are also the responsibility of the state, the role of the state through BHP in guardianship supervision becomes the responsibility of the state. very important thing. In order to present the state through guardianship supervision and to provide legal protection for minors as well as considering legal pluralism in Indonesia, it is necessary to have a concept of renewal of guardianship supervision in Indonesia based on the Pancasila legal system as the nation’s philosophical values.
The concept of guardianship supervision of children’s assets under guardianship must be placed as part of the Indonesian legal guardianship sub-system while still accommodating and considering diversity (pluralism), although such diversity should not eliminate the presence of the state through legal unification. This dissertation paper will try to offer the concept of a national guardianship legal system, through arguments, First the theory and thought of the Indonesian legal state which provides the protection of Human Rights as natural law for all mankind, as reflected in Article 1 paragraph (3), Article 28 A, Article 28 B paragraph (1) and paragraph (2) and Article 29 of the 1945 Constitution and the First Precepts of Pancasila. Both theories and ideas of Indonesian justice cannot be separated from the meaning of welfare (welfare state) which is the state’s obligation to every citizen, as the intent of justice is contained in Article 33 of the 1945 Constitution and the Fifth Precepts of Pancasila.
The concept of the legal guardianship system in Indonesia must take into account the pluralism of the existing legal system, starting from the western legal system, the Islamic legal system and the customary law system based on the principles of the One Godhead, however, at the same time, reforms are needed in its supervision through the concept of a unification legal system and codification of guardianship supervision for every Indonesian citizen. Based on the norms and legal rules, in all legal systems that exist and live in Indonesia, of course, there is a common view that guardianship supervision is to provide protection for children’s rights before growing up as a representation of the rule of law as well as the form and evidence of the presence of the state by establishing an Institution. Supervision of Child Guardianship who reports directly to the President. The concept of the national guardianship legal system is as shown in the image below:
Image 1.1. National Guardianship Law System Concept
4. Conclusions
Based on the results of the study, it can be concluded that the BHP’s authority in supervising children’s guardianship has not run optimally. This can be seen from the conditions on the ground that the majority of District Courts and Religious Courts have not carried out the mandate of Article 366 and Article 369 of the Civil Code and the lack of knowledge of the existence of BHP as a representative of the state authorized to supervise guardianship. The level of effectiveness of the implementation of the trusteeship supervision authority shows a relatively small number, namely 68.18. This also answers that the role of the state through the BHP which is normalized in Articles 366 and 369 becomes a paradox in reality on the ground. The authority of BHP in carrying out guardianship supervision should no longer be based on the Civil Code but must be based on the Child Protection Law, as well as the Child Protection Law in the context of child guardianship supervision can be said to be lex specialis derogat legi generali of the Civil Code.
In the future, it is necessary to have the idea of establishing a national child guardianship legal system, as has been done in many countries, one of which is by establishing a children’s guardianship act. The concept of a national guardianship legal system can be carried out in a “limited” manner while still taking into account the pluralism of the existing legal system.
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Additional information
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Notes on contributors
Taufik Hidayat Simatupang
Taufik Hidayat Simatupang is a researcher at the Legal Research Center of the Social Sciences and Humanities Research Institute of the National Research and Innovation Agency (BRIN). He earned his Bachelor of Law degree from the Islamic University of North Sumatra in 1996, Master of Law from the University of Indonesia in 2003 and Doctor of Law from Padjadjaran University in 2023. He has teaching experience at Suryadarma University, Attahiriyah Islamic University, and the Institute of Business and Informatics. Has published research results in International Journals and National Journals. His areas of expertise include civil law, family law, child guardianship law, intellectual property law and copyright.
Renny Supriyatni
Renny Supriyatni is a senior lecturer and associate professor at the Faculty of Law, University of Padjadjaran with expertise in Islamic Law and Islamic Banking Law. Dr. Renny has international publications and authored many books in the field of Islamic Banking Law.
Zainal Muttaqin
Zainal Muttaqin is a senior lecturer and associate professor at the Faculty of Law, University of Padjadjaran with expertise in State Administration Law. Dr. Zainal has international publications and has written books in the field of State Administrative Law.
Sonny Dewi Judiasih
Sonny Dewi Judiasih is a senior lecturer at the Faculty of Law, University of Padjadjaran with expertise in Family Law and Child Protection Law. In March 2023 he was inaugurated as Professor of the Faculty of Law, University of Padjadajar. Prof. Sonny has international publications and has written many books in the fields of Family Law, Marriage, and Child Protection.
References
- Abrar, M. (1999). Hak Pengusaan Negara Atas Pertambangan Berdasarkan Undang-Undang Dasar 1945. Universitas Padjadjaran.
- Abubakar, A.Y. (2011). Kajian Undang-undang Pemerintahan Aceh dan essay tentang Perempuan, Perkawinan dan Perwalian Anak. Dinas Syari’at Islam.
- Afandi, A. (2000). Hukum Waris Hukum Keluarga Hukum Pembuktian. Rineka Cipta.
- Agustina, S. (2015). Implementasi Asas Lex Specialis Derogat Legi Generali dalam Sistem Peradilan Pidana. Jurnal Masalah-Masalah Hukum, 44(4), 1–20. https://doi.org/10.14710/mmh.44.4.2015.503-510
- Anton, M. M. (1995). Kamus Umum Bahasa Indonesia. Balai Pustaka.
- Candra, M. (2018). Aspek Hukum Perlindungan Anak Indonesia Analisis tentang Perkawinan Anak di Bawah Umur. Kencana Prenadamedia Group.
- Dewi Judiasih, S. (2018). Perkawinan Bawah Umur di Indonesia. Refika Aditama.
- Dewi Judiasih, S. (2019). Harta Benda Perkawinan Kajian Terhadap Kesetaraan Hak dan Kedudukan Suami dan Istri atas Kepemilikan Harta dalam Perkawinan. Refika Aditama.
- Hadikusuma, H. (1990). Hukum Perkawinan Indonesia. Mandar Maju.
- Hasan, D. (1988). Hukum Keluarga. Armico.
- Herlina, N. (2018). Cita Hukum Pancasila dapat Berkembang dalam Batang Tubuh Undang-Undang Dasar Republik Indonesia 1945. Lex Librum, 4(2), 673–679.
- H Salim, H. S. (2014). Buku Kedua Penerapan Teori Hukum pada Penelitian Disertasi dan Tesis. RajaGrafindo.
- Irfani, N. (2020). ASAS LEX SUPERIOR, LEX SPECIALIS, DAN LEX PESTERIOR: PEMAKNAAN, PROBLEMATIKA, DAN PENGGUNAANNYA DALAM PENALARAN DAN ARGUMENTASI HUKUM. Jurnal Legislasi Indonesia, 17(3), 305–324. https://doi.org/10.54629/jli.v17i3
- Ishak, I. (2017). Perwalian Menurut Konsep Hukum Tertulis di Indonesia. Kanun Jurnal Ilmu Hukum, 19(3), 571–590.
- Jaap, C. H. (1997). Reasoning with Rules: An Essay on Legal Reasoning and Its Underlying Logic. Kluwer Academic Publishers.
- Kammerhofer, J. (2010). Uncertainty in International Law: A Kelsenian Perspective. Routledge.
- Kusumaatmadja, M. (n.d.). Fungsi dan Perkembangan Hukum dalam Pembangunan Nasional. Bina Cipta.
- Lukman, M. (1997). Eksistensi Peraturan Kebijaksanaan dalam Bidang Perencanaan dan Pelaksanaan Rencana Pembangunan di Daerah Serta Dampaknya Terhadap Pembangunan Materi Hukum Tertulis Nasional. Universitas Padjadjaran.
- Malec, A. (2001). Legal Reasoning & Logic. Studies in Logic Grammar & Rhetoric, 4(17), 97.
- Manan, B. (1996). Politik Perundang-undangan dalam Rangka Mengantisipasi Liberalisme Perekonomian. FH Unila.
- Manan, B. (2000). Wewenang Propinsi, Kabupaten dan Kota dalam Rangka Otonomi Daerah. Universitas Padjadjaran.
- Manan, B. (2004). Hukum positif Indonesia: satu kajian teoritik. FH UII Press.
- Mukti, F. N., & Achmad, D. Y. (2010). Dualisme Penelitian Hukum Normatif dan Hukum Empiris. Pustaka Pelajar.
- Prakken, H., & Sartor, G. (1997). Logical Models of Legal Argumentation. Kluwer Academic Publishers.
- Prodjodikoro, W. (1980). Asas-asas Hukum Tata Negara di Indonesia. Dian Rakyat.
- Rasjidi, L. (1991). Hukum Perkawinan dan Perceraian di Malaysia dan Indonesia. Remaja Rosdakarya.
- Rokhim, A. (2013). Kewenangan Pemerintahan dalam Konteks Negara Kesejahteraan (Welfare State). Dinamika Hukum, 19(36), 1–14.
- Romlah, R. (2016). Pembaruan Hukum Keluarga Islam di Indonesia tentang Keabsahan Akad bagi Wanita Hamil. Jurnal Al-Adalah Institut Agama Islam Negeri Raden Intan Lampung, 13(1), 23–38.
- Soehino. (2000). Ilmu Negara. Liberty. Yogyakarta.
- Soekanto, S. (1988). Pokok-Pokok Sosiologi Hukum. Rajawali Pers.
- Soemiyati. (1986). Hukum Perkawinan dan Undang-Undang Perkawinan, (Undang-undang No. 1 tahun 1974 tentang Perkawian.
- Stelmach, J., & Brożek, B. (2006). Methods of Legal Reasoning. Springer-Verlag.
- Syahrani, R. (2006). Seluk Beluk dan Asas-Asas Hukum Perdata Indonesia. Alumni.
- Syarifudin, A. (1996). Butir-Butir Gagasan Tentang Penyelenggaraan Hukum dan Pemerintahan yang Baik. Citra Aditya Bakti.
- Titik Triwulan Tutik. (2006) . Pengantar Hukum Perdata di Indonesia. Prestasi Pustaka.
- Utrecht, E. (1953). Pengantar Hukum Indonesia. Balai Buku Indonesia.
- Warson Munawwir, A. (1984). Kamus Al-Munawir. Pondok Pesantren Al- Munawir.