Paradox of state authority in supervision of child trust assets in Indonesia

Figures & data

Table 1. Working area of the Balai Harta Peninggalan Kementerian Hukum dan HAM RI

No.	Regional Office	Location	Working Area
1.	Sumatera Utara	Medan	Provinsi Sumatera Utara, Provinsi Nangroe Aceh Darussalam, Provinsi Sumatera Barat, Provinsi Bengkulu, Provinsi Riau, and Provinsi Kepulauan Riau
2.	Daerah Khusus Ibukota Jakarta	Jakarta	Provinsi Daerah Khusus Ibukota Jakarta, Provinsi Jawa Barat, Provinsi Banten, Sumatera Selatan, Provinsi Lampung, dan Provinsi Jambi, Provinsi Bangka Belitung and Provinsi Kalimantan Barat
3.	Jawa Tengah	Semarang	Provinsi Jawa Tengah and Provinsi Daerah Istimewa Yogyakarta
4.	Jawa Timur	Surabaya	Provinsi Jawa Timur, Provinsi Kalimantan Tengah, Provinsi Kalimantan Selatan, Provinsi Kalimantan Timur, and Provinsi Kalimantan Utara
5.	Sulawesi Selatan	Makassar	Provinsi Sulawesi Selatan, Provinsi Sulawesi Utara, Provinsi Sulawesi Tengah, Provinsi Sulawesi Barat, Provinsi Sulawesi Tenggara, Provinsi Gorontalo, Provinsi Bali, Provinsi Nusa Tenggara Barat, Provinsi Nusa Tenggara Timur, Provinsi Maluku, Provinsi Maluku Utara, Provinsi Papua, and Provinsi Papua Barat

Table 2. Terms of guardianship and guardianship supervision in Indonesia

No.	Regulation	Guardianship Type		Guardianship Supervision
1.	Civil Code	1.	Guardianship by law	Regulated
		2.	Guardianship due to parental will
		3.	Judge-appointed guardianship
2.	Law No. 1 of 1974	1.	Oral guardianship or by will	Not Regulated
		2.	Judge-appointed guardianship
3.	Law No. 32 of 2002	1.	Guardianship cause of appointment	Regulated
		2.	Guardianship due to judge’s determination
4.	Islamic Law Compilation	1.	Guardianship of children under 21 years of age	Not Regulated
		2.	Guardianship of self and children’s property

Source: Processed data (2022)

Graph 1.1. Guardianship supervision in the last 10 Years.

Source: Research Results (data processed, 2022)

Graph 1.2. Guardianship assignment source.

Source: Research Results (data processed, 2022)

Graph 1.3. Implementation of Articles 366 and 369 of the Civil Code.

Source: Research Results (data processed, 2022)

Graph 1.4. Public knowledge of the authority of BHP as Supervisory Guardianship.

Source: Research Results (data processed, 2022)

Table 3. Effectiveness of BHP Guardianship Supervision Program

No.	Indicator	Target	Realizyion	Percentage (%)	Effectiveness Porgram
1.	Target Accuracy	22	15	68,18	Effektive enough
2.	Program Socialization	22	17	77,27	Effektive enough
3.	Program Objectives	22	10	45,45	Ineffective
4.	Monitoring	22	18	81,81	Very effective
Total		-	-	-
Average				68,18	Effektive enough

Source: Research Results (data processed, 2022)

Table 4. Comparison of the Civil Code and the Child Protection Act in terms of child guardianship supervision

Civil Code

Child Protection Act

Article 366 In every trust ordered therein, the Heritage Hall is assigned as the supervising guardian. Article 369 In all cases, if the guardianship is ordered by a judge, the Registrar of the District Court concerned must immediately notify in writing of the appointment to the BHP, with a statement as to whether the appointment took place in the presence of the guardian, or if the guardianship was ordered to an association, foundation. or social institutions, with a statement, whether it happened at his own request or ability.

Article 35 paragraph (1) In the event that the child has not received a court ruling regarding the guardian, then the child’s assets can be managed by the 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

Source: Research Results (data processed, 2022)

Table 5. Similarities and Differences in Guardianship and Guardianship Supervision in Different Countries

Aspects	Similarities	Differences
State Role	United States Role based on a court order United Kingdom Role based on a court order Singapore Role based on a court order Indonesia Role based on a court order
Institution	United States U.S. Trustee’s United Kingdom Children’s Commissioner Singapore PublicTrustee’ Office Indonesia Balai Harta Peninggalan
Regulation	United States Uniform Guardianship, Conservatorship and Other Protective Arrangements Act United Kingdom Childrens Act 1989 and 2004 Singapore Singapore, the Women’s Charter, was substantially amended in May 1997	Indonesia There are no laws and regulations that specifically regulate child guardianship.
Guardian Authority	United States Determine place of residence children, medical care, education make decisions on the purchase of goods and services, and others. United Kingdom UK trusts have a responsibility to protect and promote the well-being of children within a legal framework The Children’s Acts 1989 and 2004. Singapore Protection of children’s basic rights such as: health, education, and others.	Indonesia The guardian’s authority is only regulated in general to provide protection and the best interests of the child until he reaches maturity.

Source: Research Results (data processed, 2022)

Image 1.1. National Guardianship Law System Concept

THE CONCEPT OF NATIONAL GUARDIAN LEGAL SYSTEM (Limited Unification By Considering Legal Pluralism Living in Indonesia)
SUB-SYSTEM/ ELEMENTS	UNIFICATION			PLURALISM
Subtance	Principle	Norms	Rule
	1. Child guardianship is an activity of legal protection and fulfillment of children’s rights as part of human rights as natural law based on the One Godhead; 2. Guarduanship supervision is an activity to present the state as the embodiment of the form of a legal state (Article 1 paragraph 3 of the 1945 Constitution	1. The idea of the Child Guardianship Bill mandates the establishment of the LPPA; 2. Child guardianship is a legal event of supervision of the child’s personal self and assets before the age of 18 years, unmarried and not under the control of his parents. 3. Mandatory guardianship based on a court order; 4. Require the court to submit a copy of the determination to the Child Guardianship Supervisory Agency; 5. Require the court in a copy of its determination to contain the obligation of the Guardian to report and take an oath at the Child Guardianship Supervisory Agency.	Guidelines for acting and behaving a guardian based on religion, propriety/property and laws and regulations to educate, nurture, fulfill and protect children’s rights to realize the best interests of the child until the child is an adult.
Institution	LembagaPengawasanPerwalianAnak(LPPA) Child Guardianship Supervisory Agency (CGSA)
Process				Application for guardianship determination for prospective guardians who are Muslim to the Religious Courts and those of other religions to the District Courts