IMPLEMENTATION OF STATE AUTONOMY IN THE PRESPECTIVE OF Law No. 32 OF 2004

IMPLEMENTATION OF STATE AUTONOMY

 IN PRESECTIVE Law no. 32 OF 2004[1]

 

Yohanes Pattinasarany

 

Introduction

A village is one of the customary law community units that has autonomy in regulating and managing the interests of its people since the village was formed based on the origins and customs that exist in the village. The autonomy of the village is the same as the autonomy possessed by customary law community units in other places such as Nagari in Minangkabau, West Sumatra, Gampong in Namroh, Aceh Darussalam, Lembang in South Sulawesi, Kampung in South Kalimantan and Papua or called by other names according to the name of each region. According to Hazairin, customary law communities such as villages in Java, marga in Sumatra, Nagari in Minangkabau, Kuria in Tapanuli, Wanua in South Sulawesi, are community units that have the completeness to be able to stand alone, namely having legal unity, unity of rulers, and unity of the environment based on the common right to land and water for all its members.[2]

 Therefore, the existence of state autonomy and customary law community units has received constitutional recognition as an original government unit which is accommodated in the explanation of the provisions of Article 18 number II of the 1945 Constitution (before the amendment) which states that:

Within the territory of the Republic of Indonesia, there are approximately 250 "Zelfbesturende landschappen" and Volksgemeenschappen, such as villages in Java and Bali, villages in Minangkabau, hamlets and clans in Palembang, and so on. These regions have their own unique structure and can therefore be considered special regions.

However, in order to implement the state's recognition of the existence of state autonomy and customary law community units, which are also referred to as indigenous government units that have autonomy in regulating and managing the interests of their own people, the government has neglected this through the enactment of Law Number 5 of 1979 concerning Village Government (hereinafter abbreviated as Law No. 5 of 1979) which standardizes the national village government administration system against the pluralism of customary government systems in Indonesia into a form of village government system adopted from the village government system in Java and several other regions.

This has resulted in the loss of the name, form, structure, and position of the state government and other customary law community units as indigenous government units that have autonomy in regulating and managing community interests based on their origins and customs. According to HAW Widjaja, the Law on Village Government (Law No. 5 of 1979) has weakened or eliminated many elements of democracy for the sake of diversity in the form and structure of village government. Democracy has become nothing more than a dream and a slogan in rhetoric to solace the sorrow.[3] He further stated that Law No. 5 of 1979 directed toward standardization, namely the standardization of village government. This standardization was intended to strengthen village government so that it could mobilize community participation in development, organize effective and efficient village administration, and provide encouragement for the growth and development of village communities. In reality, with various regulations and provisions, village communities were not empowered. (empowering), but more cultivated, weakened, because various sources of income and customary rights as a traditional society were taken, such as bees, agricultural land and other sources of income, tax collection and levies.[4] Finally, he believes that implementing the form and structure of village government without considering local customs will not provide a sense of community life. Villages in Java cannot be compared to villages outside Java established under Law No. 5 of 1979. This difference persists to this day. In reality, the law on village government does not reflect the spirit of "original rights" in special regions, and does not consider the strength of local customs.[5]

The legal policy of Law No. 5 of 1979 has resulted in the existence of state autonomy as a native government unit gradually weakening and even dying rather than growing and developing into a strong one. This condition proves that it is very difficult to implement state autonomy when customary law is confronted with national law even though customary law has been alive and rooted in the lives of state communities as a manifestation or reflection of the soul and personality of state communities that are embodied in every action of the community in question.

This condition is still felt today, even though the provisions of Article 18B paragraph (2) of the 1945 Constitution (after amendment) stipulate that:

The state recognizes and respects customary law communities and their traditional rights as long as they are still alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia, as regulated by law.

As well as Law Number 32 of 2004 concerning regional government (hereinafter abbreviated as Law No. 32 of 2004), which recognizes the state or customary law community unit referred to by another name which has the authority to regulate and manage the interests of the local community based on origins and customs based on original autonomy in the government system of the Unitary State of the Republic of Indonesia.

 

Concept of State Autonomy

Historically, the existence of a state or customary legal community, known by other names, has been the basis of livelihood for local communities. The state, or other names, has the autonomy to establish its own government to regulate and manage the interests of the community based on ancestral rights and local customs. The term autonomy is etymologically derived from the Greek, cars and noumos.  Cars meaning itself and noumos which means law or regulation. So etymologically, autonomy means one's own law or regulation, which in the field of government is interpreted as a government that makes its own laws or regulations.

Menurut Encyclopedia of social sciences, autonomy in the original sense is the legal self-sufficiency of the social body and its actual independence. So there are two essential characteristics of autonomy, namely  legal self-sufficiency and actual independence. In relation to politics and government, autonomy means self or condition of living under one's own laws.[6] In Dutch literature autonomy means self-government (zelfregering) which Van Vollenhoven divided into zelfwetgeving (make your own laws), self-indulgence (do it yourself), zelfrechtspraak (judge yourself) and zelfpolitie (take action on your own).[7]

Based on the definition of autonomy as stated above, state autonomy can be defined as a state with self-government. In implementing self-government, a state, through its institutions, creates its own laws or regulations, implements its own laws or regulations, adjudicates itself, and takes action without intervention from other government units, including the state, in carrying out these matters. This has been the case since the formation of a state.

Therefore, state autonomy is an original or inherent autonomy that arises since the formation of a state, not an autonomy that is derived or given from the Province, Regency/City as a higher government unit or from the State. State autonomy is different from regional autonomy. Regional autonomy is a gift from the Central Government as a consequence of the establishment of the Indonesian state as a unitary state in the form of a republic as stipulated in the provisions of Article 1 paragraph (1) of the 1945 Constitution, which is in order to shorten the span of control of Central Government services to the community in the regions as an effort to accelerate the realization of community welfare through improving services, empowerment and community participation, due to the vast territory of the Indonesian state and regions that have different characteristics, the Central Government gives autonomy to the regions to regulate and manage government affairs and community interests.

Granting autonomy to regions is a political strategy of the Central Government to open up space for community participation in the administration of state governance. Therefore, the granting of autonomy to regions can be revoked at any time by the Central Government, as the owner. However, regional autonomy is inherent and has been exercised since the formation of a country. Therefore, regional autonomy cannot be revoked by the state.

 

State Autonomy in the Prefecture of Law No. 32 of 2004.

As an effort to restore the name, form, structure and position of the state government which was lost due to the implementation of the legal political policy of Law No. 5 of 1979 which standardized the pluralism of the customary government system in Indonesia into a village government system, the presence of Law No. 32 of 2004 is considered capable of restoring the name, form, structure and position of the state government as an original government unit which has autonomy in regulating and managing the interests of the local community based on origins and customs as a subsystem of the system of governance of the Unitary State of Indonesia which is based on diversity, participation, original autonomy, democratization and community empowerment, in accordance with the mandate of the provisions of Article 18B paragraph (2) of the 1945 Constitution.

Recognition and respect for the country is the implementation of the principle of recognition. Recognition and respect for the country as a native government unit that has original autonomy that is institutionally based on origins and customs that are independent of the bureaucratic system established by the State. Recognition and respect for the country is clearly seen in the explanation of the provisions of Article 202 paragraph (1) of Law No. 32 of 2004 which states that "The Village referred to in this provision includes, among others, Nagari in West Sumatra, Gampong in NAD Province, Lembang in South Sulawesi, Kampung in South Kalimantan and Papua, Negeri in Maluku".

Although the recognition and respect for the country in Maluku in the explanation of the provisions of Article 202 paragraph (1) of Law No. 32 of 2004 does not mean that the country is the only name for the customary law community unit in Maluku. However, there are various names for the customary law community unit in Maluku which since its formation have had autonomy in regulating and managing the interests of its community such as Ohoy in Southeast Maluku, Pnue or Oho or Lekhe in Southwest Maluku and Kampung in the Aru Islands as well as other names according to each region.  

However, Law No. 32 of 2004 does not differentiate between national autonomy, which is original autonomy, and regional autonomy, which is autonomy granted by the state in terms of the institutional arrangements of the Village Consultative Body (Village : read Country) which does not accommodate names according to the origins and customs in the government of the country or customary law community units called by other names. Even the regulations for becoming a member of the Village Consultative Body do not at all accommodate the requirements of having to come from, know, understand the origins and customs that exist in the country or customary law community units called by other names. This gives room for others who do not come from, know, understand the origins and customs of the country to be able to become members of the Village Consultative Body. The regulations for becoming a member of the Village Consultative Body should be left to the authority of the country to determine according to the origins and customs that exist in the country.

In fact, the institutional position of the Village Consultative Body is the same as the Village Saniri Body which consists of representatives of Soa, Traditional Heads, Village Elders, who must understand the origins and customs of the village whose duties are to assist the Head of the Village Government in establishing Village Regulations together with the Village Head, accommodating and channeling community aspirations. The regulations in Law No. 32 of 2004 do not reflect the existence of space to revive the village institution as an autonomous bureaucratic structure that institutionally has existing duties and authorities according to the origins of the village.

Apart from that, in terms of regulating the authority for Natural Resource Management within the country's territory. For the country, land, water, including the sea, and the natural resources contained therein are a unity that cannot be separated from the territory of the country. This is called a country's petuanan area. With respect to all natural resources within the state petuanan area (land, water including sea), the authority to control and manage all natural resources within the state petuanan area is carried out by the state government based on state customary rights or the rights of origin and customs of the country both in the form of management and utilization as well as legal protection.

This has been done for a long time, or since the country was formed, and is a tradition passed down through generations. However, the central government gives authority to provincial and district/city regions to manage resources in marine areas, as stipulated in the provisions of Article 18 paragraphs (1), (3) and (4) of Law No. 32 of 2004 which states that:

(1) Regions that have sea areas are given the authority to manage resources in sea areas.

(3) Regional authority to manage resources in marine areas as referred to in paragraph (1) includes:

a. exploration, exploitation, conservation and management of marine resources;

b. administrative arrangements;

c. spatial planning;

d. law enforcement of regulations issued by regions or those delegated authority by the Government;

e. participate in maintaining security; and

f. participate in the defense of national sovereignty.

(4) The authority to manage resources in the sea area as referred to in paragraph (3) is a maximum of 12 (twelve) nautical miles measured from the coastline towards the open sea and/or towards archipelagic waters for provinces and 1/3 (one third) of the provincial authority area for districts/cities.

Although the granting of authority to provincial and district/city regions to manage resources in marine areas as stipulated above is still a matter of debate. However, the regulation granting authority to provincial regions to manage resources in 12 miles of sea area and district/city in 1/3 of the provincial sea area in the form of exploration, exploitation, conservation, management of marine resources, administrative arrangements, spatial arrangements, law enforcement, results in the state not having the authority to manage and utilize as well as legal protection of natural resources in the state's marine sovereignty area which has been carried out for generations.

Because the granting of authority to district/city areas to manage resources in the sea area of ​​1/3 (one third) of the provincial authority area measured from the coastline towards the open sea, which has the consequence that the 1/3 mile sea area is within the national maritime territory. Although in the formulation of the provisions of Article 18 paragraph (6) of Law No. 32 of 2004 it provides freedom to traditional fishermen in fishing efforts without being limited to certain sea areas. However, the issue of customary rights of the local community in managing natural resources in the sea territory within the boundaries according to local customary law, is not just the right to fish, but also rights related to the management and utilization as well as legal protection of sea resources within the sea territory boundaries which are regulated according to local customary law provisions.

This has resulted in the loss of legal protection for natural resources within the country's maritime sovereignty areas. Yet, the management, utilization, and legal protection of marine resources within the country's maritime sovereignty areas are part of the country's governance system, in accordance with its autonomy.

Thus, the State recognizes state autonomy as original autonomy, but at the legislative level, the regulation in Law No. 32 of 2004 still has an ambiguity in the concept of original autonomy with the concept of autonomy granted through the limitation of state autonomy in organizing state government to regulate and manage the interests of its people according to their origins and customs. Therefore, the implementation of the principle of recognition from the State to the unity of customary law communities and their rights is merely symbolic rather than substantive. Therefore, Law No. 32 of 2004 has not implemented state autonomy as original autonomy owned by the state based on the origins and customs that exist in the country.

 

Closing Event

The explanation of Article 18 of the 1945 Constitution (before the amendment) and the provisions of Article 18B paragraph (2) of the 1945 Constitution (after the amendment) recognize the autonomy of the country and the unity of the customary law community which is called by another name as original autonomy, but at the legislative level, especially Law No. 32 of 2004, there is no implementation of state autonomy. Even though Law No. 32 of 2004 has recognized the country as a government unit which has original autonomy. Thus, it is the responsibility of the State to strictly regulate the autonomy of the country and the unity of the customary law community which is called by another name so as not to give rise to the possibility of disputes between authorities or disputes over rights between the government (Central and Regional) and the local customary law community.

 

Reading List

Didik Sukriono, Village Government Law Updates Village Government Law Politics in Indonesia, Setara Press, Malang, 2010.

Wijaya, HAW, Village Autonomy: Genuine Autonomous Society, Open and Whole, PT Radjawali Grafindo Persada, Jakarta, 2003.

The 1945 Constitution of the Republic of Indonesia.

Law No. 5 of 1979 concerning Village Government

Law No. 32 of 2004 concerning Regional Government