Journal Homepage: DOI Link: http://dx.d
Article DOI: 10.2107
E-mail address: [email protected] Peer reviewed under reponsibility of © 2016 Universitas Muhammadiyah the CC BY license (http://creativecom Original Research Article
Law Enforcement of Right of from Sleman, Indonesia
Susilo Andi Darma
Faculty of Law, Universitas Ga
Article history: Received 28 May 20
ABSTRACT
This research aims to understand the enforcement toward Article 28 of La obtained through interviews and lite implementation toward article 5 and yet in Sleman.
Keywords: people with disability;
HOW TO CITE: Darma, S. (2016). Evidence from Sleman, Indonesia. Re ABSTRAK
Penelitian ini bertujuan untuk mema terhadap Pasal 28 Undang-Undang diperoleh melalui wawancara dan p ini menunjukkan bahwa implementa ketentuan Pasal 28 di Sleman. Kata kunci: penyandang cacat; peng
1. Introduction
All persons are entitled
Article 27 (2) of the 1945 Cons
citizen shall have the right to w
be obtained domestically or abr
gender, ethnicity, race, religion,
Article 5 of Law No. 13
every labor is entitled to adeq
1
Indonesia, Undang-Undang Dasar of The State of Republic of Indonesia 2
Indonesia, UU Nomor 13 Tahun Translation), 2003). View Item
page: http://ojs.umsida.ac.id/index.php/rechtsidee x.doi.org/10.21070/jihr.v3i2.322
.21070/jihr.v3i2.322
ity of Universitas Muhammadiyah Sidoarjo.
diyah Sidoarjo, All right reserved, This is an open access ivecommons.org/licenses/by/4.0/)
ght of Equality in Work for People with Disabili
tas Gadjah Mada, Sleman, Yogyakarta, Indonesia
ay 2016; accepted 28 June 2016; Available online 31 Dece
nd the implementation of supervision law toward Articles 5 of Law No.4 Year 1997 on People with Disability in Slem nd literature related to the problem. The results of this re 5 and 14 are not yet effective and the law toward article 2
; supervision; law enforcement; labour law; Indonesi
016). Law Enforcement of Right of Equality in Work for P sia. Rechtsidee, 3(2), 97-112. doi:http://dx.doi.org/10.21070
emahami pengawasan hukum terhadap Pasal 5 dan 14, d ang No.4 Tahun 1997 tentang Penyandang Cacat di Kab an pengkajian sumber yang terkait dengan masalah terse
entasi terhadap Pasal 5 dan 14 belum efektif serta
pengawasan; penegakan hukum; hukum ketenagakerjaa
ntitled to adequate standard of living. This right
5 Constitution of the Republic of Indonesia which
to work and to earn a humane livelihood”1. The
or abroad, and open to all persons without discrim
ligion, political views or physical condition.
o. 13 Year 2003 on Manpower2 (Manpower Law
adequate work opportunities without any kind o
sar Negara Kesatuan Republik Indonesia Tahun 1945 (T onesia: Unofficial Translation, 1945). View Item
hun 2003 Tentang Ketenagakerjaan (Law Number 13
__
97 ccess article under
isability: Evidence
esia
December 2016
icles 5 and 14, and the law Sleman Regency. Data are this research show that the ticle 28 is not implemented
donesia.
for People with Disability: 21070/jihr.v3i2.322
4, dan penegakan hukum Kabupaten Sleman. Data tersebut. Hasil penelitian tidak dilaksanakannya
erjaan; Indonesia.
right is guaranteed in
hich states that “Every
These standards may
discrimination based on
Law) emphasizes that
kind of discrimination.
__
98
Labors are persons who are abl
their own or society’s needs. A
produce goods and/or services f
Article 5 of the Manp
opportunities for employment
industrial relations are often un
though Law No. 4 Year 1997
Disability Law), where Article
opportunities in all aspects of li
Moreover, Article 14 of
disability have equal opportuni
disability. The People with Dis
equal opportunity and treatmen
type and degree of their disabili
disabled that employed in a
employees and/or business’ qua
The explanation of Art
Enterprises (BUMN) and Regi
businesses include cooperative
with disability who fulfills th
question, for every hundred (
employ at least one (1) people
for the employment in question
employees. The explanations o
which said that non-discrimin
and position. Article 28(1) of
intentionally violate the provi
6monthsimprisonment and/or a
Dewi4 shows that there
businesses employing at least 1
Agency of Sleman Regency sh
3
Indonesia, UU No. 4 Tahun 1997 Te 4
Mufti Pramuwardhani Dewi, “Pela Swasta Di Kabupaten Sleman,” Mimb
re able to carry out work to produce goods and/or
eds. As such, “labors” covers all persons who ar
vices for themselves or others, and are entitled to em
Manpower Law means that every person has
ment and livelihood, including the disabled. Howe
ften unaware of their obligations to the people wit
1997 on People with Disability3 (hereinafter state
rticle 5 specifically states that the disabled have
ts of life and livelihood.
14 of the People with Disability Law states that
ortunity to employment, depending on the type an
Disability Law also obliges state and private b
eatment to the disabled by employing them in acc
isability, education and capabilities. In such, the to
in a company should be in proportion to the
ss’ qualifications.
Article 14 states that state businesses inclu
Regional-government Owned Enterprises (BUM
ratives. Businesses must, at the very least, emplo
fills the requirements and qualifications for the
red (100) employees. Businesses utilizing high
eople with disability who fulfills the requirements
estion, even though their employees number less th
ions of that Article also elaborate the meaning of
riminative treatment including equality of wages f
(1) of the People with Disability Law states
provisions of Article 14 are threatened with, a
d/or a fine of IDR 200,000,000.00.
t there are about 756 businesses in Sleman re
least 100 persons. However, information from the
cy show that in 2005 none of the 105 private busi
7 Tentang Penyandang Cacat (Law Number 4: SG No. 9, “Pelaksanaan Penempatan Tenaga Kerja Penyandang Ca imbar Hukum 18, no. 3 (2006): 421–22. View Item Goog
and/or services to fulfill
ho are able to work to
d to employment.
has equal rights and
However, employers in
le with disability, even
r stated as People with
have equal rights and
s that all peoples with
ype and degree of their
ivate businesses to give
in accordance with the
, the total number of the
o the total number of
include State Owned
(BUMD), while private
employ one (1) people
or the employment in
high technology must
ments and qualification
less than hundred (100)
ing of equal treatment,
ages for the same work
that persons who
ith, at the maximum,
an regency, with 105
m the Labor and Social
te businesses have been
No. 9, 1997). View Item ng Cacat Pada Perusahaan
recorded to employ disabled wo
These conditions show th
the law. Supervision is carrie
economic assets, develop into
law. Supervision must be carrie
know and understand how to im
itself.
Manpower supervision
implementation of manpower l
the Minister of Manpower and
Guidelines to Submit Manpow
2010 also defines manpower s
Law states that supervising
investigators. One of the author
manpower sectors. Therefore
unit may carry out investigation
Problems that arise from
and civil servant investigators
based on research company
Company X. After Y was fired
Company X. This then becam
were confused in determining
Another problem regarding a
being transferred to the Semar
been first investigation by civil
Based on the background
a. How has supervision of
5
Minister of Manpower and Transmi No. PER.09/MEN/V/2005 Tentan Ketenagakerjaan (Minister of Manpo View Item
6
Rifqi Ridlo Phahlevy, Mochamm Protection of Foreign Workers After no. 1 (June 15, 2015): 21–52, doi:10.2 7
Ari Hernawan, “Interviewed by Su July, 2015).
8
Dwi Maryoso, “Interviewed by Sus July, 2014).
led workers.
how that supervising agents have a vital role in th
carried out with the goal that businesses can b
into strong businesses and are not hampered by
carried out since not all the parties, whether empl
w to implement special regulations, especially rela
vision is a supervisory activity and meant
ower legislation (Article 1(32) Manpower Law). T
er and Transmigration Regulation No. PER.09/ME
npower Supervision Reports5. Presidential Regula
ower supervision similarly. In addition, Article
ising agents may be given special authority
authorities is to authenticate reports and informatio
, civil servant investigators from the Manpow
igations on violations of Article 28 of the Manpowe
e from this authority are the confusion between po
gators and their respective investigative authoriti
X is against worker Y. Y’s diploma certific
s fired, Y demanded the diploma certificate whic
became a problem. 7At the investigation stage, po
ining whether this falls under criminal or civi
ing a suspected manpower crime in Central Java
Semarang Municipal Police Headquarters, althoug
civil servant investigators in Central Java8.
round above, the research question are:
ion of Articles 5 and 14 the People with Disabilit
ransmigration of Indonesia, Peraturan Menteri Tenaga Ker ntang Tata Cara Penyampaian Laporan Pelaks anpower and Transmigration Regulation Number PER.09/ hammad Tanzil Multazam, and Noor Fatimah Mediaw After Enactment of Law Number 6 of 2012 in Sidoarjo Reg
oi:10.21070/jihr.v2i1.3. Crossref Google Scholar
by Susilo Andi Darma” (Lecturer Faculty of Law Univers y Susilo Andi Darma” (Supervisor Manpower Agency Cen
__
99
e in the implementation
can become well-oiled
ed by violations of the
r employers or workers,
related to manpower
eant to enforce the
). This is in line with
09/MEN/V/2005 on the
egulation No. 21 Year
182 of Manpower
ority as civil servant
rmation of crimes in the
anpower Supervision’s
npower Law6.
een police investigators
thorities. For example,
certificate was held by
which is still held by
ge, police investigators
r civil/manpower law.
l Java, led to the case
lthough it should have
sability Law in Sleman
__
100
Regency been carried ou
b. How has law enforcem
Regency been carried ou
2.Materials and Methods
Legal research is a scie
thinking, which aims to study
towards legal facts is also condu
This research uses literat
literature review and analyses
dives straight into the researc
interviews, a direct, directed
interviewees on matters releva
guide, which lists structured a
respondents and interviewees.
The data obtained in the
classified in accordance with t
accordance with its reality. Th
hopefully answer the first resea
does not use numbers, but p
quality/truth of the data12. Oth
answer the challenges posed in
3.Results and Discussion
3.1 Supervision of Articles 5 a
Discussions on the imp
Disability Law should first pro
peoples with disability are enti
livelihood". While Article 14 st
and treatment to peoples wit
business in accordance with th
9
Soerjono Soekanto, Pengantar Pen Item
10
Soerjono Soekanto and Sri Mamu View Item
11
M. Hariwijaya and Bisri M. Djael Data Kesimpulan, 2nd ed. (Bantul: Ze 12
Lexy J. Moleong, Metodelogi Pene ried out?
orcement of Article 28 the People with Disability
ried out?
a scientific endeavor based a certain method, sy
study one or more legal realities by analysis. An
conducted, in order to provide a solution in the rel
literature research to obtain secondary data in the
lyses secondary data is known as a textual study
esearch location to obtain relevant data. The me
ected and systematic question-answer session to
relevant to the research question11. The tool used
ured and unstructured questions which will be v
ees.
in the form of secondary data will be collected s
with the research question and analyzed in a qual
ity. The results are written out in a descriptive f
t research question in a comprehensive manner. Qu
but provides a description of the findings, and
Other results should be in the form of solutio
sed in the research questions.
les 5 and 14 of People with Disability Law in Sle
e implementation of supervision on Articles 5 an
rst provide the text of those two articles. Article
entitled to equal rights and opportunities in all a
e 14 states “State and private businesses must give
with disability by employing peoples with D
th the type and degree of their disability, educatio
Penelitian Hukum (Jakarta: Universitas Indonesia Press
Mamudji, Penelitian Hukum Normatif (Jakarta: Grafindo P Djaelani, Teknik Menulis Skripsi Dan Tesis, Landasan Te
tul: Zenith Publisher, 2004). p.43-45. View Item
Penelitian Kualitatif (Bandung: Rosda Karya, 1989). p.112
sability Law in Sleman
od, system and way of
s. An in-depth analysis
the relevant situation9.
in the field of law. This
study10. Field research
he method used is via
ion to respondents and
used is the interview
ll be verbally asked to
cted systematically and
a qualitative manner in
ptive form, and should
er. Qualitative analysis
s, and emphasizes the
solutions, applicable to
in Sleman Regency
s 5 and 14 People with
rticle 5 states that “All
all aspects of life and
give equal opportunity
th Disability in their
cation and capability,
Press, 1986). p. 43. View findo Persada, 2006). p.50. n Teori Hipotesis Analisa
the number of whom shall be
qualification of the business".
Based on Article 5 of Pe
from physical, mental, or both
impairment of bodily functions
disabilities include mental and
Mental-physical peoples with d
life are protected by that articl
social aspects, manpower, econ
security, exercise, recreation an
Moreover, Article 14 of
owned Enterprises and Region
include cooperatives”. This ar
provide equal opportunity and
at least 1 people with disabilit
employment, for every 100 em
employ at least 1 people with
relevant employment, even wh
100 employees”. Equal treatm
equality for the same job and po
Based on research, equ
regardless who applies, disable
businesses to carry out the po
employ one (1) disabled labo
opportunities for the disabled to
However, in reality very
opportunity exists, there are s
questioned the implementation
they have never seen busines
disabled to apply for jobs in
provided the opportunity for t
l be proportioned according to the number of
of People with Disability Law, a people with disa
r both mental and physical disabilities. Physical d
ctions, such as nerve functions, sight, hearing an
tal and/or behavioral impairment, whether geneti
with disability suffer from both types concurrent
article, since the scope is broadened to religion,
, economy, right to public service, law, culture, pol
ion and information.
of People with Disability Law states “busines
egional-government owned Enterprises, while p
his article also obligates that “state and private
and treatment”. Opportunity means that “busine
bility who fulfills the requirements and qualific
0 employees. Or that Businesses utilizing high
with disability who fulfills the requirements and
when that business’ employee number of emp
treatment means “non discriminative treatment,
and position”.
h, equal opportunity means no discrimination dur
disabled or otherwise. Supervisory Agents alway
the policy that for every hundred (100) employ
d labor. These agents have often reminded bu
bled to work in their businesses.
ty very few disabled labor apply for job openings.
are still protests from the disabled association.
tation of equal work opportunity. Supervisory A
usinesses in Sleman prohibiting or preventing
bs in their businesses. In addition, Supervisory A
for the disabled to register to the Manpower an
__
101
of employees and/or
ith disability may suffer
ical disabilities include
ing and speech. Mental
genetic or via disease.
urrently. All aspects of
gion, health, education,
re, politics, defense and
inesses include
State-ile private businesses
ivate businesses must
sinesses must employ
lifications of relevant
high technology must
and qualifications of
employee is less than
tment, including wage
n during job openings,
always recommend the
mployees, they should
ed businesses to open
nings. Even though the
ation. They have often
sory Agents report that
nting opportunities for
isory Agents have also
__
102
Office, so that they may be for
and they tend to become entrep
Another effort from t
Manpower Placement Program
workers. Based on their analysi
labor. However some adjustmen
Based on research, the
peoples with disability. Even th
workers, the efforts of these b
businesses have been nomina
Service Office15. The illustratio
Figure 1. Business Awards
The labors responding
Sleman actually have opened
disabled labors are primarily i
place demands too high of the
labors do not last long in
13
Respondent, “Interviewed by Susi Regency: 7 October, 2015).
14
Respondent, “Interviewed by Sus Sleman Regency: 7 October, 2015). 15
Respondent, “Interviewed by Susi Regency: 8 October, 2015).
Company is n
Nominated
be forwarded to businesses. No disabled has reg
entrepreneurs or self-employment13.
rom the Manpower and Social Service Office
rogram, which purposed to analyze positions h
nalysis, nearly all positions in a business could be h
ustments will be necessary to allow for adaptation
h, there are eight businesses in the regency whi
ven though none of them have installed facilities to
hese businesses are worthy of recognition. Four
minated for an award from Sleman Regency Man
stration can be seen on Figure 1:
nding to the data from the service office, said
ened equal opportunities in employment. The pr
arily internal. Many disabled having lack self-es
of the business’ facilities or work condition. A nu
g in employment because of poor relations w
y Susilo Andi Darma” (Supervisor of Manpower and Soci y Susilo Andi Darma” (Placement Staff of Manpower a
15).
y Susilo Andi Darma” (Supervisor of Manpower and Soci y is not Employ PWDA Company Employ PWDA
ed Unnominated
s registered themselves,
Office is through the
tions held by disabled
ld be held by a disabled
ation14.
y which has employed
ities to support disabled
. Four out of the eight
Manpower and Social
said that businesses in
The problems faced by
esteem, and others
. A number of disabled
ons with non-disabled
employees, since they may be e
the resignation of disabled emp
self-employed or work in the pr
A problem which oft
businesses. Further, employe
specialized facilities including
This is in line with data from
indicates that most companies h
workers17.
3.2 Supervision of Articles 5 a
From the various opini
provisions of Article 14 People
as a quota system: one (1) di
addition, Article 27(2) of the 19
and humane employment and l
entitled to work and receive ad
United Nations General Assem
Disabled18 states that the disab
that society. They should rece
healthcare, the provision of wo
equal opportunity is a sys
Mertokusumo19, the law is a
different interrelated parts. Eq
opportunity to be employed but
a disabled worker to work and c
The provisions in the
Regulation No. 43 of 1998 on
Disability. Equal opportunity in
However, those provisions o
DisabilityLaw. The regulatio
16
Respondents, “Interviewed by Susi 17
Respondents, “Interviewed by Susi 18
United Nation, Standard Rules on 48/96., 1993). View Item
19
Sudikno Mertokusumo, Mengenal
y be excluded or treated differently as a disabled.
d employees. The data shows that most peoples w
the private sector16.
h often occurs is the different financial capa
ployed peoples with disability require busine
luding compatible work tools and other supporti
a from the service office on Disabled Workers i
anies have not outfitted themselves with facilities to
les 5 and 14 of People with Disability Law in Sle
opinions above, it is clear that equal opportuni
eople with Disability Law. In other words, the gov
disabled employee for every 100 non-disable
the 1945 Constitution states that all citizens are en
t and livelihood. Further, Article 28D (2) states th
ive adequate compensation, and be treated fairly i
Assembly Resolution 48/96 of 1993 on Equal Opp
disabled are members of society and have a righ
d receive adequate support as needed through g
of work opportunities and social services. Based
a system, and systems should be integrated
is a system with a structure, a whole united w
rts. Equal opportunity in manpower is not only
ed but also the supporting infrastructure and suppo
k and carry out activities as other persons would.
the People with Disability Law are re-emphasize
98 on Efforts to Promote the Social Welfare for
nity in manpower is regulated in Articles 26-31 o
ions only repeat what has been stated in t
ulation itself also adds new rules which
y Susilo Andi Darma” (Disabled Labors in Sleman Regency y Susilo Andi Darma” (Entrepreneurs in Sleman Regency: 9 on the Equalization of Opportunities for Persons with Di
nal Hukum (Suatu Pengantar) (Yogyakarta: Liberty, 2008
__
103
bled. This often triggers
ples with disability are
l capabilities between
businesses to provide
pporting infrastructure.
kers in Business. Data
ities to support disabled
in Sleman Regency
ortunity alludes to the
the government views it
disabled employees. In
are entitled to adequate
ates that all persons are
fairly in work relations.
al Opportunities for the
a right to participate in
ugh general education,
ased on the resolution,
grated. According to
ited which made up of
t only means as equal
support system to allow
hasized in Government
are for the People with
31 of that regulation.
in the People with
ich emphasis against
gency: 8 October, 2015). ncy: 9 October, 2015).
h Disabilities (December,
__
104
discriminatory conduct (explan
and religion). This has also bee
Manpower Law has never di
otherwise. The government regu
Law No. 23 Year 1948
"the scope of manpower supe
specifically those related to
conditions of labor in the wi
regulation; and carry out other
Based on these provision
implementation of laws and reg
premises where work is curren
housing rented or used by empl
Supervision by Manpow
Office is carried out on a prio
cases. Supervision is divided
Specific Supervision.
Based on Article 4,
Integrated Manpower Supervis
business which will soon be f
investigated. Regular/Repeat
Supervision or otherwise. Sp
manpower problems such as te
superiors.
Hamid and Pramudyanto
evaluate and determine the com
the extent of their efforts to co
investigations intent to reassess
20
Phahlevy, Multazam, and Mediawa Number 6 of 2012 in Sidoarjo Regenc 21
Minister of Manpower of Indo Per.03/Men/1984 Tentang Pengawas Number Per.03/Men/1984, 1984). Vie
explanations: to employ without regard as to gend
so been regulated in Article 5 of the Manpower Law
ver discriminated the identity of a worker, whe
nt regulation above has no contribution to equal op
1948 Jo. Law No. 3 Year 1961 on Manpower S
supervision covers: the implementation of laws
to labor affairs, collecting data on industrial
e widest sense to support the creation of new
ther functions in accordance to regulations".
ovisions, manpower supervisory agents are authoriz
nd regulations on labor. To carry out this function t
currently, usually or suspected to be carried out,
employees or their representatives to house or care
anpower Supervisory Agents at the Manpower an
a priority scale. This means that priority is given
vided into Primary Supervision, Regular/Repeat
4, Minister of Manpower Regulation No. Per.
pervision21, Primary Supervision is a complete
n be founded or operate, or to businesses which
Supervision is Currence supervision after a c
Specific Supervision is conducted to spec
h as tests, accidents, and reports from third parties
dyanto stated that the purpose of supervision activ
he compliance of businesses, which means that it
s to comply with all regulations and permits requ
sess and/or update previously obtained business
ediawati, “Labour Rights Protection of Foreign Workers Aft egency.”
Indonesia, Peraturan Menteri Tenaga Kerja Republi awasan Ketenagakerjaan Terpadu (Jakarta, Minister of M
View Item
gender, ethnicity, race
Law. In addition, the
r, whether disabled or
ual opportunity.
wer Supervision states
laws and regulations,
rial relations and the
new labor laws and
uthorized to oversee the
ction they may enter all
d out, and all forms of
or care for workers20.
wer and Social Service
given to more serious
epeat Supervision, and
. Per.03/Men/1984 on
plete supervision to a
hich has not yet been
ter a complete Primary
specialized forms of
parties or as ordered by
activities are to assess,
that it used to measure
s requirements. Further
siness information. The
primary aim of supervision ac
regarding compliance or otherw
Supervision that carried
scale as above. Supervision is
investigated or those which s
enforce Articles 5 and 14 Peo
general investigations. Agents
Agents only recommend exi
disabled23.
Supervision from Slema
of the Minister of Manpower
Supervision, which states that
and recommendations to busin
the effective implementation o
supervisory agents have the dut
to workers and businesses or m
The Sleman supervisory
is that agents cannot take furth
for equal opportunities, which d
joining the workforce and ins
society, especially from disable
disabled labors, then the agen
recommendation to fulfill the re
8(e) which states that “warning
The goal or purpose of
could be achieved. There are of
demands of justice and legal c
(summumius, summa iniuria:
answers this by stating
urbiedadatunriucht, hinziamoe
22
Hamrat Hamid and Bambang P Lingkungan, 1st ed. (Jakarta: Granit, 2 23
Respondent, “Interviewed by Susilo 24
L.J. Van Apeldoorn, Pengantar Ilm
activities is to obtain data or information in
otherwise of the object of inspection with the preva
carried out by manpower supervisory agents is ba
is usually conducted against businesses whic
hich suffer from certain incidents. No special a
People with Disability Law, but it is carried o
gents are not yet prioritizing supervision of th
d existing companies to consider equal oppo
Sleman’s Manpower Supervisory Agents is in line
power Regulation No. Per.03/Men/1984 on Integ
s that the purpose of supervision is “to give tech
usinesses, or managers, or workers on matters
n of manpower legislation”. In addition, Articl
he duty and obligation to “provide guidance, educa
or managers on manpower legislation”.
visory agents have carried out these two requireme
further action from offering recommendations. Th
hich due to factors noted above has prevented dis
nd instead turn to self-employment. If there are
disabled labors to agents, for example if a busine
e agent may scold the company. This is still i
l the requirements of People with Disability Law, in
ning or scolding should be given to deviations of
se of the law is to create justice, certainty and be
are often clashes within the laws which are inevit
legal certainty. The more certain a law, the less
: the highest justice is the grossest injustice)24
that the law “Erlykeratingareda, treft
moetlykera ting, endeaecbehvilenoenmoetlikra
ang Pramudyanto, Pengawasan Industri Dalam Penge ranit, 2007). p.3-4. View Item
Susilo Andi Darma,” 2015.
r Ilmu Hukum (Jakarta: Pradnya Paramita, 2000). p. 13. Vi
__
105
on in the form of facts
prevailing laws22.
s is based on a priority
s which have yet to be
cial attention given to
rried out together with
of these two articles.
opportunities for the
in line with Article 2(b)
Integrated Manpower
technical information
tters which guarantee
Article 9(b) states that
ducation and training
uirements. The problem
ns. This is problematic
ed disabled labors from
e are reports from the
business refuses to hire
ll in the form of a
, in line with Article
s of prevailing laws”.
and benefits, but not all
inevitable, between the
less justice the law is
24
. Von Richthofen
treftlykeratinghbieda,
likra, truchfruchtades
ngendalian Pencemaran
__
106
era” (orders what is proper, co
fair and sometimes what is u
purpose of the law should be ju
part of justice”. Apeldoorn sta
disproportionate and in conflic
create benefit or utility25.
What the agents at Sle
certainty, will not work (summ
seeks to give benefit to both par
Supervision of Articles
in an ineffective manner. This i
giving recommendations to com
advice to the business.
3.3 Enforcement of Article 28
Sleman Regency
So far, there has no fo
Sleman Regency, handled by
Social Service Office. This s
Investigators should have alread
Article 1(6) Governmen
Indonesian Criminal Procedura
servants at the central or local g
1(3) of Regulation of The Ch
Police Chief Regulation) No. 6
Investigators states that Civil
authority to carry out criminal
their authorities and are under t
their duties.
Article 1(5) and (6), Po
Supervision and Guidance of C
relation between Police Invest
criminal investigations in accor
25
Ibid., p. 15-17.
er, commands what is good, prohibits injustice,
t is unfair for fear of worse consequences). Gen
d be justice but is also forced to concede that “utili
rn states that the purpose of the law is not only
onflict with real condition, and neither is the law
at Sleman are doing, attempting, created both
summumius, summa iniuria). Their recommenda
oth parties and attempts to enforce the rules.
ticles 5 and 14 People with Disability Law has bee
This is because agents at Sleman’s service office a
to comply. In the event of a breach, agents are st
cle 28 of People with Disability Law at the Inves
formal violation of Article 14 People with D
d by the Civil Servant Investigator (PPNS) at th
his should not be a problem as the author be
already understood and are ready to possible viola
ernment Regulation No. 27 Year 1983, as lastly
cedural Code, states that Civil Servant Investigator
local government, who are given special authority u
Chief of The Indonesian National Police (her
No. 6 Year 2010 on Investigation Management
Civil Servant Investigators are certain civil serva
iminal investigation in accordance with the regu
nder the coordination and supervision of Police Inv
Police Chief Regulation No. 20 Year 2010 on
ce of Civil Servant Investigators states that coord
Investigators and Civil Servant Investigators to
accordance to relevant legal basis, and in accorda
tice, and allows what is
Geny states that the
utility and benefit are
t only to create justice,
he law simply meant to
both justice and legal
mendations and advice
as been carried out, but
ffice are still limited to
are still limited to give
Investigation Stage in
with Disability Law in
) at the Manpower and
or believes that these
violations.
lastly amended on the
tigators are certain civil
ority under law. Article
(hereinafter stated as
ement by Civil Servant
servants given special
e regulation underlying
lice Investigators during
10 on the Coordination,
coordination is a work
rs to carry out certain
relations. Supervision is an as
Civil Servant Investigators to e
prevailing laws.
Article 6(3) of Police C
carried out via:
1) Providing a letter indicating
2) Providing technical and tact
Civil Servant Investigators to
3) Accepting work briefs from
of the prosecutor’s office;
4) Sharing information on the e
out by Civil Servant Investig
5) Periodic meetings; and
6) Joint investigation.
Supervision by Police In
25(2) is carried out via26:
1) Attending and providing ad
Investigators;
2) Requesting and analyzing in
3) Jointly with Civil Servant In
forward them to the state pro
4) Based on the request of the
supervision on Civil Servant
5) Carry out data collection on
help provided from investiga
6) Analyze and evaluate the inv
Civil Servant Investiga
Regency are those empowered
states that “Special authority
addition to the one assigned t
26
Chief of The Indonesian Nationa Pengawasan Dan Pembinaan Penyid Indonesian National Police No. 20: N
an assessment and guidance towards investigativ
rs to ensure the whole investigation is carried out
lice Chief Regulation No. 20 Year 2010 states th
ating the start of investigations by Civil Servant In
d tactical support, coercive efforts and investigatio
ators to support and expedite work briefs;
from Civil Servant Investigators and forwarding
n the existence of suspected crimes, whose investig
vestigators;
lice Investigators towards Civil Servant Investigat
ing advice during case deliberations conducted
ing investigation progress reports from Civil Serva
vant Investigators, assess the work briefs from inv
ate prosecutors;
of the Civil Servant Investigator’s institution hea
ervant Investigators;
ion on cases handled by Civil Servant Investigato
estigators; and
the investigative work done by Civil Servant Invest
estigators at the Manpower and Social Service O
wered by the Manpower Law. Article 182(1) of th
rity to act as civil servant investigators may
ed to the investigating officials of the Police o
ational Police, Peraturan Kapolri No. 20 Tahun 2010 nyidikan Bagi Penyidik Pegawai Negeri Sipil (Regulation 20: NG No. 439, 2010). View Item
__
107
stigative work done by
ed out in accordance to
tes that coordination is
ant Investigators;
stigation consultation to
it to the local head
vestigations are carried
estigators as per Article
ucted by Civil Servant
Servant Investigators;
m investigations and to
n head, carry out joint
stigator institutions and
Investigators
rvice Office in Sleman
) of the Manpower Law
ay also be given, in
ce of the State of the
__
108
Republic of Indonesia, to labou
Thus, manpower supervisory ag
Civil Servant Investiga
authority to:
1) Carry out investigation of
manpower sector;
2) Carry out investigation to pe
3) Request information and evi
in the manpower sector;
4) Carry out investigation or
manpower sector;
5) Carry out investigation of
manpower sector;
6) Request the help of experts
manpower sector; and
7) Suspend investigation if ther
Article 28(1) of the Peo
violate the provisions of Art
imprisonment and/or a fine
violation/misdemeanor. The co
and private businesses should
accordance with the type and
total number of them should
business’ qualifications. In
discriminatively, including equa
Based on interviews w
owners or their personnel. Bus
on disabled workers. If a busi
treatment and fails to notify t
suspect29.
27
Indonesia, UU Nomor 13 Tahun 20 28
Indonesia, UU No. 4 Tahun 1997 T 29
Respondent, “Interviewed by Sus Agency in Sleman Regency: 7 Octobe
abour inspectors in accordance with valid laws a
ory agent may be given authority as a Civil Servan
estigators under Article 182(2) of the Manpow
on of the validity of reports and information o
to persons suspected of crimes in the manpower s
nd evidence from persons or legal institutions, in
n or confiscation of materials or evidence related
on of letters and/or other documents related t
xperts in order to carry out investigations related
if there is insufficient evidence of a crime in the m
People with Disability Law states that “persons
Article 14 are threatened with, at the maxi
ine of IDR 200,000,000.00"28
. This crime is
he contents of Article 14 People with Disability
ould give equal opportunity to the disabled by em
and degree of their disability, education and cap
hould be proportioned to the total number of e
. In addition, disabled employees should
g equal wage for the same job and position.
ws with Civil Servant Investigator, “all persons”
l. Business owners may be apprehended as suspec
a business’ personnel are aware of rules, which
otify the business owner, that personnel could al
n 2003 Tentang Ketenagakerjaan. 97 Tentang Penyandang Cacat.
y Susilo Andi Darma” (Civil Servant Investigator of M October, 2015).
ws and regulations”27.
ervant Investigator.
anpower Law has the
ation of crimes in the
wer sector;
ns, in relation to crimes
related to crimes in the
ated to crimes in the
related to crimes in the
the manpower sector.
ons who intentionally
maximum, 6 months’
ime is classified as a
bility Law is that state
by employing them in
nd capabilities, and the
r of employees and/or
ould not be treated
rsons” means business
suspects due to policies
hich is to oblige equal
uld also be liable as a
The next criteria of inte
business owner is aware, but fa
the business owner is unaware
owner, the personnel may also b
give equal opportunity and t
imprisonment and/or a fine of I
3.4 Enforcement of Article 28 Sleman Regency
The explanations of A
Investigation by Civil Servant
carry out investigations under
Management of Investigation
controlled, effective and effi
Investigator. The Civil Servant
coordinated and under superv
Servant Investigator must notif
has begun (Investigation Co
Servant Investigators may req
beyond the work area of the
Manpower do not have the aut
request the assistance of Police
The most important pa
investigator to the prosecutor.
prosecutor and must instead tra
of the Head of Police regul
Investigator. Police Investigato
ensure the brief in complete th
Civil Servant Investigators hol
only coordinate and supervise.
Servant Investigator at Yogyaka
30 Ibid. 31
Respondent, “Interviewed by Susil Regional Police: 6 October, 2015).
of intention mean knowledge on behalf of the bus
but fails to carry out policies then that is conside
aware, but the personnel is aware and fails to inf
also be responsible. Thus, business owners or pers
and treatment may be subject to at the maxim
e of IDR 200,000,000.00. (Two hundred million ru
cle 28 of People with Disability Law at the Inves
of Article 1(3) Police Chief Regulation on
ervant Investigator indicated that Civil Servant In
under the coordination and supervision of Police I
gation by Civil Servant Investigator is the pla
d efficient criminal investigation carried out b
ervant Investigator cannot act on their own autho
upervision of Police Investigators. Prior to inve
t notify the prosecutor via a Police Investigator tha
n Commencement Notification/SPDP). During
ay request the aid of Police Investigators to su
of the Civil Servant Investigator. Civil Servant
he authority to carry out arrests based on Article
Police Investigators.
ant part of the investigation is the transfer of the
utor. Civil Servant Investigators may not directly
ad transfer it via a Police Investigator. This is in lin
regulation on Management of Investigation b
tigators do not directly transfer the brief to the pro
lete through joint examination with the Civil Ser
rs hold the primary role in investigation while Po
rvise. This is in line with statements from the Co
ogyakarta’s Regional Police.31
Susilo Andi Darma” (Coordinator of Civil Servant Investig
__
109
he business owner. If a
onsidered intentional. If
to inform the business
or personnel who fail to
maximum, 6 months’
llion rupiahs)30
Investigation Stage in
n on Management of
vant Investigator might
olice Investigators. The
he planned, organized,
out by Civil Servant
authority and must be
investigation, a Civil
tor that an investigation
uring summons, Civil
to summon witnesses
ervant Investigators in
rticle 182(2), and must
of the briefs from the
rectly send briefs to the
s in line with Article 38
tion by Civil Servant
the prosecutor but must
il Servant Investigator.
ile Police Investigators
he Coordinator of Civil
__
110
Data from Civil Servan
legal construct to criminalize A
corporate responsibility could f
are still problems related to cor
as general crimes. The legal sub
as are the determination of fault
Based on these three iss
regulated in Article 28 of Peop
equal opportunity and treatme
providing opportunity for 1 peo
or 1 people with disability for
refers to non-discriminative trea
Accordingly, businesses
and may be seen from whether
or not. Another problem is whe
who announce open application
equal opportunity?
The next problem conce
persons who intentionally”. All
private persons but based on
organizations in civil law and
persons, the law also recognize
carry out legal acts as a human
Offenders of Article 14
may act on behalf of civil organ
be carried out by businesses. T
be given a legal sanction by the
Setiyono35 states that co
crimes against corporations, an
done for the interest of that cor
32
Eddy O.S. Hiariej, Prinsip-Prinsip Item
33
Subekti, Pokok-Pokok Hukum Perd 34
Hiariej, Prinsip-Prinsip Hukum Pid 35
Ibid., p. 156-157.
Servant Investigators at Sleman’s service office h
alize Article 28 People with Disability Law. It is
ould fulfill the elements violated by that corporat
to corporate crimes, which cannot be assessed in
gal subject owing responsibility in corporate crime
f fault.
ree issues the author attempts to elaborate the elem
f People with Disability Law. The first element is
eatment. According to the elucidations of Articl
people with disability out of 100 workers to w
ity for less than 100 workers in high technology
ve treatment including equal wages for similar wor
inesses must prove that they have given equal op
ether they have announced that they would accept
is whether this policy should only be a formality. S
ications for disabled but receive no application be d
concerns the legal subject responsibility. Article 2
y”. All persons may be interpreted hij die, which w
sed on further development also includes com
w and other fields32. Subekti33 notes that in addi
ognizes institutions or associations which also hav
uman would.
cle 14 may be state or private businesses. As not
l organizations or other associations. Thus, violation
ses. The problem which follows is whether corpo
by the state under administrative, civil or criminal l
that corporate crimes could be divided into crimes
ns, and Criminal Corporation. Crimes for corpor
at corporation. Crimes against corporations are cri
insip Hukum Pidana (Yogyakarta: Cahaya Atma Pustaka,
Perdata (Jakarta: Intermasa, 2003). p. 21. View Item Pidana. p. 156.
ffice has yet to show a
It is still unclear how
rporation. As noted by
sed in the same manner
crimes are problematic
e elements of crimes as
ent is the provision of
Article 14, this means
s to work in a business,
ology, while treatment
ar work and position.
ual opportunity or not,
accept disabled workers
ality. Should companies
n be deemed to provide
rticle 28 stated that “all
hich was first aimed at
s commission through
addition to biological
so have rights and may
s noted above persons
iolations of article could
corporate crimes could
l law34.
crimes for corporations,
corporations are crimes
re crimes by their own
personnel against their own
intentionally made and controll
author views violations by bus
crimes for corporation. Violatio
businesses do not have to pro
additional costs.
Returning to the issue o
the explanation above shows th
Law No. 40 Year 2007 on Li
Directors is the company’s orga
interest, in accordance with th
company within and outside of
Article 92(1) of the C
company matters for the comp
(2) gives them the authority to
within the limits set by the Com
states that the Board of Directo
in Article 92(1). Paragraph (3
personally responsible for the
out their duties in accordance
management to be carried out re
Based on these provisio
are related to the object and pur
their duties, they may be person
any of these to apply, we must
disabled workers or not. To sup
the existence of a policy on hiri
The third element is the
that fault at its widest extent
according to criminal law aga
aspects related to the crime and
with psychological meaning: t
36
Indonesia, UU No. 40 Tahun 200 2007). View Item
own corporation. Criminal corporations are
ontrolled to commit crimes. According to Setiyono
by businesses against Article 28 of People with D
iolations are meant to avoid the implementation of
to provide facilities to support disabled workers
ssue of responsibility for Article 28 of People wit
ows that businesses should be responsible. Based o
on Limited Liability Companies36 (Company La
’s organ in charge of and fully responsible to mana
ith the object and purposes of the company, and
ide of courts in accordance with the company’s cha
the Company Law states that the Board of Di
company’s interest according to its object and pu
ity to manage matters in paragraph (1) through pro
he Company Act and/or company charter. In addit
irectors is responsible for the management of the c
(3) states “all members of the Board of Direc
the losses of the company if that person is guilty
nce with paragraph (2)”. The provision of parag
out responsibility and in good faith.
ovisions each director could be responsible as lon
nd purpose of the company. Or if they are guilty or
rsonally liable even to the extent of their own pe
e must first determine whether companies have a
To support claims, there needs to be strong written
on hiring disabled workers.
t is the existence of fault. Van Bemmelen and V
xtent means all elements to which a person ma
w against an unlawful act and covers all compl
e and its perpetrator. Van Hamel also states that f
ning: the relationship between the psychological
2007 Tentang Perseroan Terbatas (Jakarta, Law Numb
__
111
are those which are
etiyono’s definition, the
with Disability Law as
ion of Article 14 so that
rkers and do not incur
le with Disability Law,
ased on Article 1(5) of
Law), the Board of
manage the company’s
y, and to represent the
charter.
of Directors carry out
and purpose. Paragraph
gh proper policies, and
addition, Article 97(1)
f the company as noted
irectors are fully and
uilty or fails to carry
paragraph (2) requires
long as their actions
ilty or fails to carry out
wn personal assets. For
ave a policy to employ
ritten evidence to show
Van Hattum avowed
on may be responsible
complex psychological
that fault is an element
ogical condition of the
__
112
perpetrator and the realization o
sense means responsibility und
drawn. First, fault in its wider
only be seen from its psycho
definition of fault as a normat
relationship between a perpetr
perpetrator, then the person has
Based on this opinion,
that it is against the law and
deemed to have been at fault. I
responsible, as both businesses
or administrative law38.
Consequently, law enfo
conducted in both formal and m
alone but must stay in coordin
Secondly, Civil Servant Inves
whether a legal subject could b
an unlawful manner.
4.Conclusions
The conclusion could be
Articles 5 and 14 of People wi
because Manpower Supervisor
giving recommendations for c
enforcement of Article 28 of
formal and material sense, but
Regency. Formally, Civil Serva
and under the supervision of th
must prove whether or not a
responsible, and that there is a f
Acknowledgments
The authors would like
Dewi, Labor Law Lecturer at
37
Hiariej, Prinsip-Prinsip Hukum Pid 38
Ibid.
ation of the elements of crimes due to their action.
ty under law. Based on these opinions, two conc
wider meaning is identical to responsibility. Sec
sychological understanding but should also be
normative element. Fault in the psychological sen
perpetrator and the act committed. If the act w
on has intentionally done so37.
inion, if a company’s managers intended an act, k
and entails legal consequences, and then the co
fault. In addition, it must be proven that the compa
nesses and their managers could be liable crimina
enforcement of Article 28 of People with Disabi
and material sense. Formally, Civil Servant Invest
oordination and under the supervision of the Pol
Investigators must prove whether or not a crim
ould be held responsible, and whether there is a fa
uld be concluded from the research as follows; fir
ple with Disability Law has not been carried out e
rvisory Agents in Sleman Regency are still limi
for companies to comply with the regulation.
of People with Disability Law must be carried
, but unfortunately this article was not yet implem
Servant Investigators cannot act alone but must sta
n of the Police Investigators. Secondly, Civil Serv
not a crime had occurred, that a legal subjec
e is a fault carried out in an unlawful manner.
ld like to acknowledge Ari Hernawan and Murt
Civil Law Departement of Faculty of Law, U
Pidana.,p. 124.
ction. Fault in the legal
o conclusions could be
y. Second, fault cannot
o be seen in the legal
cal sense is the mental
act was willed by the
act, knowing full well
the company could be
company could be held
iminally, or under civil
Disability Law must be
Investigators cannot act
he Police Investigators.
a crime had occurred,
is a fault carried out in
ws; first, Supervision of
out effectively. This is
limiting their self on
And second, Law
carried out in both the
implemented in Sleman
ust stay in coordination
il Servant Investigators
subject could be held
Murti Pramuwardhani
Mada for assistance in obtai
Krisnawati and Pitaya for their
Community Faculty of Law, Un
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