Indonesian Legal Dynamics In Global Capitalism Reality: Analysis of the Formation of Indonesia’s Regulations

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INDONESIAN LEGAL DYNAMICS IN GLOBAL CAPITALISM REALITY: Analysis of the Formation of Indonesia’s

Regulations

Imam Mahdi

State Islamic University of Fatmawati Sukarno, Bengkulu Jl. Raden Fatah Air Sebakul, Bengkulu

Abstract: The formation of regulations cannot be separated from the dimension of the legal report. The formation of law in Indonesia is a compromise of political elites in Indonesia's multi-party government system. Not only is the formation of laws purely a legal product, but also as a political product. In fact, it is a struggle between political interests that underlie and collaborate among the interests of various parties, including foreign interests. Therefore, in the practice of forming laws in Indonesia, there are often deviations from the ideological foundation of the state starting from the old order era, the new order and the current era of reform. This research reveals the main causes of these irregularities.

Keywords: Legal dynamics; the formation of legislation; the influence of global capitalism.

Abstrak: Pembentukan peraturan tidak lepas dari dimensi laporan hukum. Pembentukan hukum di Indonesia merupakan kompromi elit politik dalam sistem pemerintahan multi partai di Indonesia.

Pembentukan undang-undang tidak hanya semata-mata merupakan produk hukum, tetapi juga sebagai produk politik. Padahal, itu merupakan perebutan kepentingan politik yang melandasi dan mengkolaborasikan kepentingan berbagai pihak, termasuk kepentingan asing. Oleh karena itu, dalam praktik pembentukan undang-undang di Indonesia seringkali terjadi penyimpangan dari landasan ideologis negara mulai dari era orde lama, orde baru, dan era reformasi saat ini. Penelitian ini mengungkap penyebab utama penyimpangan tersebut.

Kata Kunci: Dinamika hukum, pembentukan peraturan perundang-undangan; pengaruh kapitalisme global.

Introduction

Capitalism does not only apply in the world of economy and free trade as it has been understood so far. The theory of Karl Marx’s in the free competition market and the law of capital accumulation. The crim capitalists is to change a country's economic policy with various regulations made by the country's government. A popular example of this, as happened in Indonesia in 1997/1998, The IMF was asked to overcome the crisis, then began a series of capitalism efforts through the formation of legislation.

IMF assistance is precisely the source of the problem, because the countries that

are assisted generally enter the "debt trap"

which is very difficult to break free from.

This can be seen from the fact that countries that have foreign debt are generally problematic, as experienced by Mexico, Brazil, Argentina and Turkis in the 90s.

The Argentinian case which was handled by the IMF after the 2000 crisis, it is still having a bad impact on rampant inflation. The Argentine peso exchange rate weakened 40 percent during 2018.¹ Until now still left behind relics in Berazil the highest in the world reached 76% or 12, 9

1 Melani, Agustina, Ekonomi Argentina Makin Memburuk, www//:https.Liputan 6. Com. (2018), p. 4

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million people, for example some countries in Asean such as Thailand were forced to develop baht at least a foreign currency that could maintain a bridge to the United States dollar.

In Turkey, In an attempt to stabilise the economy, Turkey entered into an IMF stand-by arrangement (SBA) in December 1999. Its main pillars were an exchange rate anchor, i.e. a crawling pegwith a preannounced exit strategy that would mitigate the typical risks of real appreciation for exchange-rate based stabilisations,

"currency-board rules" which excluded the possibility of sterilised foreign exchange intervention, fiscal consolidation through a large upfront adjustment in the primary fiscal deficit and a comprehensive agenda of structural reforms. Initially, the programme was successful. Inflation started to fall, though more slowly than anticipated.

Interest rates meanwhile came down much further than projected. This, together with the steady real exchange rate appreciation, fuelled a boom in domestic demand and led to a widening of the current account deficit.

Meanwhile, fiscal consolidation and structural reforms (the only policy levers available under the quasi-currency-board rules) lagged behind, fuelling market unease about the SBA programme.²

In Thailan, the value of bath dropped ergifrenthy 40% .³ While and Brazil, a senous social crisis was eidentitas 12,9 million became jobles.

As for Indonesia, The IMF recommended that the government and suggeted privatization of companies also, IMF suggested numerons legal anwendinents that ease of investment to foreign parties. deregulate and liberalize, However, the privatization implemented in Indonesia at the instigation of the IMF

2 Macovei, Mihai, Growth and Economic Crises in Turkey: Leaving behind a Turbulent Past, European Commission Directorate-General for Economic and Financial Affairs Publications B-1049 Brussels Belgium, Economic Papaer Europen Affair, (2009), p. 18

3 Laurids S Lauridsen, “The Financial Crisis in Thailand: Causes, Conduct and Consequences?,” World Development 26, no. 8 (1998), p. 1575–1591.

instead made government-owned companies controlled by foreigners because of their much higher purchasing power compared to Indonesians. This further collapsed Indonesian economy.

The Indonesian Case

The formation of law in Indonesia is directed to build a legal system that serves the interests of the Indonesian people, the interests of the Indonesian people are the same as the goals of the nation asexplicitly stated in the opening of the 1945 Constitution that the state wants to improve the life of the nation, advance public welfare, and participate in maintaining order world.

On the other hand, the purpose of pragmatic development of law is aimed at creating laws that are in accordance with the nation's personality with the spirit of mutual cooperation and a spirit of justice for all Indonesian people, essentially the law built is accompanied by a spirit of justice based on Almighty God and Indonesian democracy. As Achmad Irwan Hamzani⁴ stated, As an implementation, national law must serve the national interest and achieve the people's welfare, justice and public order. Regulations as an embodiment of values must contain values that are held in high esteem by the people of Indonesia. The concept adopted by Indonesia is the concept of development law, which places the law as a means of community development that emphasizes the function of law as; maintainers of security and order, development facilities and community education facilities. Soepomo has particularly warned that there must be a national law with an Indonesian personality and therefore must be based on customary law, without neglectingthe legal adoption from other world communities which is not in conflict with the Pancasila and the 1945 Constitution.⁵

4 Achmad Irwan Hamzani, Perlunya Reorientasi Sistem Pemidanaan Di Indonesia (Penerbit NEM, 2022).

5 Nur, SR., Membina Hukum Adat Menjadi PenghayatanPancasila di Bidang Hukum Adat, dalam

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Ever since Indonesia was independent in 1945, it is currently marked by the success of legal reform, by amending the 1945 Constitution even up to four times, but as if after the amendment to the 1945 Constitution, stagnation were not followed by fundamental changes to the legal substance. Criminal Law, Civil Law,and Commercial law for the most part still employ colonial inheritance law. At present, the development of Indonesian law has come out of guidance, as mandated by the Preamble to the 1945 Constitution and the spirit of the Pancasila. Legal development in Indonesia always experiences degradation.

Collaboration on the formation of law in Indonesia is more patterned to values, the formation of law through legislation tends to lead to the pragmatism interests of a group or individual.

Legislation and its formation process play a significant function in the development of national law. Indonesia legislation is the main way of law creation, and joint of the national legal system. In addition, legislation is an effective instrument in law reform because of its binding and coercive legal force. Legislation also provides legal certainty that is higher than customary law or jurisprudential law.⁶

However, the legal formation in Indonesia deviates from the expected principles of law reform, this is further compounded by the interference of foreigners over the sovereignty of Indonesian law, especially the interests of global economic capitalism. Rizal said that foreign interference was very detrimental to Indonesia. "There are more than 21 laws financed by foreigners and they are detrimental to Indonesia economically, including in natural resources and in practice state revenues from mining are very small

Bunga Rampai Pembangunan Hukum Indonesia, Eresco, Bandung, (1995), p. 191

6 Fitriani, Mia Kusuma, (Peranan Politik Hukum Dalam Pembentukan Peraturan Perundang-Undangan Di Indonesia Sebagai Sarana Mewujudkan Tujuan Negara (Laws And Regulations In Indonesia As The Means Of Realizing The Country’s Goal), (2013), p. 20

(Ramli, 2010).⁷ Eva Kusuma Sundari said that there was foreign interference involved in the drafting of dozens of laws in Indonesia, the draft being carried out by foreign parties.

The research on Indonesian legal politics has focused on two things: first, legal politics is associated with law reform, efforts to make changes to the laws originating from the colonial to be immediately changed and replaced with Indonesia's own legal products such as the desire for change against the Criminal Code, the Civil Code, Commercial Law, and many more. Second, Indonesian legal policy and politics are in line with the nation's personality, which means that there is a spirit to replace the prior law with the apriori law in accordance with the country's goals, as said by Mahfud that legal politics is the official legal policy will be enforced both with the new law and with the replacement of the old one, in order to achieve the goals of the country.⁸

Second, the politics of law is directed to respond to the demands of the people who want to actualize and to obeythe applicable laws. As Soenarjati Hartono said that legal politics is directed at: 1) National Law must be a continuation (inclusive modernization) of customary law, with the understanding that national law must have the spirit of Pancasila. The soul of the five precepts of Pancasila must be able to meet the needs of the Indonesian people in the present and as far as possible in the future;

recommends a number of things in the context of the formation and development of Indonesian national law, and should get attention namely the following matters: 2) Indonesian national law will not only revolve around the issue of choosing the parts between customary law and western law, but also must consist the new rules of creation in accordance with the needs in solving new problems as well; 3) The establishment of national legal regulations

7 Rizal, Ramli, Banyak Undang-Undang Pesanan Asing,https://www.beritasatu.com, (2010), p. 6

8 Mahfud MD, Moh, Politik Hukum di Indonesia, Jakarta: PT RajaGrafindo Persada, (2009), p. 27

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should be functionally determined. The new rule of law must substantially meet the needs of the community. Furthermore, the rights or obligations to be created are also in accordance with the purpose to achieve a society that is fair in prosperity and prosperous in justice.⁹

The purpose of this paper is to examine in detail the Indonesian legal politics relating to the formation of law that is not in line with the basis, direction and policy of legal development in Indonesia.

Correspondingly, three questions can be asked: (1) how the legal product is formed so that it exits the outlined rails; (2) how the law is applied to legal purposes; and (3) why there is disharmony in the formation of law in Indonesia.

This paper is based on the assumption that the formation of legal material in Indonesia often deviates from the main objectives of legal politics that have been established in the corridor of Indonesia's legal development system, it is realized that the formation of law in Indonesia is a collaboration between political interests on the one hand and legal interests on the other. As the power shifts between the executive and legislative branches, the legal product will follow.

However, in Indonesia the problem is made even worse because of the cooperation between the Legislative and Executive Branch the wish of certain groups to be adopted, and the interests of the people are in fact not prioritised.

Literature Review

The dynamics of Indonesian law always go hand in hand with changes in the political system, at the beginning of independence there was a desire from the founders of this nation to form a legal system based on the nation's noble values which is crystallized on the Pancasila

9 Hartono, C.F.G. Sunaryati, dkk, Pembangunan Hukum Indinesia, Laporan Tim Peneitian BPHN Tahun (2011), p. 38

concept. The concept of five elements listed in Pancasila are not new things in the formation of the Indonesian, but have previously been owned by the people of Indonesian, who actually exist and live in their souls^.

The traditional nature of the Indonesian people was eroded when Cristoper Columbus discovered the American continent in 1492. This discovery was followed by the discovery of a direct sea route to India by Vasco Da Gamma. The early capitalism system (1500-1750) was marked by mercantilist policies that were identical with the accumulation of gold and silver and the invasion of the European countries into Asia including Indonesia. This early capitalism was also marked by the emergence of empires in Western Europe such as Spain, Portugal, the Netherlands, France and England. This greed between the capitalist imperums made them fight each other to colonize other nations in order to compete for wealth.

There will still be an important question, why should it be the Indonesian style? According to B. Arief Sidharta, in Indonesia, after the formation of an independent Republic of Indonesia, it was clear that its legal development was carried out under the influence of a legal positivism.

Indonesian independence apparently has not freed the way of thinking from the dominance of Western ways of thinking, including how to think in the field of law.

This can be seen from the formation of the law. Basically, the formation of a law is part of legal development which includes the development of a national legal system with the aim of the state started from rational planning or programs^.

The development of capitalism is too dynamic which makes it seem as if capitalism in Indonesia were free from legal arrangements, even though it is only because of the fast-moving nature of capitalism that it cannot be captured immediately by the portrait of the law. Then the government system in Indonesia from time to time underwent several changes.

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Historically, the application of the capitalist neoliberalis system in Indonesia was inseparable from the spirit of the new order to lift the nation's dignity and economy from the slump after the 1965 uprising. Max Weber believes that Capitalism is an understanding that believes that capital owners can do their business to achieve maximum profits. The capitalism system does not heed social welfare, shared interests, shared ownership or the like.

The state protects the most influential capitalists and the destructive effects of reform (Hiearif, 2006). Politics is now only concerned on the interests of groups and individuals as part of politics without regard to the public interest. The current politics only prioritizes the goals of the group and puts aside the interests of others.

The capitalists developed by the technocrats of the industrial countries only had a positive impact on the industrial countries and made developing countries a cash cow. Local wisdom and firmness of developing country governments are needed to overcome the problem of dependence on developed countries.

Methods

This study uses descriptive termology and analysis based on qulaitative research, meaning that this research does not need to require large and large amounts of data so that it is easier to classify the categories of categories. The Secondary data sources used are official data in the formation of laws which are considered to be influenced by global capitalism, and are politically and economically detrimental to the Indonesian nation and are in conflict with the principles of establishing good legislation.

In this study the authors classify, compare, and relate various aspects of the formation of law, especially at the level of the law and its implications.

According to Rizal Ramli, there were around 21 laws in the days of President Megawati and Soesilo Bambang Yoedoyono

funded by foreigners. The focus of research in this study is the laws that are indicated to be influenced by the interests of global capitalism such as: National Investment Law, Banking Law, Electricity Law, Foreign Investment Law, Education Law, Forestry Law and others, this is directly related to the economy and sources natural power which is the target of capitalism.

The author does not want to get caught up in the diversity of legal research or distinguish sharply between juridical and normative sociological research. This research is a socio legal study, which studies not limited to text, including the deepening of the context, which includes all processes, for example from 'law making' to 'implementation of law'.

As said by Fiter Mahmud Marzuki that legal research is a process to find the rule of law, legal principles, and legal doctrines to answer the legal issues faced by Marzuki. This research uses the technique of analyzing legal materials with deductive logic, the processing of legal materials in a deductive way which is to explain something that is general in nature and then draw it into more specific conclusions.

The foundation of the formation of a law in Indonesia

The formation of legislation in Indonesia began since Indonesia's independence. This was stated in the text of the Proclamation of August 17, 1945, the Proclamation was the starting point for breaking into the colonial law towards national law. Pancasila was used as a State Ideology and State Basis unanimously by Investigating Committee for Preparatory Work for Independence (BPUPKI) members and accomplished by Preparatory Committee for Indonesian Independence (PPKI), and it currently is still applied as a guideline. The results of the Kompas Research and Development poll showed that almost all respondents (96.6 percent) stated that Pancasila must be maintained as the basis of the state. Not only that, as much as 92.1 percent confirmed that Pancasila as

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the best foundation for this nation (Anonymous, 2009). Therefore all legal products in the framework of building the national ideals of Pancasila as their spirit (Anonymous, 2009).

Pancasila as the highest basic abstract norm is translated into articles of the 1945 NRI Constitution. As in the theory of Hans Kelsen, the Constitution is still abstract. It requires a practical regulationas an operational basis. Article 21 of the 1945 Constitution of the Republic of Indonesia states: Paragraph (1) Members of the People's Legislative Assembly have the right to advance the draft law. In accordance with the functions of the DPR as regulated in Article 20A (paragraph) 1: the House of Representatives has a legislative function, a budget function and a supervisory function.

if the Act has not yet regulated in detail, it will be regulated by the legislation below it in act. Article 7 paragraph (1) of Law Number 12 of 2011 concerning Formation of Regulations consisting of:

The 1945 Constitution of the Republic of Indonesia;

Decree of the People's Consultative Assembly;

Act / Regulation in Lieu of Law;

Government regulations;

Presidential decree;

Provincial Regional Regulations; and Regency / City Regulations.

Policy Direction for Legal Formation

The direction of legal development in a country is closely related to the policy formulation of policy-makers, this is in accordance with the concept of legal politics.. However, the direction and policy of detailed legal development had only just begun in the new order era with the emergence of the Guidelines of State Policy (GBHN), which was the state's direction regarding the implementation of the state in broad outlines as a statement of the will of the people in a comprehensive and

integrated manner. The GBHN is determined by the People's Consultative Assembly(MPR) for a period of 5 years.¹⁰ In the New Order era, GBHN was issued for six times since 1973 to 1998.

The policy direction of the development of the new law is explicitly stated in the GBHN 1988, namely:

"maintaining order and legal certainty that is able to protect the community as one of the requirements for the creation of anational stability, for that it is necessary to take steps to foster law enforcement apparatuses, increase their ability and authority, and fostering community legal awareness.

The 1998 GBHN required Indonesian national law to be arranged in a hierarchical and idealized Pancasila law. The normative view of law reflected in the GBHN requires the development of a national legal system that is based on the Pancasila and the 1945 Constitution, but efforts to make the Pancasila manifest in national legal instruments concretely and operationally are not effortlessstruggle .¹¹

In the reform era, the Parliament made a Decision on the National Legislation Program (Prolegnas) which lists the laws that would be formed in 2005-2009. This list of laws constituted a follow-up process to the objective conditions for the formation of an incomplete law in 2000-2004.

Fundamental differences in making policy development law before and after the issue of Law no. 25 of 2004 concerning the Indonesian Development System is in its emphasis and placement. Prior to Law No.

25 of 2004 the emphasis is more on legal development in both the normative and empirical level and its placement in sector / sector in the GBHN. Whereas after the act

10 Harun, Refli, Kajian Politik Hukum terhadap Perencanaan Pembangunan Nasional Semesta berencana Guna Meningkatkan Daya Bangsa: makalah disampaikan di Semarang tanggal, (2016), p. 9

11 Wicaksono, L.,Politik Hukum

Perencanaan Pembangunan Hukum Nasional, https://www.academia.edu, (2016), p. 9

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issued, the emphasis of legal development is more oriented to the regulatory framework (normative) and its placement is not sectoral.

Strengthening the formation of legislation must be done because there are still smuggling of primordial, sectarian, foreign interests, and sectoral ego issues in the formation of legislation.

The Legislative Relationship Products of Global Capitalism in Indonesia

Based on Indonesian history, it can be traced from the formation of law in the old order era. There are at least 10 issues that are considered to deviate from the State Ideology of the Pancasila State due to the legal status, among others, which can be traced after the issuance of the Presidential Decree July 5, 1959 namely Presidential Decree No. 2 of 1959. This, of course, became an aberration of the old order, because it contradicted the 1945 Constitution which regulates general elections as a condition for electing legislative members. People's Temporary Consultative Assembly (MPRS) Decree No. 3 of 1963 confirmed its appointment as President for life.

From the character of legal products in the New Order era, as well as the legal provisions regarding elections, it can be qualified as orthodox / elitist / conservative legal products (Faiza, 2015)¹². It turns out that in the New Order era, the formation of law products deviated a lot from its purpose, namely national law originating from Pancasila, Mahfud MD in his dissertation explained that Indonesia under the New Order regime displayed a

"undemocratic" political configuration.

In the new order era that was synonymous with Suharto's rule, the authoritarian legal product was as stated by Hutabarat:

1. The legal product is used as an instrument of power to achieve the objective of power. One purpose of authority is to maintain the rule periods. Under that

power, a government does as they wish because the law has been made as a tool.

2. The age of the president's power long will open up opportunities to be abused, because the longer a person in power, the more likely the authority to be abused. At least the parties around the power will use the power for personal or group interests.

3. It was the domination ofthe military role and resulted democracy stagnant.¹³

It is accordance with the statement above, (Mahdi dan Sirajuddin, 2019)¹⁴ stated:

One of the reformation targets desired by society is legal reformation. A number of legal breaches occurred in New Order triggers this movement, as the authorities often conducted the following irregularities: (1) law served as a tool to justify over policies and government cases, (2) justice process engineering related to powerful person as well as their families and acquaintances, (3) judicial system was under executive power that tended to comply with power.

One example of legislative products that is not in line with the legal politic wasthe Act Number 3 of 1975 concerning Political Parties and Working Groups (Golkar). All elements of the Indonesian National Military (TNI), Indonesian Police (Polri) and Bureaucracy government become part of the Work Group that functions as a Political Party as it participates in the election. Therefore, Golkar was developed into a tool to ensure that the majority of votes in elections would support the government. Golkar had a network up to the villages and was funded to promote the Central Government. Civil servants were required to support Golkar while village heads received a vote quota for Golkar that had to be fulfilled. These policies resulted in

13 Hutabarat, Ramly, (2005), Politik Hukum Pemerintahan Soeharto tentang Demokrasi Politik di Indonesia, Jakarta: Pusat Studi Hukum Tata Negara FHUI, 2005. p. 57-58.

14 Mahdi, Imam dan Sirajuddin, Philosophy Of Law In Forming Religious-Based Regional Regulations, Jurnal MADANIA Vol. 23, No. (1, Juni 2019), p. 38

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a major victory for Golkar in the 1971 general election. Anonymous.

The Act No. 3 of 1985 increasingly limited the space for parties. Political parties were no longer given freedom in determining principles so that they lost their characteristics and were increasingly deprived of their voter base. Political parties had to change their ideology with Pancasila as the sole principle as stated in the Act No.

3 of 1985, Article 2 paragraph (1). Political Parties and Work Groups are based on Pancasila as the only principle. Paragraph (2). The principle referred to in paragraph (1) is the principle in the life of society, nation and state.

In the era of the new order of legal products, all initiated by the government, the House of Representatives (DPR) as a legislative and control body did not function at all, this is because most members of the DPR are controlled by Golkar. According to Afan Ghaffar, there are at least two things related to the lack of use of these rights.

First, to be involved in activities that realize the rights of the DPR, usually carries a great risk for members, because it will conflict with the interests of the government.

History shows that a strong, confrontational and antagonistic attitude towards government carries the risk of being withdrawn by his party. Second, the need for support from other parties requires a coalition, and that might work well because of ideological closeness.¹⁵

In the economic sector the deviation is getting worse, all economic sectors are controlled by a capitalist group (there are strange types of capitalists such as conco and bureaucrat capitalists. In addition, there are political leaders, relatives, and the royal family,involved in business. They are seeking is not only protection against foreign competition, but also concessions, licenses, monopoly rights, and government subsidies (in the form of low-interest loans from government financial institutions). As a

15 Ghaffar, Affan, Politik Indonesia:Transisi Menuju Demokrasi.Yogyakarta: Pustaka Pelajar. (2006), p. 71

result, it has flourished with all kinds of abuses.¹⁶

In the era of legal development reforms mentioned in the National Long- Term Development Plan (RPJPN) 2005-2025, legal development was carried out to achieve the mission of creating a competitive nation and aregulation- baseddemocratic society.

The material in the formation of law as explained in the introduction above contains errors that are difficult to explain with reason in the administration of state.

Politicians based in Senayan are no more than rent-seeking bandits, because they weresponsored by foreigners who had business interests in Indonesia to issue the regulation. According to Satya Arinanto, quoting Daniel S. Lev's opinion, at present this is not an "era of reform" that is happening in Indonesia, but rather an "era of opportunity".¹⁷ The main problem faced is that it is easy to overlap or even contradictions among regulations.

From various investigations, there are several Acts of reform era products that are suspected of potential irregularities, as expressed by state constitutional law expert Zainal Arifin Mochtar as well as Director of the Anti-Corruption Study Center at Gajah Mada University. One indication of the change in mindset of drafting laws due to foreign aid is the privatization of the public sector which should be the responsibility of the state.¹⁸ As it is known that the constitutional mandate formulated by the Indonesian founding fathers and in accordance with the Pancasila Ideology ordered natural resources fulfilling the lives of many people must be controlled by the state and be used as much as possible, and as fair as possible for the society. These

16 Anggoro, Harinto Dampak Korupsi terhadap Perekonomian Indonesia, www.kompasmania.com.

(2015), p.8

17 Arinanto, Satya, (1999), Pemilihan Umum, Demokrasi dan Paradigma Baru Kehidupan Politik, Jurnal UNISA No. 39/XXII. /(1999) .p.4

18 Stefani, Christie, Banyak Titipan Asing, 23 RUU Sektor Ekonomi Jadi Prioritas, https://www.cnnindonesia.com. (2015), p.6

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shifts in mindset are caused by politicians who are pragmatic and intend to fulfill a moment of political will. Indonesia have taken place earlier in America as the form of democracy that it is known as "Political Nihilism". This situation is caused by the hijacking of democratic principles by the morality of free market fundamentalism. It has undermined a meaning of what is called public benefit. The desire to make a profit both legal and illegal has overcome any prosperity.¹⁹ Making Indonesia worse off after the inclusion of capitalization in the world of education said the opening of higher education to the free market Higher education was finally released from government control.

The issuance of investment, mining and plantation laws providing exceptional concessions to the private sector over land tenure have structurally damaged the living arrangements of the surrounding communities and have had an impact on the impoverishment of citizens. Entrepreneurs fully supported by the government under the pretext of advancing investment as regional financing have acted unethically in a legal state shutter based on Pancasila. The morality discourse cannot be separated from the social relations that create it, specifically the power relations. Therefore it should always be remembered by law makers Eugen Ehrlich and Roscoe Pound

"the center of gravity of legal development lies not in legislation, nor in juristics, nor in judicial decisions, but in society".

With the existence of large plantations, HGU holders that have already entered the area of the people's land can supposedly provide welfare to them. In fact Bengkulu Province is the 2nd poorest area on the island of Sumatra and is considered to have a high level of corruption, even though the population is less than 2 million people, the term "A small gulf with consisted of crocodiles" is attached to it.

19 Zamjani, Irsyad, Nihilisme Politik, Peneliti pada Center of Asian Studies (CENAS), Jakarta, https://mkri.id/. (2017), p.3

Bengkulu people often define the area on the coast of the West Coast of Sumatra.

In the research on the tenure and management rights of customary land in the Pekal tribe region of North Bengkulu and Mukomuko Regency, Bengkulu Province, it leads to such matters (Mahdi, et al, 2019).

Muhadjir (2019) said the precepts in the Pancasila and the Preamble of the 1945 Constitution contained values that mandated the state to realize social welfare for all Indonesian(Anonymous, 2019).

Therefore, the legal substance that deserves to be built in the future is the law that is in favor of human dignity and is democratic, therefore the legal substance must not have the potential to benefit a particular group, whoever it is. It must also be prevented from forming a corrupt legal substance. This is the joint task that accompanies us (Betutu, 2012). Many people recently do not trust the institutions and law enforcement because legal issues are not yet effective in their handling. Distrust of the legal system in Indonesia increasingly becomes the cause for concern. This tendency does not only occur in justice institutions but also in all social level.²⁰

A lot of judicial review material on the Constitutional Court, proves that the Act was allegedly contrary to the 1945 Constitution of the Republic of Indonesia.

The data shows, since the Constitutional Court was established in 2003 to 2017, there have been 574 norms amended both article and paragraph revoked from 234 Laws requested.²¹

Legislative institutions should be given the mandate to maintain the spirit of Indonesian law and always prioritize the

20 Manullang, Efernando M., Menggapai Hukum Berkeadilan Tinjauan Hukum Kodrat dan Antinomi Nilai, Cetakan kedua Jakarta: PT. kompas Media Nusantara,(2007), p. 25

21 Mys, Memprihatinkan, Proses Legislasi

Indonesia Banyak Dibiayai

Asing,https://www.hukumonline.co, (2008), p. 36

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interests of the people rather than the interests of groups or individuals as respected members of the DPR. It needs to be noted for the legislators that it is important to pay attention to the voice of the majority of the community who do not have access to influence public opinion and political policy. This is where the role of elected representatives through the existing democratic mechanism in the structure and political infrastructure safeguard the interests of the majority of the people, and fully understand the norms, rules, interests and needs of the people so that these values become positive law. Political law or political configuration that is expected of democracy in the political order in Indonesia so that it will create a responsive legal product.²²

In addition, the DPR seems not to have been serious in making laws based on the findings of researcher for the final task of the doctoral program, it was found that several articles in the law were in conflicting norms while regulating the same object as Law No. 32 of 2004 concerning Regional Government and Law No. 25 of 2004 concerning Development Planning Systems.

Based on the provisions of Law No. 25/2004, Article 19 paragraph (3) states: "Regional RPJM shall be stipulated by Regional Head Regulation no later than 3 (three) months after the Regional Head is appointed".

Whereas in Law No. 32 of 2004 Article 150 paragraph (3) letter e states: "Regional RPJP and Regional RPJM as referred to in paragraph (3) letters a and b are stipulated by a Regional Regulation based on Government Regulation.²³

The different legal arrangements for valid regional development planning make it difficult to implement regional planning arrangements (Tri Cahyo, 2004). This difference in regulation will in turn cause

22 Salam, Abdus, Pengaruh Politik Dalam Pembentukan Hukum Di Indonesi, Mazahib, Vol. XIV, No. 2 (Desember 2015), p. 42

23 Mahdi, Imam, Hukum Perencanaan Pembangunan Daerah, Yogyakarta: Pustaka Pelajar, (2017), p. 35

quite serious legal problems with the validity of a regional development planning document, because the Regional Regulation (Perda) and the Regional Head Regulation have different legal positions. Zudan said, through critical empirical observation it can be seen that the national legal development process that often uses "Jakarta logic"

produces legal products that are not easy to implement for the Indonesian community which is far more diverse when compared only to the "Jakarta actors".²⁴

Disscusion

The purpose of this study is to determine the formation of laws and regulations carried out in Indonesia from the beginning of independence until the reform era, which is allegedly influenced by the interests of global capitalism, this is very contrary to the principles of law formation in Indonesia. The results show that the formation of legislation in Indonesia is indeed influenced by foreign capitalism, this is common in developing countries like Indonesia. Indonesian laws have almost no identity anymore. The post-reform legislation process is managed or funded by foreigners. The most obvious are laws concerning natural resources.²⁵ By knowing the existence of foreign influences on the formation of laws in Indonesia, it can be ensured that the principles of such formation are contrary to the interests of the Indonesian people themselves even though the purpose of forming legislation is focused as much as possible for the welfare of the society especially the laws governing concerning natural resources, this natural resource regulation is largely controlled by the global capitalism. emphasized that the problem of foreign capital entering Indonesia had caused pros and cons from the beginning. The pros and cons even

24 Fakrulloh, Zudan Arif, Ilmu Lembaga dan Pranata Hukum (sebuah pencarian),https://docplayer.info, (2009), p. 58

25Mys, Memprihatinkan, Proses Legislasi

Indonesia Banyak Dibiayai

Asing,https://www.hukumonline.co, (2008), p. 30

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continued when the House of Representatives and the Government discussed the Investment Bill, which was later passed into Law No. 25 of 2007. The debate between the need for foreign capital and the importance of protecting local interests is clear, said the economic law expert.

The influence of global capitalism is not pure because of Indonesia's interests in investment sectors. If it is related to investment, then it can be understood, for example to facilitate foreign investment in Indonesia which is always constrained by convoluted bureaucratic problems that result in high costs. However, these foreign influences collaborate with foreign interests on certain investments, especially in the management of mining, forestry, and natural resources that are firmly regulated in the 1945 Constitution as stated in Article 33 paragraph (1); The economy is structured as a joint effort based on the principle of kinship.

paragraph (2); The branches of production which are important for the State and control the lives of many people are done by the State, paragraph (3); Earth, water and natural resources contained therein are controlled by the State and used for the greatest prosperity of the people, paragraph (4), the national economy is organized based on economic democracy with the principles of togetherness, equitable efficiency, sustainability, environmental awareness, independence, and maintaining balance of progress and national economic unity and paragraph (5); Further provisions regarding the implementation of this article are regulated in the law.

This article is most violated by the existence of foreign investment law, as stated by. As a reminder, a series of records related to economic inequality in this country do not stop and come and go without any control and continue to be the source of the problem. First, the dredging and destruction of natural resources in this case exploitation without looking at the sustainability aspects of natural and environmental fate as well as its people.

Massive land clearing affects (forests and

animals), forests are depleting and wildlife habitat is increasingly narrowing and squeezed, not to mention coupled with weak supervision and governance that ignores the importance of environmental functions and benefits for the life of living things. The more frequent disasters occur, such as pollution, the more difficult it will be to survive. Second, the increasingly widespread rate of environmental damage and investment from investors (capital owners and market participants) inadvertently and uncontrollably affects the rights of people who are neglected.

Examples of congress formation of foreign- influenced laws as written Prayogo The involvement of the World Bank made the government change a number of laws including the National Education Act (No 20 of 2003), the Health Act (No 23 of 1992), the Electricity Act No 20 of 2002 , and the Act on Water Resources (No 7 of 2004). The National Education Act is the Penetration of Global Capitalism.²⁶ The spirit and substance of the Higher Education Law still cannot be separated from the co-optation of the interests of international financial institutions. There are two big discourses which are quite hegemonic in the development of higher education in third world countries, namely 'globalization of higher education' campaigned by the WTO and 'Higher Education reform' campaigned by the World Bank.²⁷

With regard to several laws that are considered entrusted or foreign global influences have been corrected, this can be proven through judicial review of the Law by the Constitutional Court of the Republic of Indonesia (MK), such as the Electricity Law where the government surrenders electricity management to the state according to the Constitutional Court. The 1945 Constitution, the provisions in the Electricity Act contains the concept of UNBUNDLING, the state does

26 Prayogo, Cahyo, MPR Harus Cegah Pembuatan UU Titipan Pihak Asing, https://www.wartaekonomi.co.id, (2014), p. 67

27 Umar, Ahmad Rizky Mardhatillah, UU Pendidikan Tinggi dalam Jerat Kapitalisme, https://indoprogress.com, (2013), p. 70

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not interfere in its implementation. In its decision, the Constitutional Court is of the view that the concept of the state cannot interfere in the matter of electricity in conflict with Article 33 paragraph 2 of the 1945 Constitution which states that production branches are important to the state and and control the lives of many people (in this case electricity) should be controlled by the state so that the state must not be indifferent and not responsible for it.²⁸ Other examples that have been decided by the Constitutional Court, such as the SDA Act, are contrary to the 1945 Constitution and do not have binding legal force. As a result of the issuance of the Water Resources Law, the government issued Government Regulation (PP) Number 16 of 2005 concerning the Development of Drinking Water Supply Systems (SPAM) Article 1 number 9 states that the organizers of SPAM development are State-owned enterprises of Indonesia (BUMN)/Regional- owned enterprises of Indonesia (BUMD), cooperatives, private business entities, or community groups. In fact, Article 40 paragraph (2) of the old Human Resources (SDA) Act has stated that the development of SPAM is the responsibility of the central / regional government. This means, PP Number 16 of 2005 is a covert privatization and denial of the constitutional interpretation of the Constitutional Court.

This condition has created a mindset of water managers that are always profit oriented with maximum profits for their shareholders. It is clear that the privatization articles contradict Article 33 of the 1945 Constitution, so they must be declared nullified.

Besides the influence of global capitalism in the formation of legislation in Indonesia, it is also influenced by sectoral egos in ministries and government agencies that propose the formation of legislation as happened in the formation of the Act No. 25 of 2004 concerning Regional Government

28 Palaguna, MK dan Perlindungan Terhadap Hak Ekonomi, Sosial dan Budaya,https://mkri.id, (2019), p.

85

and Law No. 25 of 2004 concerning the Development Planning System, there are differences in the legal basis for determining the Provincial Medium-Term Development Plan (RPJMD). In the Act No. 25 of 2004 the RPJMD is stipulated by a Governor Regulation, in the Act No. 23 of 2004 The RPJMD is stipulated by a Regional Regulation (Perda), whereas the principle of establishing a regional legal product is different from the Governor’s Regulation.²⁹ Conclusion

Studies on the formation of laws that are influenced by the interests of global capitalism have not been carried out, even though several countries that experienced an economic crisis, especially in 1997/1998, which used international financial services with capitalist wing such as Word Bank and the IMF were forced to make policies in the form of regulations in accordance with the wishes of the institution. Indonesia, one of the countries that experienced a crisis and initially used the services of the IMF, had to form legislation that was characterized by liberalism and capitalism, even though this understanding was very contrary to the view of Indonesian state administration.

The law that was formed after the 1997/1998 crisis by the Indonesian government and was allegedly influenced by global capitalism such as the Investment Law, which only pursues profit means that each SOE must benefit so that in practice there are irregularities, and misery for the public, such as the Oil and Gas Law, In the oil and gas law before being revoked by the Constitutional Court there is an article that states that the price of fuel oil is left to the market. The Electricity Law, and the Water Resources Law The Act was very clearly formed to liberalize the economy in vital sectors in Indonesia, whereas in the 1945 Basic Law it states that all state assets

29 Mahdi, Imam, Hukum Perencanaan Pembangunan Daerah, (Yogyakarta: Pustaka Pelajar, 2017), p. 28

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relating to people's lives are regulated and controlled by the state

The formation of a law is the elaboration of the material of the 1945 Constitution of the Republic of Indonesia and guided by the Pancasila as the State Ideology, the law must not deviate from the values of the Pancasila and contradicts the 1945 Constitution of the Republic of Indonesia. In this study it was found that the formation of many laws deviated. from the predetermined basics. The influence of foreign parties who want legality to foreign interests, especially relating to investment and control of natural resources. Besides that, the deviation is caused by lawmaking institutions that think pragmagically for their own interests, although it is difficult to prove such a bribe by certain parties so that the law is made, corruption against the formation of the law as said by Jokowi, Legeslative in making the Act because there are certain parties who have an interest. This also makes the policies issued less precise.

Many laws are made using sponsors, so there are many entrusted parties. As a result of legislation that is affected by global capitalism that has a major impact on foreign investment in Indonesia such as:

Foreign investment in the mining sector in Indonesia represents a real form of colonialism with the characteristics: First, the investment uses a very large land area, causing severed public access local to its economic sources such as land, forests and sea waters. Second, all investment needs such as capital goods, raw materials come from abroad. Third, the investment is only aimed at getting raw materials from dredging the earth of Indonesia, and then the processing is made in his own country. In conclusion, there is no industrialization process that makes a multiplier effect for the people of Indonesia.³⁰

To overcome this in Indonesia, if the formation of legislation is in conflict with the Constitution, then a judicial review can be

30 Daeng, Salamun, Invesment Colonial Model:

Critical Analysis on Investsment Law In Indonesia, https://igj.or.id, (2013), p. 70

submitted to the Constitutional Court (MK) and there have been several laws that were annulled by the Constitutional Court such as the Law on Water Resources Management and the Electricity Law.This can be emulated by other countries to anticipate the influence of global capitalism in the formation of legislation.

In the future researchers are expected to further explore the formation of laws, related to political interests, because the legislation product in addition to legal products is a political product.

Besides that, it is also important that the law is examined from the material.

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