Gender Equality and Justice in the Indonesian Law on Village

Dwi Rahayu Kristianti

Faculty of law, Univesitas Airlangga, Indonesia

Keywords: Gender, Equality, Justice, Indonesia, Village, Participation.

Abstract: Since the enactment of the Indonesian Law on Village in 2014, the village can actively participate as a subject

in national development. To achieve the stated development objectives, there is a need of legal guarantee for

all citizens to participate in the development. The concept of gender equality needs to be present in the norms

contained in the legislation and regulation on the village. Thus, this paper seeks to analyze whether there is a

guarantee of gender equality and justice in the legislation and regulation on the village relating to the women’s

participation. This study proposes the principle of gender equality and its importance for women in rural areas.

Furthermore, this study examines the principle of gender equality and justice in the Indonesian Law on

Village. It also discusses the indication of the legal form of gender equality and justice in Indonesia. This

article concludes that the Indonesian Law on Village has weak provisions concerning gender equality and

justice.

1 INTRODUCTION

Public attention was directed to the village in 2014.

The new rule, Law No. 6 of 2014 on Village,

promulgated on January 15, 2014. This was followed

by the enactment of the implementing regulations of

the Village Law in the same year through

Government Regulation No. 43 of 2014. The

attention is much levied because according to the new

legislation, villages will have funding from the state

budget to support the activities of village

administration and village development. Many

political figures use this issue to attract sympathy.

The academics do not miss to do the study, analysis

and criticism of the Village Law. Similarly, civil

society competes to prepare themselves to further

improve the affairs of the village. Also included in

this group are feminists who attempt to analyze the

Village Law from a women's perspective in order to

enable women to have a greater participation in the

village.

Gender equality is important for rural women, as

Rasmusson claims that 70 per cent poor people live

in rural areas and 43 per cent of whom are women.

Further, she argued that poor people would have

better life if women had equal access to several things

such as education, credit markets, and participation

(Rasmusson, 2013). This paper challenges the

Indonesian Law on Village from the gender

perspective. The objective is to comprehend the

adequacy of the Village Law for rural women to be

able to enjoy access that is essential to their lives

equitably and fairly.

Many women scholar started to use 'feminist

methods' to analyze social problems since the 1960s.

Basically, this ‘feminist methods’ include “(1) the

unmasking of patriarchy, (2) contextual reasoning,

and (3) consciousness-raising” (Levit and Verchick,

2016). This research uses the first method, namely the

unmasking of patriarchy. In this case, the technique

used is to propose "some women's questions" to open

up gender bias arising from laws that seems neutral.

This can be started by analyzing the legal

consequences of a legal norm application for men and

women. The aim is to find out whether or not the law

fails in considering gender-based experiences and

values (Levit and Verchick, 2016). In addition,

Indonesia has a legal rule regarding gender

mainstreaming, namely Presidential Instruction No. 9

of 2000 on Gender Mainstreaming Guidelines in

National Development.

The Annex of Presidential Instruction on Gender

Mainstreaming states that gender-based analysis is a

method which identify and understand the existence

and causes of gender inequality, including the

resolution of the problem. It is argued that gender

equality must be present in the access and control to

the resources, participation in the development

256

Kristianti, D.

Gender Equality and Justice in the Indonesian Law on Village.

DOI: 10.5220/0010051602560262

In Proceedings of the International Law Conference (iN-LAC 2018) - Law, Technology and the Imperative of Change in the 21st Century, pages 256-262

ISBN: 978-989-758-482-4

process, and equal benefits enjoyed. Moreover, the

application of gender based analysis has to consider

other factors such as social class, race, and nation.

This research is conducted in order to review

gender equality in the Indonesian regulation on

village. Analysis of the Indonesian Law on Village is

carried out by looking at whether the principles of

gender equality regulated in CEDAW have been

implemented by Indonesia as a state party. Further,

this study analyzes specifically the articles in the

Village Law which require certain educational

standards to fill positions within the village

government structure. The norm formulation in these

terms is neutral. However, it seems that the legislators

have failed to consider the experience of rural women

who generally do not have sufficient levels of

education to fulfill the requirements of the Village

Law. This certainly can have an impact on access to

women's participation in village governance.

Based on the issue and methods that have been

framed above, then there will be three sections that

will be discussed as followed.

2 GENDER EQUALITY AND ITS

SIGNIFICANCE FOR RURAL

WOMEN

Gender equality is a term that we may encounter very

often but lacks the appropriate understanding. Some

people still see and relate gender to women's affairs.

Therefore, in any seminars, discussions or other

meetings related to or discussing about gender mostly

women who attend, either as resource persons or

participants in the events. This proves a lack of

understanding of gender and gender equality that is

expected to be achieved in all areas. In fact, the

essence of gender equality can be achieved by the

good cooperation of both men and women.

Nowadays, many feminists have formulated what

is meant by gender and gender equality. The

development of the subject is also broad enough that

gender includes not only men and women (Oakley,

1972) (Williams, 2009), but also including

transvestites and people who are genderless (Butler,

1999). However, for the purpose of this paper, the

concept of gender is limited to what has been

formulated in the Indonesian positive law. This does

not mean to limit science, but solely to facilitate the

understanding of such concepts.

In the Indonesian legislation, the definition of

gender is formulated in the Annex of Presidential

Instruction No. 9 of 2000. It is stated in the point 2 of

its General Section that ‘gender is a concept that

refers to the roles and responsibilities of men and

women resulting from and may be altered by the

social and cultural circumstances of society’. It can be

examined from the definition that gender is not solely

a woman's business. Gender is more concerned with

the roles and responsibilities of men and women. In

addition, gender is also a result of social and cultural

practices of the community (Nugroho, 2008).

Furthermore, the Annex of Presidential

Instruction No. 9 of 2000 also formulates the concept

of gender equality expected in the national

development process. It states that ‘gender equality is

the equality of conditions for men and women to

obtain opportunities and rights as human beings, in

order to be able to participate in political, economic,

social, cultural, defence, and national security

activities and equality in enjoying the development

result’ (point 3 of General Section). One step ahead,

the Annex also sets forth a definition of gender justice

formulated as a process to be fair to men and women

(point 4 of General Section).

By looking at the formulation of gender concepts,

gender equality and justice, it can be argued that

governments have sought to make gender equality

and justice not merely a dream. National development

programs require good cooperation between all

parties, including both men and women.

At the international level, the UN Committee on

the Elimination of Discrimination against Women has

specifically issued a General Statement on Rural

Women. This General Statement was adopted on 19

October 2011 in the 50th CEDAW Committee

Session. The General Statement was made in

conjunction with the Millennium Development Goals

Realization effectively and thoroughly. Article 14 (1)

of CEDAW states that the State party shall pay

attention to the special problems faced by women in

rural areas and the role that rural women play in the

family's economic survival, including work on

economic sectors that are not considered as a money-

making work. The State party also shall take

appropriate measures to ensure the implementation of

the CEDAW for women in rural areas. Article 14 of

CEDAW provides the obligation for States Parties to

ensure rural women receive equal treatment, position

and access. This guarantee is necessary for women to

also enjoy equal facilities and benefits in rural

development.

Based on Article 14 of CEDAW, the General

Statement was stipulated. In this General Statement,

the Committee recognizes that rural women are

vulnerable to discriminatory action. Some things

related to the areas to watch for are empowerment;

Gender Equality and Justice in the Indonesian Law on Village

257

education and literacy; health; access to resources and

opportunities; agriculture, hunger, and poverty;

conflict situation; violence, trafficking in persons,

sexual exploitation and forced labour; and

participatory development (CEDAW Committee,

2011).

In summary, the CEDAW Committee is aware of

unfavourable circumstances for women as a result of

the social and cultural conditions of the countryside.

Whereas gender equality is necessary to achieve a

conducive atmosphere for development. In this case,

the empowerment for women is very necessary

because rural women still face discrimination in all

areas, regardless of the active women empowerment

program that has been done. By looking at it, the

empowerment of rural women still needs to be done

continuously. Another concern is the issue of

education and literacy for rural women. The UN

noted that two-thirds of the world's illiterate

population is female. This is due to the lack of rural

service programs aimed at women. Other obstacles

that women face related to this access to education are

distance to school, fear of experiencing sexual

violence on the way or at school, early pregnancy, as

well as responsibilities imposed on girls to do

household chores (CEDAW Committee, 2011).

Health problems are also often faced by rural women,

mainly pregnant women and childbirth. In 2011,

maternal mortality rates at birth are more prevalent in

rural areas than in cities. Of the 100,000 live births

there are 640 maternal deaths in rural areas. While the

number of maternal deaths amounted to 447 in urban

areas (CEDAW Committee, 2011). The high

maternal mortality rate in rural areas is due to the lack

of access to health services, the lack of trained

midwives and medical personnel, malnutrition, early

pregnancy, and difficult working conditions. Health

access for girls is also claimed to be difficult due to

the strong patriarchal culture in many traditional

villages which still prioritize boys. The next thing that

also concerns the CEDAW Committee is the

difficulty for women to gain access to resources and

opportunities. This problem is faced by rural women

because there are still many women who are illiterate.

It is worsen by discriminatory practices for women

related to the right to land and building ownership. It

is also found that there is inadequate access for rural

women to get decent jobs and income generating

opportunities. In general, employment opportunities

are limited. It is only the types of jobs that needed less

skills which leads to the less income (CEDAW

Committee, 2011).

The problems faced by rural women are also

related to agriculture, hunger and poverty. It has been

widely acknowledged that women play a major role

in tackling food insecurity and poverty, as well as the

importance of women's access to sustainable energy,

water, sanitation, education, nutrition and health.

However, funding distributed to support the program

turned out not to suit the needs. The CEDAW

Committee noted that only about 5.6 percent

agricultural aid between 2002 and 2008 made gender

as a focus. In addition, there is little development of

agricultural technology that can facilitate women in

their work (CEDAW Committee, 2011).

Another thing that is often overlooked about

women in rural areas is the support of women in

conflict situations. Lots of women bear the burden in

times of conflict and post-conflict situations, but

these conditions are repeatedly ignored. It is also

noteworthy that violence, trafficking, sexual

exploitation and forced labour are frequently

experienced by rural women. These are claimed

mostly caused by the poverty conditions experienced

by rural women. Lack of adequate employment

opportunities to earn sufficient income also

contributes to high levels of violence, human

trafficking, sexual exploitation and forced labour.

The CEDAW Committee recognizes that

women's participation is essential to sustainable

development. The role of women as agents of

development is absolutely necessary for the success

of development. The CEDAW Committee also

emphasizes that rural women and women's rural

organizations have the right to participate in decision-

making processes that affect their lives. Therefore,

the CEDAW Committee deems it necessary to

provide some recommendations for States Parties to

contribute to the achievement of gender equality in

rural areas (CEDAW Committee, 2011). It is said that

coordination and partnership with civil society is

needed to improve empowerment of rural women as

a whole. A more significant recommendation is to

include a gender-sensitive perspective on the design

and implementation of rural development policy and

program strategies.

The importance of gender equality for rural

women makes the state obliged to make gender-

sensitive laws on village. They also must integrate

gender equality as a goal of rural development.

Initially, it should be known the legal form of gender

equality guarantee that has been enacted in Indonesia.

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3 LEGAL FORM OF GENDER

EQUALITY IN INDONESIA

Indonesia is a State that concerns about the

importance of equality for every citizen since its

inception. This can be seen in the Indonesian

constitution as a supreme law. Historically, even

before the Universal Declaration of Human Rights

1948, the 1945 Indonesian Constitution guaranteed

human rights. Human rights principles contained in

the 1945 Indonesian Constitution are among others

the principle of equality and non-discrimination. This

can be seen in the formulation of Article 27 (1) of the

1945 Indonesian Constitution which states that ‘All

citizens shall be equal before the law and in

government and shall uphold the law and government

without exception.’ Furthermore, post-amendment of

the 1945 Indonesian Constitution, the principle of

non-discrimination is clearly set forth in Article 28I

(2) of the 1945 Indonesian Constitution which

guarantees that ‘Every person is entitled to be free

from discriminative treatment on whatsoever basis

and is entitled to acquire protection against such

discriminative treatment.’ Thus, it can be said that

regardless of gender and gender differences, men and

women have equal rights and opportunities in every

aspect of their lives. This includes the right to

participate in the development process.

At the international level, the UN General

Assembly adopted CEDAW in 1979 which was

drafted by the UN Commission on the Status of

Women. Article 1 CEDAW agrees that

discrimination against women shall mean any

distinction, exclusion or restriction made on the basis

of sex, which has the effect or purpose of reducing or

eliminating the recognition, enjoyment or use of

human rights and fundamental freedoms in the

political, economic, social, cultural, civil or any other

field by women, irrespective of their marital status,

on the basis of equality between men and women. It

is further stipulated in CEDAW that each State party

has to undertake efforts to eliminate discrimination

against women in all fields by including, among other

things, the principle of equality of men and women in

the national constitution and other laws (Article 2 (1)

of CEDAW). Another obligation is to make laws and

regulations in all areas that can ensure women's

empowerment and development. This aims to ensure

that women can exercise and enjoy human rights and

fundamental freedoms on an equal basis with men.

(Article 3 of CEDAW).

Indonesia has ratified CEDAW through Law No.

7 of 1984. This makes Indonesia legally bound as a

State Party to the Convention. One of legal

consequences and responsibilities that must be

implemented by Indonesia is to harmonize the

existing legislations in line with CEDAW’s principles

in order to ensure equality.

As a result, Presidential Instruction No. 9 of 2000

on Gender Mainstreaming in National Development

has been issued. The President of Indonesia at the

time, Abdurrahman Wahid, was very aware of the

need for a gender mainstreaming strategy into the

whole process of national development. Gender

mainstreaming is a strategy to integrate gender into

an integral dimension of planning, compilation,

implementation, monitoring and evaluation of

national development policies and programs. In the

Presidential Instruction, the President instructed the

whole range below him from the Minister; Head of

Non Departmental Government Institution; Head of

Secretariat of the Highest/High State Organs;

Military Commander; Chief of Police; Attorney

General of the Republic of Indonesia; up to the

Governor and Regent/ Mayor. The first instruction is

to carry out gender mainstreaming for the

implementation of planning, compilation,

implementation, monitoring and evaluation of

policies and programs of national development with

gender perspective in accordance with the field of

duties and functions, and their respective authorities.

The second instruction is to pay serious attention to

the Guidelines for Gender Mainstreaming in National

Development.

Normatively, it can be said that Indonesia has

sought to ensure gender equality in all fields.

However, this principle of gender equality is not

clearly seen in some legislation. For example, the

Indonesian Law on Marriage. It regulates the age

limit for marriage. Article 7 paragraph 1 of the

Marriage Law stipulates different age limits for men,

namely 19 years old, and women, 16 years old. The

age limit of 16 years old for women is certainly not in

accordance with the definition of the child specified

in the Convention on the Rights of the Child. The

Convention stipulates in Article 1 that ‘[F]or the

purposes of the present Convention, a child means

every human being below the age of eighteen years

unless under the law applicable to the child, majority

is attained earlier’. Indonesia has ratified the

Convention in 1990 and this made Indonesia legally

bound by the rules of this Convention. In addition,

Indonesia also has a Law on Child Protection that is

in line with the Convention regarding the age limit of

a child. It can be said that the rules in the Marriage

Law as a legalization of the practice of child

marriage. Child marriage, results in failure to

complete the 12-year compulsory education and

Gender Equality and Justice in the Indonesian Law on Village

259

contributes to the high rates of Maternal and Child

Mortality. The Bill on Amendments to Marriage Law

has been proposed for changes since 2002, especially

to stop the practice of child marriage (Koalisi

Perempuan Indonesia, 2017). However, up until now

still there is no amendment to the Marriage Law from

Parliament. What was quite a relief that finally in

December 2018, the Indonesian Constitutional Court

ruled in the constitutional review of the Marriage Law

that the age limit provision for women were in

constitutional. Further the Constitutional Court

instructs the Parliament to amend the provision within

three years (Constitutional Court Decision No.

22/PUU-XV/2017).

4 GENDER EQUALITY IN THE

INDONESIAN LAW ON

VILLAGE

As discussed above, the enactment of the Village Law

emphases on the village management improvement

program. Previously, gender rarely becomes a focus

in almost all development program. Thus, this part

reviews the gender perspectives in the Village Law.

It is argued that the Village Law should contain

elements of gender perspectives. It also should place

gender equality as one of the village development

goals. It is acknowledged that women play an

important role in sustainable development. However,

policies are often not gender-responsive (UN

Committee, 2016).

The Village Law does not explicitly state the need

for gender equality in village governance. Article 3

states village governance principles that include

democratic, participation, equity and empowerment

which may be interpreted as a way to incorporate

gender perspectives in every village program.

Furthermore, as explained in the Elucidation of the

Village Law, it is described that democracy is ‘the

system of organizing the village community in a

system of government carried out by the villagers or

with the consent of the village community and the

respect of human dignity as the creature of God

Almighty is recognized, arranged and guaranteed’.

The principle of participation is expressed as actively

participating in an activity. And the principle of

equality is defined as equality in position and role.

Meanwhile, the principle of empowerment is an effort

to improve the living standards and welfare of the

village community through the establishment of

policies, programs and activities in accordance with

the essence of the problems and priorities of the needs

of the village community. The definition contained in

the Elucidation of the Village Law still cannot be

explicitly read about gender equality. However, it can

be seen that these principles apply to all villagers. In

this case, the villagers in question are not

differentiated on any grounds including gender.

Hence, it is necessary to see the articles in the

Village Law to get better understanding whether the

gender perspective has enshrined in the Village Law.

One of the articles that can be seen is Article 56 (1)

stating that ‘the members of the Village Consultative

Body are representative of the villagers based on the

representation of the area whose appointment is done

democratically’. It is said that representation only

based on territory. However, Article 58 (1) stipulates

that ‘the total number of the Village Consultative

Body members shall be determined at a maximum of

5 (five) persons and at most 9 (nine) persons, taking

into account the territory, women, population and

financial capacity of the Village’. Normatively,

Article 58 (1) can strengthen support for women

representation in the Village Consultative Body.

However, Article 57d of the Village Law requires that

a prospective member of the Village Consultative

Body must have secondary school (or equivalent) as

the lowest education completed. As has been

reviewed by the CEDAW Committee in its General

Statement, rural women are usually the ones who lack

access to education. Thus, the minimum requirement

of this education is unfavorable for women in their

effort to fill positions in the Village Consultative

Body.

A similar article that can also be criticized is

Article 33d of the Village Law which requires a

village head candidate to graduate from junior high

school (or equivalent). Likewise, Article 50 (1)

requires village apparatus graduate from high school

(or equivalent). Through such requirements, it is

almost certain that rural women, especially in

traditional villages, do not have access to become

Village Heads, Village Apparatuses or become

members of the Village Consultative Body. This

support the argument that rural women are often

marginalized in decision-making and leadership

positions almost in all countries (FAO, 2012). Yet

women's representation and participation in village

development is desirable to achieve a strong,

advanced, independent and democratic village.

More broadly, it can be seen in other regulation

concerning village. In this case Government

Regulation No. 43 of 2014 on the Implementation of

Law No. 6 of 2014 on the Village. Article 72 (1) states

that the appointment of the Village Consultative Body

membership is carried out democratically through the

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process of direct election or deliberation of

representatives by ensuring the representation of

women. Article 80 (3) regulates that village meetings

are attended by the Village Government, the Village

Consultative Body and community elements

(including representatives of community groups).

Lastly, Article 127d stipulates that community

empowerment is done by preparing planning and

budgeting in favor of the poor, disabled person,

women, children and marginal groups.

The Government Regulation No. 43 of 2014

definitely needs support from other parties to

maintain gender equality as one of the main focuses

in village development. This can be achieved by

taking into account Article 72 (4) Government

Regulation No. 43 of 2014 which states that the

establishment of the Village Consultative Body

appointment mechanism shall be carried out in

accordance with the Regency/City Regulations.

Furthermore, Article 80 (3) stipulates that the rules

and mechanisms of decision-making in the village

meetings are regulated by Ministerial Regulation.

Hence, the Regent/Mayor, also the relevant Minister,

are expected to integrate gender perspectives and

ensure the existence of gender equality in all

regulations.

Rural women face obstacles which come from

tradition, practices, and assumption that deny

women’s participation in economics, social and

politics (Romli, 2015). It is argued that biased and

unfair practices and traditions is accepted

disproportionately by rural women (Rasmusson,

2013). Thus, law must certainly regulate gender

equality and justice to overcome the strong

patriarchal culture and traditions in rural areas.

5 CONCLUSIONS

Gender equality is an equal condition for men and

women to obtain their rights as human beings, in

order to be able to participate in political, economic,

social, and cultural activities. This also means the

equality in the enjoyment of the development. In the

meantime, gender justice is defined as a process to be

fair to men and women. In every process of

governance, gender equality is needed to ensure the

success of a program, including village development

program. Gender equality is indispensable in ensuring

rural development which is advanced, independent,

and democratic.

Gender equality is important for women in rural

areas to make women's situation better. This can be

marked by the existence or easy access for rural

women to things that matter in life. The CEDAW

Committee has formulated in the General Statement

the support for rural women to achieve gender

equality and justice.

The legality of gender equality has been regulated

in various Indonesian Laws. Some of them are Law

No. 7 of 1984 on the Ratification of CEDAW, and

Presidential Instruction No. 9 of 2000 on gender

mainstreaming. Both Laws can be regarded as the

umbrella law in ensuring gender equality in the

administration of government, including village

government.

Considering gender equality, the Village Law

does not explicitly regulate it. The Village Law

contains some principles that can be used as a basis

for the principle of gender equality in village

government. These principles include democratic,

participation, equality, and empowerment. However,

further provisions in the Village Law implies that the

principle is underestimated when gender is used as a

focal point.

The further rule of the village is The Government

Regulation No. 43 of 2014. It has more explicitly set

about gender equality. Of course, the regulation

solely is not sufficient to ensure gender equality in the

practice of village governance. It needs support from

other parties such as Regent/Mayor, and related

Ministers to make laws that further strengthen this

gender equality.

Law on villages, whether in the form of Law or

Government Regulation, is still lacking in gender

equality. Therefore in-depth studies are needed to

further support for gender equality in the practice of

village governance and village development

programs.

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