RECONSTRUCTION OF LEGAL PROTECTION FOR FOR HAJJ AND UMRAH APPLICANT IN INDONESIA BASED ON JUSTICE VALUE

1. Doctorate Student of Faculty of Law Sultan Agung Islamic University Semarang, Indonesia. 2. Faculty of Law Sultan Agung Islamic University Semarang, Indonesia. ...................................................................................................................... Manuscript Info Abstract ......................... ........................................................................ Manuscript History Received: 22 December 2019 Final Accepted: 25 January 2020 Published: February 2020

The purpose of this study is to find and analyze the legal protection for Hajj and Umrah Applicant as it is yet based on the value of justice and To find out and analyze the reconstruction of legal protection for hajj and Umrah Applicant based on the value of justice. The approach method used is normative juridical. The type of legal research used is descriptive analysis. The approach applied to discuss the above problems through a statute approach, a case approach, a historical approach, a comparative approach and a conceptual approach.  (1) The amount of BPIH is determined by the President no later than 30 (thirty) days after the BPIH proposal receives approval from the DPR RI. (2) The amount of BPIH as referred to in paragraph (1) sourced from Bipih (Hajj Cost), Benefit Value, Efficiency Fund, and / or other valid sources based on the provisions of the legislation is determined by the President upon the proposal of the Minister after obtaining approval from the DPR RI. (3) The amount of BPIH as referred to in paragraph (1) sourced from the state income and expenditure budget shall be determined in accordance with the mechanism of the statutory provisions, Article 49 reads (1) Payment of pilgrims deposit includes: a. initial deposit funds of Bipih; and b. Bipih settlement payment funds. (2) Payment of the pilgrimage deposit as referred to in paragraph (1) is deposited into the account of the Hajj Financial Management Agency at BPS Bipih. (3) The amount of payment for the initial deposit of Bipih as referred to in paragraph (1) letter a is determined by the Minister. (4) Funds for Bipih settlement as referred to in paragraph (1) letter b shall be made after the amount of Bipih is determined by the President, Article 50 reads (1) Bipih that has been deposited through BPS Bipih is returned together with the Benefit ISSN: 2320-5407 Int. J. Adv. Res. 8(02), 1374-1381 1375 Value if: a. the portion is not utilized by the heirs of the Hajj Pilgrims who died before leaving for the Hajj; b. Hajj Pilgrims who cancel their departure for a valid reason; or c. The Hajj are canceled for legal reasons. (2) Returns of Bipih as referred to in paragraph (1) are given to the Pilgrims, the person authorized, or their heirs. (3) Hajj pilgrims whose departure is canceled as referred to in paragraph (1) letter c, must receive written notice from the Minister. (4) Return of Bipih as referred to in paragraph (1) shall be given no later than 30 (thirty) days from the time the Hajj Congregation has died, canceled his departure for reasons outside of his force, or canceled his departure by his own.

…………………………………………………………………………………………………….... Introduction:-
Umrah and Hajj is the fifth pillar of Islam after the shahada, prayers, zakat and fasting which must be carried out by every Muslim, but in the recent year, many reports about fraud by travel agents or Umrah and Hajj travel agents make the community or Applicant pilgrims feel scared and feel be harmed both morally and materially. Moreover what often happens is the existence of fraud in the journey of Umrah, because Umrah can be done at any time. In the establishment of these Umrah travel travel agents may not directly carry out the Umrah business but must have permission from the relevant ministry.
An example is the case of Umrah and Hajj travel agency fraud committed by First Travel. PT. First AnugrahKaryaWisata was originally a travel agency that only offers domestic and international travel services for clients and companies. Two years after the agency's initial release, PT. First AnugrahKaryaWisata penetrated into the Umrah pilgrimage business. Umrah agents themselves were founded in early 2011. At the beginning of the establishment of First Travel (FT), offering promo prices. The promo price in question is opening a new low-cost umrah package at a price that is below standard. Previously, Applicant pilgrims were fooled by the cheap umrah promo at a price offered of Rp. 14,300,000 / person. While prices on the market are around Rp. 19,000,000 -Rp. 20,000,000 / person. It turned out that the method was carried out by the First Travel since 2016. With this very cheap offer, the company received many pilgrims and sent a small portion of them. The following year, they again received registration and piled up with Applicant pilgrims who had registered earlier. In this case, from the First Travel data search, the total number of worshipers who registered in December 2016 to May 2018 there were 72,682 people and 58,682 people had not been dispatched. Of the tens of thousands of Applicant pilgrims whose unclear departure, First Travel pocketed Rp884,700,100,000.00. The FT also offered a low-cost promotion under the Ministry of Religion's decree, which was Rp. 14,300,000. For this case, the director of First Travel was charged with Article 55 in conjunction with Article 378 and 372 of the Criminal Code concerning Fraud and Embezzlement and validity of Law No. 19 of 2016 concerning ITE.
The fraud case of Umrah pilgrims is also a violation of the consumer protection law. Based on Article 1 paragraph 1 of Law Number 8 of 1999 concerning Consumer Protection, consumer protection is all forms of efforts that guarantee legal certainty in order to provide protection to consumers. Legal certainty represents all efforts to empower consumers to obtain or make choices about goods and / or services according to their needs, and try to defend and defend their rights if harmed by business providers providing consumer needs. However, the law has not provided legal certainty for Umrah and Hajj pilgrims who have been victims of fraud.
And so that the Applicant pilgrims and pilgrims who are deceived by travel agents licensed by the government to keep going so that it meets the value of justice. Then it is necessary to stipulate a legal reconstruction related to this matter. Therefore, the authors conduct a study with the following issues : 1. Why is legal protection for Hajj and umrah Applicant currently still not based on the value of justice? 2. How is the reconstruction of legal protection for Applicant of Hajj and umrah based on the value of justice?

Method of Research:-
The paradigm that is used in the research this is the paradigm of constructivism which is the antithesis of the understanding that lay observation and objectivity in finding a reality or science knowledge. Paradigm also looked at 1376 the science of social as an analysis of systematic against Socially Meaningful Action through observation directly and in detail to the problem analyzed.
The research in writing this dissertation is a qualitative research . Writing aims to provide a description of a society or a certain group of people or a description of a symptom or between two or more symptoms.
Approach ( approach) the research is to use the approach of Socio-Legal , which is based on the norms of law and the theory of the existing legal enforceability of a sociological viewpoint as interpretation or interpretation .
As for the source of research used in this study are : 1. Primary Data, is data obtained from information and information from respondents directly obtained through interviews and literature studies. 2. Secondary Data, is an indirect source that is able to provide additional and reinforcement of research data.
Sources of secondary data in the form of: Primary Legal Material and Secondary Legal Materials and Tertiary Legal Material.
In this study , researchers used data collection techniques, namely literature study, interviews and documentation. In this study, the researcher is a key instrument that is the researcher himself who plans, collects, and interprets the data. Qualitative data analysis is the process of searching for, and systematically compiling data obtained from interviews, field notes and documentation by organizing data into categories, describing it into units, synthesizing, compiling into patterns, selecting important names and what will be studied and make conclusions.

Reasons Why The Current Legal Protection For Hajj And Umrah Applicant Is Not Yet Based On The Value
Of Justice: one of the functions of law is that it protects the public from events that can harm and inflict pain to the lives of other people, society and the holders of power .
In addition, the law serves to provide justice to every citizen as well as a means to realize prosperity for all people. entitled to get compensation for the suffering he suffered; it is possible to obtain compensation through formal (legal) and informal arrangements.
As for ways to do protection through specific things, are : In the Form of a rule (by giving regulation), with the aim to: 1. Facilitating or providing rights and obligations 2. giving guarantees for legal subjects .  (2) the amount of savings that has received the portion as referred to in paragraph (2) is declared valid after being transferred to the account of the Minister of Religion at the Receiving Bank for Hajj Travel Fee Deposit (BPS-BPIH) and has been registered at the Office of the Ministry of Religion / City of residence.The initial deposit registration amounting to Rp. 20,000,000.00 was raised on May 3, 2010 to Rp. 25,000,000.00, with consideration to reduce the rate of increase in the number of prospective pilgrims. An interesting issue that accompanies the management of the funds for organizing the pilgrimage comes from the initial deposit of the registration of prospective pilgrims, that is : 1. For Hajj organizers (Ministry of Religion) faced with the problem of accountability in managing the initial fund for registering prospective pilgrims to Rp.25,000,000.00 per person for the period from the time the Hajj portion enters the Siskohat (Computerized Hajj System managed by the nation) until the time of departure concerned.
2. How the legal ownership of the initial fund registration of the prospective pilgrimage, namely the prospective pilgrims concerned or the government as the organizer of the pilgrimage. The status of ownership of the initial deposit for Hajj registration becomes very important with regard to the mechanism of the registration system throughout the year, whether it is an administrative process or a binding legal agreement. In a civil case, both an administrative process and a binding legal agreement will cause legal problems that have legal consequences, especially regarding rights and obligations.
3. Law No. 13 of 2008 gives the authority to carry out efficiency in the implementation of the hajj pilgrimage, which is accommodated in Dana Abadi Umat (DAU). The amount of funds derived from the efficiency of the implementation of the pilgrimage, which is accommodated in the DAU is very large. Until now it has not been able to be used, because there are no government regulations governing the management of the DAU, and it has been frozen since May 2005. Policies to make efficiency in the implementation of the pilgrimage contain legal gaps in the fields of state law and religious law. In the field of religious law, even though DAU is for the benefit of the people, how is the sincerity of the Hajj pilgrims concerned. Very important to be considered is the pledge and sincerity of the Pilgrims is limited to financing the pilgrimage. In the field of state law, the results of the study show that there is no clause stated by the Hajj Pilgrimage regarding the agreement on the utilization of the remaining costs of organizing the hajj pilgrimage, and there is not a single clause that states that in the implementation of hajj pilgrimage efficiency will be carried out. Thus the efficiency policy carried out in the organization of the Hajj which is then accommodated in the Dana Abadi Umat is in violation of state and religious law. 4. In its development, the Hajj Candidates can become a banking business commodity by offering the pilgrimage bailout system. In this case the prospective pilgrims get a loan facility of Rp. 25,000,000.00 to be able to register to go to the pilgrimage so they immediately get the portion of the pilgrimage. In other words, the banking business is capturing a good market opportunity to expand customers, by providing a pilgrimage fund to fulfill the wishes of prospective pilgrims soon to get the portion of the hajj so it is not too far off in the waiting list.
Since the Government of the Republic of Indonesia c.q. The Ministry of Religion implemented the Hajj registration policy through the whole year, in 2006, in 2010, approximately 816,000 people had registered as Hajj Pilgrims, so they were included in the waiting list, with a timeframe for the next 5 years. The registration system policy throughout the year has had a number of less positive effects both for the organizers of the hajj pilgrimage and for prospective pilgrims, including: Registrants between districts. As a result of the long waiting list for the departure of the pilgrimage, more or less 7 years, many pilgrims try to register in other areas where the waiting list is relatively short. This has a negative impact on prospective pilgrims in an area, because it competes with prospective pilgrims outside the area who register through their area. As a result, for a region, province or district / city, with a large quota, prospective pilgrims who register a little should be a short waiting list. However, because there are many applicants for pilgrims from outside the region, even though in the area the number of registrants for local pilgrims is small, but the waiting list is long. The main problem in this case is how prospective pilgrims from outside the area have a local Identity Card as a condition for registration of prospective pilgrims. In fact the prospective pilgrims concerned are also not residing in the area of registration, but still residing in the area of origin. This concerns the resolution of crossministerial issues because the implementation of hajj is within the authority of the Ministry of Religion while the population with proof of Identity Card is within the authority of the Ministry of Domestic Affair. 1379 Mutations between Districts. Psychologically the Indonesian nation has the characteristics of kinship closeness, both based on blood relations or social relationships. This does not affect the location of residence between them one another, either because of the distance or limited by geographical location and the jurisdiction of government. In the implementation of the pilgrimage among them have the desire to be able to go on the pilgrimage together with relatives who register and reside in other areas. In this case, an administrative effort called mutation between regions is needed, namely the move from the area where the prospective pilgrims register themselves to other regions where they wish to depart. The government, in this case the Ministry of Religion, stipulates that transfers between regions are only allowed in the case of transfers between provinces and are limited to the interests of husband or wife and children which must be proven by a marriage certificate and family card. This has caused much disappointment in some prospective pilgrims.
The implementation of the pilgrimage is a national task and concerns the dignity and good name of the nation, the activities of organizing the pilgrimage are the responsibility of the Government. However, community participation is an inseparable part of the system and management of the pilgrimage. Community participation is represented in the implementation of special Hajj and Umrah guidance that grows and develops in the community. For proper public participation, regulation, supervision, and control are needed in order to provide protection to pilgrims. In the context of the pilgrimage guidance and guidance, Article 7 letter a states, that the Pilgrims are entitled to receive guidance, service, and protection in carrying out worship. Hajj, guidance for Hajj rituals and / or other material, both in the country, on trips, and in Saudi Arabia.
Article 29 paragraph (1) letter a states that in the context of the Pilgrimage Development, the Minister establishes the mechanism and procedures for the Pilgrimage; and guidance on guidance, guidance on rituals, and Hajj travel guides. Furthermore, paragraph (2) states that the guidance referred to in paragraph (1) shall be carried out without collecting additional costs from the Hajj pilgrimage outside the stipulated BPIH. Community participation in the guidance of the Hajj is determined in Article 30 paragraph (1), that in the context of the Hajj Development, the community can provide Hajj guidance, both individually and by forming a guidance group. In paragraph (2) it is stated, that further provisions regarding the guidance of Hajj by the community as referred to in paragraph (1) are regulated by Ministerial Regulation. The implication of this provision is a tug of war in terms of guidance for pilgrims, namely on the one hand the government provides opportunities for the community in guiding pilgrimage candidates, on the other hand the government gives the role of the Office of Religious Affairs (KUA) to guide the pilgrimage to pilgrims with an independent program, namely the orientation of the ability to carry out their own pilgrimage without assistance other than the mentor that has been determined by the government. From this policy it appears that there is a dualism of the pilgrimage guidance program, by reducing the community's opportunity to conduct guidance as determined by law. Basically, the role of the community in the guidance of the pilgrimage is a system in the implementation of worship, as determined in Article 8 paragraph (4) Implementation of the Hajj as referred to in paragraph (1) and paragraph (2) is carried out by the Government and / or society.
For Indonesian Hajj pilgrims, they do not yet have guaranteed adequate protection against these crimes, due to various reasons, including no legal authority for Indonesian security forces sent to Saudi Arabia to conduct security operations, even if only for Indonesian Hajj Pilgrims. The security forces of the Kingdom of Saudi Arabia are on standby, but language and communication difficulties are obstacles.
To be able to provide a comprehensive rationale for the regulation of the implementation of hajj pilgrimage in Indonesia, it is necessary to pay attention to the data and theories presented in the following description. In the implementation of the hajj pilgrimage, the role of the government is not only in terms of both direct and indirect control, but also conducts direct operations as stipulated in Ministry of Religion has a dual role or function, namely acting as a regulator, namely the authority to issue policies, both systems and management, in the form of laws and regulations, and at the same time acting as an operator, which is to directly implement the system and management of the pilgrimage.
This is the main problem in the legal system in Indonesia. Positive law regarding the operation of hajj is one of the fields in the legal system in Indonesia. Positive law is all of the legal methods that we aspire to give effect to events 1380 in a particular association of life. Further studies are about the consistency of the positive law on the implementation of hajj to find out whether there is conflict with other laws and regulations in the legal system in Indonesia.
Normatively, Law No. 13 of 2008 are based on iedereen wordt geacht de wet te kennen, means that it has the power to apply and bind all citizens involved in organizing the hajj pilgrimage, both organizers of hajj pilgrimage and Umrah. Materially in Law No. 13 of 2008 there are provisions that can cause interpretative negativity, which can be used as a legal basis for an irregularity or violation so that it has aspects of legality, for example regarding the Endowment Fund, ownership rights of registration money for prospective pilgrims in the waiting list status and accountability.
Government hegemony as regulator and operator, as well as policy inconsistencies towards the implementation of regular route and special hajj route (plus), require proportional monitoring. Monitoring of government performance in the case of hajj is carried out using the normative juridical method. The inconsistency of positive law is a consequence of its existence in a legal system. The tradition of rational and atomistic thinking (by dividing and sorting out), which then develops by seeing nature as a systematic, mechanistic, linear and deterministic institution. Cartesian-Newtonian thought is what later inspired positivists who want that even modern law must be understood, worked on and implemented systematically, logically and rationally. There is always a close relationship between legal institutions and the development of community organizations. The relationship is theoretically described as a form of institutionalization of law, which starts from its simplest form to a complex form, in accordance with the development of society.
The nature of law lies in the element of command. The law is the command of the authorities. Law is seen as a fixed, logical and closed system. It is said to be a "closed" system because only the authorities can determine what is allowed and what is not allowed. The ruler, with his power can enforce the law by scaring and directing one's behavior in the direction he wants.
This matter can be observed with illustrations of typologies of power and law in the New Order state, that what constitutes law is what political power and control want for the interests it wants. The legal type is repressive in nature, requiring a level of submissive compliance. Law is a legitimate tool for programs or the goals of the executive and reflects the will of those in power.
Besides this the simplest criticism of positive law is that there are many deficiencies in regulation, in other words nothing is perfect. It is not uncommon to find that, laws and regulations are incomplete, unclear, do not regulate or regulate but are not in accordance with the development of what the community needs.
Basically, the protection of the rights and interests of the Hajj pilgrims is intended in the context of law enforcement, because in it there is the concept of organizing the pilgrimage in an orderly manner so as to create justice, legal certainty and social benefits for the Pilgrims. That the law contains abstract ideas or concepts, which include justice, legal certainty, and social benefits, must be realized in reality. The process of manifesting abstract ideas into reality is actually a process of law enforcement. Law enforcement of consumer protection is realized by a law that is needed as a basis for the realization of ideas in reality. Analogically in the organization of the pilgrimage, the legal position of the pilgrims and the government as the implementation of the pilgrimage, as well as consumers and consumers. The need for consumer protection laws because of the weak position of consumers compared to the position of producers because of the initial process to the results of production without the slightest consumer intervention. (2) Returns of Bipih as referred to in paragraph (1) are given to the Pilgrims, the person authorized, or their heirs. (3) Hajj pilgrims whose departure is canceled as referred to in paragraph (1) letter c, must receive written notice from the Minister. (4) Return of Bipih as referred to in paragraph (1) shall be given no later than 30 (thirty) days from the time the Hajj Congregation has died, canceled his departure for reasons outside of his force, or canceled his departure by his own.