CHECKS AND BALANCES IN THE ESTABLISHMENT OF VILLAGE REGULATIONS

Abstract

The village is a community unit under the Regency/City. In the administration of government, it is given the authority to form legal products in the village, one of which is in the form of village regulations, the purpose of which is to regulate the lives of village communities in accordance with the authority of the village government. In the formation of Village Regulations, a checks and balances mechanism is needed to maintain a balance in carrying out their authority and supervise each other between them. The checks and balances mechanism in forming Village Regulations starts from the process of drafting Ranperdes, discussions, determinations to promulgation, also through evaluations from the mayor/regent of certain village regulations and also reporting of village regulations that have been promulgated for their guidance and supervision.

Keyword: Village Regulations, Formation and Checks and balances.

1.Introduction

Article 18 of the 1945 Constitution stipulates that the Unitary State of the Republic of Indonesia is divided into provincial areas and the province is divided into regencies and cities, each of which has a regional government which has the right to stipulate regional regulations or other regulations to carry out autonomy and co-administration tasks. The law that regulates Regional Government (Pemda), namely Law (UU) No.23 of 2014 concerning Regional Government as has been amended by as amended several times, as has been amended several times, most recently by Law Number 9 of 2015 concerning Second Amendment to Number 23 of 2014 concerning Regional Government. Law No. 23 of 2014 confirms that in Regency Government there is a Village Government. Regulations regarding Villages are regulated in Law No. 6 of 2014 concerning Villages (hereinafter referred to as the Village Law). In Article 5 paragraph (1) it is stated that the Village is domiciled in the Regency/City area, and in paragraph (2) it is determined that the Village consists of Villages and raditional Village or what is called by another name. What is referred to as a village is a legal community unit that has territorial boundaries that are authorized to regulate and manage government affairs, the interests of the local community based on community initiatives, origin rights, and/or traditional rights that are recognized and respected in the government system of the Unitary State of the Republic of Indonesia.

              Indonesia as a legal state as affirmed in Article 1 paragraph (3) of the 1945 Constitution in the administration of its government must be based on applicable laws/statutory regulations, therefore for villages one form of regional legal product that can be formed to regulate the life of rural communities is Village Regulations (Village Regulations). village regulation). Village Regulations are statutory regulations established by the Village Head after being discussed and agreed with the Village Consultative Body (BPD) (Article 1 point 7 of the Village Law) Government Regulation of the Republic of Indonesia Number 43 of 2014 concerning Implementing Regulations of Law Number 6 of 2014 concerning Village (PP 43/2014) and Regulation of the Minister of Home Affairs of the Republic of Indonesia Number 111 of 2014 concerning Technical Guidelines for Village Regulations (Permendagri 111/2014). The Village Regulation contains material on the implementation of village authority and further elaboration of higher legislation (Article 4 Permendagri 111/2014). Although the Perdes is not contained in the hierarchy of statutory regulations as regulated in Article 7 paragraph (1) of Law No. 12 Year 2011 concerning the Establishment of Legislation (UUP3), but its existence is still recognized based on article 8 Law No.12 year 2011.

              The institution that is given the authority to form a Village Regulation is the Village Head Together with the Village Consultative Body (BPD). The BPD is a legislative institution at the village level and is the embodiment of democracy at the village level. BPD members are representatives of village communities who have certain authorities. In order to support the success of village governance, especially in the formation of Village Regulations, it is necessary to have cooperation between the Village Consultative Body (BPD) and the Village Government in the formation of Village Regulations. Therefore, it is necessary to understand the roles and patterns of clear relationships from each of these institutions so as to create checks and balances between the village government and the BPD. governance, especially in the formation of Village Regulations. A checks and balances mechanism is needed. according to Akil Mokhtar is a consequence as a democratic state of law. The Checks and Balances mechanism is needed to maintain a balance between state institutions or what we usually call the branches of state power. The question then is whether checks and balances are needed in the administration of village governance, especially in the formation of village regulations and have checks and balances been reflected in the formation of village regulations in existing laws and regulations?

2.Discussion

2.1.Urgency of Village Regulations and Checks and Balances.

The existence of the Village Regulation as one of the regulations in the village has been guaranteed in Article 8 of Law No. 12 of 2011 which stipulates that: (1) Types of Legislation other than those referred to in Article 7 paragraph (1) include regulations stipulated by the People's Consultative Assembly, the Council People's Representatives, Regional Representatives Council, Supreme Court, Constitutional Court, Supreme Audit Agency, Judicial Commission, Bank Indonesia, Ministers, bodies, institutions, or commissions of the same level established by law or by the Government by order of Law, the House of Representatives Provincial Region, Governor, Regency/City Regional People's Representative Council, Regent/Mayor, Village Head or equivalent. Furthermore, in paragraph (2) it is stated that: The statutory regulations as referred to in paragraph (1) are recognized for their existence and have binding legal force as long as they are ordered by a higher statutory regulation or are formed based on authority. Thus, the Village Regulation is one type of legislation to regulate the life of village communities.

              The urgency of the village regulation cannot be separated from Indonesia's position as a state of law as regulated in Article 1 paragraph (3) of the 1945 Constitution. As a state of law, all actions of the government and society must be based on the law. The law regulates not only for the national, regional, local scale and even the smallest community unit, namely the village. The condition of Indonesia which consists of many villages where most of the Indonesian people live in villages, and is also a country that has different conditions such as: ethnic diversity, religion, race, culture, natural resources, human resources, different community needs. With a large area, and diverse customs, it is necessary to have regulations that are in accordance with the needs of the local village community. The importance of Village Regulations also aims to accelerate the realization of community welfare through improvement, service, empowerment, and community participation, as well as increasing regional competitiveness by taking into account the principles of democracy, equity, justice, privilege and specificity of a region in the system of the Unitary State of the Republic of Indonesia. For this reason, it is necessary to prepare a Draft Village Regulation as a basic tool for legitimizing the administration of village government and as a function of controlling government and development in the village.

              In the administration of government in the village, the relationship between the village government and the BPD as the village legislative body, must be carried out based on the principle of checks and balances. The principle of checks and balances is a constitutional principle that requires that the legislative, executive, and judicial powers be equal and mutually control each other. In the realm of village administration and in the context of the formation of a Village Regulation, this principle can be observed in the pattern of relations between the village government and the BPD as the institution authorized to form the Village Regulation. This is to avoid the abuse of power by a person or an institution, or also to avoid the concentration of power on a person or an institution, because with a mechanism like this, one institution will control or supervise each other, and can even complement each other.

              2.2. Relationship Pattern between Village Head and BPD in Formation of Village Regulations.

In the Village Law in Article 18-19 it is determined that several Authorities owned by the Village include: a. authority based on the right of origin; b. village-scale local authority; c. authority assigned by the Government, Provincial Government, or Regency/Municipal Government; and D. other authorities assigned by the Government, Provincial Government, or Regency/Municipal Government in accordance with the provisions of laws and regulations. These powers are carried out by village officials and BPD. Furthermore, in Article 26 paragraph 3 letter b it is determined that one of the authority of the village head is to submit a draft and stipulate a Village Regulation. Article 55 states that the BPD has the following functions: a. discuss and agree on the Draft Village Regulation with the Village Head; b. accommodate and channel the aspirations of the Village community; and c. supervise the performance of the Village Head. Then in Article 56 (1) Members of the Village Consultative Body are representatives of the Village residents based on regional representation whose filling is done democratically.

              Based on the formulation of these articles, those who have a role/have authority in the formation of the Village Regulation as regulated in the Village Law and also the implementing regulations in Article 83 of PP No.43 of 2014 concerning implementing regulations of Law No.6 of 2014 concerning villages are the Village Head and BPD. Draft Village Regulations can be proposed by members of the BPD to the leadership of the BPD to be determined as a draft Village Regulation proposed by the BPD.

              Village regulations are one type of regulation in the village other than the joint regulation of the village head, and the village head regulation (Article 70 of the village law), and in its formation it is prohibited to conflict with the public interest and/or the provisions of higher laws and regulations. The types of village regulations are also divided into two, namely village regulations and customary village regulations. For Customary Village Regulations, the material is adjusted to customary law and customary norms that apply in Traditional Villages as long as they do not conflict with the provisions of the Legislation. From the techniques and procedures for drafting regulations in the village, this Ministerial Regulation applies mutatis mutandis to the techniques and procedures for drafting regulations in traditional villages.

              Apart from the aspect of the apparatus/agency authorized to form, in the formation of legal products in the village there are other things that need to be considered, namely: Form, Preparation Technique; Content and also the process/procedure of its formation. The form can be in the form of a village regulation, joint regulations with the village head, and village head regulations as mentioned above. Related to technical preparation. according to the provisions of Article 32 paragraph (1) Regulation of the Minister of Home Affairs No. 111 of 2014 confirms that: “The provisions regarding the technique of drafting Village Regulations and Village Head Decrees are in accordance with the provisions of the Law concerning the Establishment of Legislative Regulations. The law in question is Law No. 12 of 2011 concerning the Establishment of Legislation. The content of the Perdes material is in accordance with the authority of the village and from the process of forming the Permendagri it has been confirmed that the process starts from planning, drafting, discussing, determining and enacting.

              In general, the mechanism for forming a Village Regulation is regulated in the Village Law, PP No. 43 of 2014 and Regulation of the Minister of Home Affairs 111 of 2014 concerning the Mechanism of forming Village Regulations, where it is stated that:

1. The Village Regulation is initiated by the Village Government and the BPD may propose a draft Village regulation to the village government.

2. The draft Perdes must be consulted with the Village community to get input.

3. The draft Village regulation is determined by the Village head after being discussed and agreed with the Village Consultative Body.

4. The draft Village regulation that has been mutually agreed upon is submitted by the leadership of the Village Consultative Body to the Village head to be stipulated as a Village regulation no later than 7 (seven) Days from the date of agreement by affixing a signature no later than 15 (fifteen) Days from the receipt of the draft. Village regulations from the leadership of the Village Consultative Body.

5. The Village Regulation is declared to be effective and has binding legal force since it was promulgated in the Village Gazette and Village News by the Village secretary.

6. The promulgated Village Regulation as referred to in paragraph (3) shall be submitted to the regent/mayor as material for guidance and supervision no later than 7 (seven) Days after its promulgation.

7. Village regulations must be disseminated by the Village Government.

Specifically for the Draft  Village Government s concerning the Village Revenue and Expenditure Budget (APBDes), there are several additional procedures, namely the Draft Village Regulation on the APBDes related to levies, spatial planning, and Village Government organizations, which must obtain an evaluation from the Regent/Mayor before being stipulated as a Village Regulation. The results of the evaluation are submitted by the Regent/Mayor no later than 20 (twenty) working days from the receipt of the draft regulation by the Regent/Mayor. The Village Head is given a maximum period of 20 (twenty) days from the receipt of the evaluation results to make corrections. In the event that the Regent/Mayor does not provide evaluation results within the time limit, the Village Regulation shall apply automatically.

              From the description above, the mechanism based on the principle of checks and balances can be seen from the institutions that are given the authority to form, namely the Regional Head and BPD according to their respective authorities. In particular, several BPD village regulations are unable to compile and propose draft Village Regulations, including Village Regulations on the Village Medium-Term Development Plan (RPJMDes), draft Village Regulations on Village Government Work Plans (RKPDes), draft Village Regulations on Village APB (APBDes), and draft Village Regulation concerning the Accountability Report of the Realization of APBDes Implementation.

 Thus, the drafting process involves 3 elements apart from the Village Head, BPD as well as the community. The role of the community is in the framework of providing input to the Draft Village Regulation that is formed so that Village Regulations do not appear that are not in accordance with the needs of the local community. Likewise, in the discussion process involving these two elements and specifically for financial-related issues, involving the Regent/Mayor in the context of evaluation and supervision. Furthermore, in the process of determining, enacting, and also disseminating it to the community. Furthermore, in terms of the procedures that have been regulated, it shows that the village regulations are processed in a democratic and participatory manner. Village communities have the right to provide input to the Village Head and BPD in the process of drafting Village Regulations. Village regulations that regulate village authority based on origin rights and local-scale authorities in their impl Observing the very broad scope of material that can be contained in the Perdes starting from landscape mapping, social, cultural, economic, environmental, technology, to human resources, it requires accuracy, expertise in drafting Raperdes and also requires a long process in the preparation of Village Regulations so that often require assistance from experts who are competent in the field of drafting regulatory documents and village planning.

The following is a flow chart of the process of forming a village regulation.[1]

Conclusion.

From the explanation above, it can be concluded that:

1. Checks and Balances are needed in the administration of village government, especially in the formation of Village Regulations considering that Village Regulations as one of the legal products in the village are intended to provide benefits, certainty, and justice for village communities in accordance with the objectives of the law itself. Besides that, it is also to avoid abuse of power by establishing participatory Village Regulations.

2. The checks and balances mechanism in forming Village Regulations in Indonesia has been reflected in existing laws and regulations, starting from the involvement of village institutions and village communities starting from the process of drafting Village Regulations to promulgation, also through evaluations from the mayor/regent of Village Regulations. and also reporting on Village Regulations that have been promulgated for their guidance and supervision.