EVALUATION AND CLARIFICATION OF REGIONAL REGULATIONS IN AN EFFORT TO PREVENT AND OVERCOME PROBLEM REGIONAL REGULATIONS

Abstract 

Regional Regulation is one of the regional legal products formed by the regional government and DPRD in the context of administering regional government. In practice there are many regional regulations that are problematic due to various factors. The purpose of writing is to find out the factors that cause problematic Regional Regulation regulations and what is the relevance of evaluation and clarification in the formation of Regional Regulation regulations. The results of the study indicate that the factors causing the emergence of problematic Regional Regulation regulations include the lack of public participation in their preparation, the lack of understanding from the local regulation-forming institutions both regarding legal principles and techniques for drafting  Regional Regulation regulations, in addition to the substance of the existence of Regional Regulation regulations that contradict the spirit of Indonesian diversity become a threat to national and state harmony and religious tolerance. Evaluation and clarification is needed to prevent problematic Regional Regulation regulations from occurring, both during drafting when they are still in the form of Ranperda and through clarification after the Regional Regulation regulations are enacted.

Keywords: Regional Regulation, Evaluation, Clarification

1. Introduction

The existence of a statutory regulation in a country cannot be separated from the consequences as a state of Law. The rule of law according to F.R Bothlingk is a country, where the freedom of the will of the power holder is limited by a legal will.[1] Meanwhile, according to A. Hamid S. Attamini, quoting Burkens, said that the state that places the law as the basis of state power and the exercise of that power in all its forms is carried out under the rule of law.[2] Indonesia is a State of Law, this is confirmed in Article 1 paragraph (3) of the 1945 Constitution. The purpose of a state of law is to ensure justice for all citizens/citizens. For Indonesia, the rule of law is based on the values ​​of Pancasila which is the nation's view of life and the source of all sources of law. Thus, all aspects of life in the territory of the Unitary State of the Republic of Indonesia must be based on the law and all products of legislation and their derivatives that apply in the territory of the Republic of Indonesia.

There are various legal products within the territory of the Republic of Indonesia, which according to Law No. 12 of 2011 concerning the Establishment of Legislation (UUP3) as amended by Law of the Republic of Indonesia Number 15 of 2019 concerning Amendments to Laws Number 12 of 2011 concerning the Establishment of Legislation, one of the existing legal products is a Regional Regulation (Perda). To the good regions of the Province. Districts/Cities are given the right to stipulate local regulations as juridical instruments and even political instruments in the administration of local government. The authority to form Regional Regulations is regulated in Article 18 paragraph (6) of the 1945 Constitution which states that: Regional governments have the right to stipulate regional regulations and other regulations to carry out autonomy and assistance tasks. the designer pays attention to the principles of the formation of a regional regulation as a frame of reference such as clarity of purpose, appropriate institutional or forming organs, compatibility between types and content materials and so on

According to the Minister of Home Affairs, Tjahjo Kumolo, the number of problematic regional regulations has resulted in the Government to revoke 3,266 Regional Regulations (Perda) that are considered problematic, particularly those that hinder investment and development and those that are contrary to the law and the values ​​of Pancasila.[3] Meanwhile, according to the Monitoring Committee for the Implementation of Regional Autonomy (KPPOD), there are at least 347 regional regulations that are problematic and have the potential to hinder investment, of this number it was found that 235 problematic regulations related to regional taxes and levies, 63 related to licensing, 7 related to labor issues. , and 42 local regulations with other matters. The problematic regional regulations are the result of a KPPOD study of 1,109 regional regulations from 153 districts/cities in 32 provinces.[4] The number of problematic regional regulations will have an impact, among others, can lead to multiple interpretations, the ineffectiveness of these regulations and can even lead to national disintegration. In the field of investment, it can have implications for decreasing the interest of investors who want to invest their capital in the regions either directly or indirectly.[5]

The number of problematic local regulations will have an impact, among others, can lead to multiple occurrences. Therefore, it is necessary to take steps to prevent this from happening, including through evaluation and clarification of the formed local regulations. Based on this, the issues discussed in this paper are: what are the factors that cause problematic local regulations and what is the urgency and relevance of evaluation and clarification of local regulations?

2. Discussion

a. Factors Causing Troubled Local Regulations.

Before discussing what are the factors causing the existence of problematic local regulations, the following will discuss what problematic local regulations and local regulations are. Perda is a regional legal product that is formed in the context of carrying out government affairs which are the authority of the region. The Regional Head and the Regional People's Representative Council (DPRD) as the organizers of the Regional Government make a Regional Regulation as a legal basis for the Region in carrying out Regional Autonomy in accordance with the conditions and aspirations of the community as well as the peculiarities of the Region. The regulations made are only valid within the jurisdictional boundaries of the regions concerned.

In UUUP3 Article 7 paragraph (1) it is stated that one form of existing statutory regulations is a regional regulation, which consists of a provincial regulation and a district/city regulation. What is meant by Provincial Regulation or other names and Regency/City Regional Regulations or other names, hereinafter referred to as regional regulations are laws and regulations established by DPRD with the joint approval of the regional head. In UUP3 and Permendagri No. 80 of 2015 concerning the Establishment of Regional Legal Products in Article 4 paragraph (2) it is stated that the Regional Regulation contains the following materials: a. implementation of regional autonomy and assistance tasks; and b. further elaboration of higher statutory provisions. Furthermore, in paragraph (3) it is determined that in addition to the content material as referred to in paragraph (2), the Regional Regulation may contain local content in accordance with the provisions of the legislation. To produce good local regulations (god legislation), various requirements, both formal and material, have been determined in the legislation. The enactment of Law No. 12 of 2011 has made a very important basis for making laws and regulations including Perda, because it will show:[6] 1. There must be authority from the legislators; 2. the necessity of conformity of the form or type of legislation with the material regulated, especially if ordered by a higher or equivalent level regulation; 3. must follow certain procedures; 4. must not conflict with the legislation at a higher level. In addition, it must also pay attention to the principles and foundations in the formation of legislation. The non-fulfillment of various provisions in the formation of regional regulations both formally and materially can be the cause of "problematic regional regulations".

In practice, there are many problematic local regulations. Troubled local regulations can be concluded from five main issues ranging from the formation process to regulatory delivery.[7]

1.     In the drafting process, there is very little public participation in the local regulation, which results in the ineffectiveness of the local regulation implementation.

2.    problems in the juridical aspects, substance, principles and added value of the content or content of these local regulations. This is very evident from the regulations that contradict or contradict the regulations of the central government or the regulations above.

3.   The problematic regional regulations have had a negative impact on the regional economy and even the implications of problematic regional regulations are actually used as political instruments for personal or group gain, causing inconvenience in the business world.

4.   The handling of problematic regional regulations by the Ministry of Home Affairs has not been optimal because there are no regulations set by the central government to review draft regional regulations. Especially since the Constitutional Court's decision that the Ministry of Home Affairs can no longer cancel regional regulations because the authority to cancel can only be carried out by the Supreme Court (MA).

5.   The problem of regulatory delivery, namely the lack of harmony in the environment for policy makers, often makes the formulation of regional regulations not comprehensive and does not target the needs of the local community. This disharmony usually occurs because of a conflict of interest between the legislature and the executive.

Thus, many local regulations are problematic in the practice of state administration in Indonesia due to various reasons, namely: juridical aspects, substance, and principles. These include the lack of understanding from the local regulation-forming institutions, both regarding legal principles and techniques for drafting local regulations, the lack of public participation in caring, as well as in terms of the substance of local regulations that contradict the spirit of Indonesian diversity which poses a threat to national and state harmony and religious tolerance. Another thing is that it is known that the formation of regional regulations is often a political instrument by regional heads, community organizations, and politicians.[8] This resulted in the birth of discriminatory local regulations, and also regulations that hampered the investment climate so that regional development became stagnant.

The number of problematic regional legal products will have a bad impact on the capacity and quality of regional government administration as a whole, therefore to minimize the occurrence of problematic regional regulations carried out through various efforts, one of which is through supervision. Supervision according to Muchsan means: determining what has been achieved, evaluating and implementing corrective actions, if necessary, ensuring the results are in accordance with the plan.[9] Meanwhile, according to Paulus Effendie Latulung, supervision is an effort to avoid the occurrence of mistakes, both intentional and unintentional, as a preventive effort or also to correct it if an error has occurred, as a repressive effort.[10] Therefore, supervision of regional regulations is carried out when a regional regulation is in the process of formation, namely in the form of a draft regional regulation or after a regional regulation that has been enacted and promulgated.

b. Evaluation and Clarification of draft regional regulation and regional regulation.

In Permendagri No. 80 of 2015 concerning the Establishment of Regional Legal Products as Amended by Permendagri Number 120 of 2018 concerning Amendments to the Regulation of the Minister of Home Affairs Number 80 of 2015 concerning the Establishment of Regional Legal Products, supervision of Draft Regional Regulations (Ranperda)  a (nd Regional Regulations (Perda) is carried out through evaluation and clarification. According to Article 1.25 of Permendagri No.80 of 2015 in conjunction with Permendagri N0.120 of 2018 in Article.1.22 it is stated that: Evaluation is an assessment and assessment of the draft regional regulation regulated in accordance with the law in the field of regional government and other laws and regulations to determine the suitability of with higher laws and regulations, public interest, and/or decency. While the new clarification term is regulated in Permendagri No.120 of 2018 in Article 1.32, which states that: Clarification is an assessment and assessment of local regulations to determine compliance with higher laws and regulations, public interest, and/or decency. Based on this definition, assessment and assessment can be carried

out on the Ranperda called "Evaluasi", as well as on the Regional Regulation called "Clarification". Both evaluation and clarification are carried out regarding:

1.whether it is in accordance with the higher laws and regulations;

2. whether or not in accordance with the public interest; and

3. decency.

This is confirmed in Article 250 paragraph (1) of Law 23 of 2014 concerning Regional Government as follows: Perda and Perkada as referred to in Article 249 paragraph (1) and paragraph (3) are prohibited from contradicting the provisions of higher laws and regulations, the interests of public, and/or decency.

The institution authorized to conduct evaluations according to Permendagri 80 of 2015 Article 91 (1) is the Minister of Home Affairs to evaluate the draft provincial regulations and the Governor to evaluate the draft district/city regulations in accordance with: a. laws in the field of regional government; and b. other laws and regulations. Furthermore, it is also stated that the evaluation of the draft regional regulation in accordance with the law in the field of regional government consists of:

a. RPJPD;

b. RPJMD,

c. APBD, APBD amendments, and accountability for APBD implementation;

d. local tax;

e. regional retribution; and

f. regional layout.

In addition, an evaluation of the draft regional regulation in accordance with other laws and regulations can also be carried out, including:

a. industrial development plan; and

b. formation, deletion, merging, and/or change of Village status to kelurahan or kelurahan to Village.

Especially for draft provincial Regulation which regulates APBD, APBD changes, accountability for APBD implementation, regional taxes, regional retribution if it has received joint approval but has not been determined by the Governor, it must be submitted within 3 days to the Minister of Home Affairs through the Secretary General and 3 days by the Secretary General submitted to the Director General Regional Financial Development for evaluation (Article 92 paragraphs (1) and (2)). Meanwhile, the Provincial Regulation that regulates the RPJPD, RPJMD, regional spatial planning and provincial industrial development plans by the Secretary General will be submitted to the Director General of Regional Development Development and must coordinate with the minister. which organizes government affairs in the industrial sector (specifically the regional regulation on industrial development plans to be evaluated (Article 92 paragraph (4) and Article 93). The results of the evaluation will be determined by "Decree of the Minister of Home Affairs".

For Regency/City Regional Regulations, the evaluation is carried out by the Governor and submitted by the Regent/Mayor 3 (three) days prior to enactment: a. RPJPD; b. RPJMD; c. APBD, APBD amendments, accountability for APBD implementation; d. local tax; e. regional retribution; f. regional spatial planning; g. regency/city industrial development plan; and h. establishment, deletion, merging, and/or change of Village status to kelurahan or kelurahan to Village.

In addition, especially for certain regional regulations, the Governor as the representative of the Central Government in evaluating the draft Regency/City Regional Regulation concerning:

a.  regional taxes and regional levies in consultation with the Minister of Home Affairs through the Director General of Regional Financial Development and then the Minister of Home Affairs in coordination with the minister who carries out government affairs in the financial sector; and

b.  regional spatial planning consults with the Minister of Home Affairs through the Director General of Regional Development and then the Minister of Home Affairs coordinates with the minister who organizes government affairs in the field of spatial planning.

In the event that the Minister of Home Affairs declares that the results of the evaluation of the draft Regional Regulation are in accordance with the provisions of higher legislation and/or the public interest, a number of registration will be given..

If the of the draft Regional Regulation has obtained a number of registration, then the draft regional regulation that is being evaluated can be determined and promulgated by the regional head by affixing a signature counted since the ministerial decision process for provincial evaluation and the governor's decision for district/city evaluation is implemented.

The valuation procedure is also regulated in other laws and regulations according to substance. For example, related to regional taxes and levies, it is regulated in Permendagri 105 of 2016 concerning Evaluation of Draft Regional Regulations on Regional Taxes and Draft Regional Regulations on Regional Levies.

There is no facilitation of the Regional Regulations that have been evaluated (Article 88 of Regulation 80 of 2015). Facilitation is a coaching action in the form of providing technical guidelines and instructions, directives, technical guidance, supervision, assistance and cooperation as well as monitoring and evaluation carried out by the Minister of Home Affairs to provinces and the Minister of Home Affairs and/or governors to regencies/municipalities on the draft material. Regional law products are in the form of regulations before they are enacted in order to avoid cancellations.

If the evaluation is carried out on certain draft regional regulation (Perda) that have not been determined. As for the regulations that have been enacted, it is known as Clarification. In the Regulation of the Minister of Home Affairs of the Republic of Indonesia Number 120 of 2018 concerning Amendments to the Regulation of the Minister of Home Affairs Number 80 of 2015 concerning the Establishment of Regional Legal Products. In Article 1 number 32 it is stated that Clarification is an assessment and assessment of regional regulations to determine compliance with laws and regulations higher status, public interest, and/or decency.

In Article 127A of the Ministerial Regulation, it is stated that regarding procedures for clarification, it is determined that no later than 7 (seven) days after promulgation, the Governor must submit a Provincial regulation  to the Minister through the Director General of Regional Autonomy and for Regency/City regional regulation, the regent/mayor submits it to the governor. Those authorized to propose are: a. proposals from any person, group of people, local government, legal entity and/or other agencies; and b. initiative from the Directorate General of Regional Autonomy through the Directorate of Regional Legal Products and/or the Provincial Legal Bureau or other names. Clarification is carried out by the Directorate General of Regional Autonomy through the Directorate of Regional Legal Products for Provincial Regulations and provincial law bureaus or other names for Regency/City

Regional Regulations. Article 127B, which will then be published according to the appropriate/incompatible letter.

If the results of the Clarification indicate that they are not appropriate, a recommendation from the local government will be given to amend the Perda or revoke the Perda no later than the formation of the Propemperda in the following year. Amendments to Regional Regulations or revocation of Regional Regulations are carried out in accordance with the provisions of laws and regulations. (4) In the event that the provincial and district/city governments do not implement the results of the Clarification as referred to in paragraph (2), it will be used as an assessment material for the performance of the regional government.

Thus, evaluation and clarification of Ranperda and Perda is intended to minimize the occurrence of problematic local regulations because they conflict with the public interest, higher laws and regulations and morality.

3. Conclusion

Based on the description above, it can be concluded that:

1.       There are various factors that cause regional regulations to be problematic, including: starting from a lack of understanding from the regional regulation-forming institutions both regarding legal principles and techniques for drafting regional regulations, in the drafting process there is very little public participation so that it has an impact on the ineffectiveness of regional regulations implementation, in addition to the substance of the existence local regulations that conflict with the spirit of Indonesian diversity which pose a threat to national and state harmony and religious tolerance that have an impact on national disintegration. Another thing is that the formation of local regulations is often a political instrument/tool ​​by certain parties such as regional heads, community organizations, and politicians .

2.       There is a difference between evaluation and clarification. Evaluation is carried out on Ranperda while Clarification is carried out on Perda. Evaluation of the draft regional regulation in accordance with the law in the field of regional government consists of: a. RPJPD; b. RPJMD, c. APBD, changes to APBD, and accountability for APBD implementation; d. local tax; e. regional retribution; and f. regional spatial planning. In addition, an evaluation of the draft regional regulation in accordance with other laws and regulations can also be carried out, including: a. industrial development plan; and b. establishment, deletion, merging, and/or change of Village status to kelurahan or kelurahan to Village. Evaluation and clarification is intended to prevent local regulations from conflicting with the public interest, higher laws and regulations and morality.

BIBLIOGRAPHY

A.Ham[1] Ridwan HR, Hukum Administrasi Negara, (Jakarta: Rajawali Pers, 2014), hal, 21. 15 A.Hamid S. Attamini, Teori Perundang-undangan Indonesia, makalah pada Pidato Upacara pengukuhan Guru Besar tetap di Fakultas Hukum UI, Jakarta, 1992,page, 8.