EN 
IN
IMPLEMENTATION OF FUNDAMENTAL LEGAL PRINCIPLES ESTABLISHMENT OF REGIONAL REGULATIONS
03/07/2023 Views : 126
MADE NURMAWATI
Abstract
Article 1 paragraph (3) of the
1945 Constitution of the Republic of Indonesia (1945 Constitution) confirms
that the State of Indonesia is a constitutional state. As a rule of law, all
government and community actions are based on applicable law. One type of
source of law is statutory regulations, especially regional regulations, which
in their formation must pay attention to the principles of formation and
content principles, this is important and must be implemented in forming
regional regulations. . Because these principles form the foundation for the
formulation of norms and serve as guidelines for the formation of laws and
regulations. The importance of the principle of providing legal certainty and
regional regulations will not cause unrest, division, discrimination but is
protective for the sake of realizing the welfare of residents in the area.
Keyword: Legal principles, regional regulations
1. Background of the problem.
Article 1 paragraph (3) of the
1945 Constitution of the Republic of Indonesia (1945 Constitution) confirms
that the State of Indonesia is a constitutional state. The rule of law
according to Aristotle. is a country that stands above the law that guarantees
justice to its citizens. As a constitutional state, the consequence is that all
state life is always based on law. Thus all government and community actions
must be based on applicable legal provisions.
Lexical law is a regulation or
custom that is officially considered binding and confirmed by the authorities
or government. Law also includes rules in the form of laws and related
regulations, rules in society, and decisions made by law enforcers. There are 2
kinds of law according to the source, namely material law and formal law. The
source of material law is the source from which legal material is taken. This
law is a factor that helps determine the content or material of the law.
Meanwhile, the source of formal law is the source of a regulation obtaining
legal force.
What constitutes a formal source
of law has been regulated in Article 7 paragraph (1) of Law No. 12 of 2011
concerning Formation of Legislation as amended and finally by Law Number 13 of
2022 concerning the Second Amendment to Law Number 12 of 2011 concerning
Formation of Legislation. In Article 7 paragraph (1) it is stated that one type
of statutory regulation is a Regional Regulation, both Provincial Regulation
(letter f) and Regency/City Regional Regulation (letter g). Regional
Regulations are regional legal products made by the DPRD with the approval With
the Head of Region. The existence of regional regulations is a consequence of
Article 18 of the 1945 Constitution which divides the Unitary State of the
Republic of Indonesia into provinces, regencies and cities, each of which has a
regional administration, which is regulated by law. These regions are given the
authority to organize and manage their own governmental affairs according to
the principles of autonomy and co-administration. In the context of carrying
out these tasks, the regional government has the right to stipulate regional
regulations and other regulations to carry out autonomy and assistance tasks
(Article 18 paragraph 6 of the 1945 Constitution).
Regional regulations are a
further elaboration of higher laws and regulations, as well as legal
instruments (and as wettelijke regelingen) made by regional governments in
exercising their authority to realize their autonomy. Therefore, the nature of
regional regulations as a means of elaborating or concretizing law on national
laws and regulations, only contains as a regulatory instrument for each
delegation of tasks (plichten) based on co-administration (medebewind) for the
region that is requested for assistance. This means that districts/cities no
longer have a deconcentration relationship with higher government units, so
district/city regulations as an elaboration of higher laws and regulations are
only possible in "assistance tasks.
Regional authority in the formation of regional regulations is included
in Law no. 23 of 2014 concerning Regional Government as amended several times,
most recently by Law Number 9 of 2015 concerning the Second Amendment to Law
Number 23 of 2014 concerning Regional Government. In article 236 paragraphs (1)
and (2) of the Law it states:
(1).
To carry out Regional Autonomy and Co-Administrative Tasks, the Regions form a
Regional Regulation.
(2).
The regional regulations as referred to in paragraph (1) are formed by the DPRD
with the joint approval of the regional head
(3)
The regional regulations as referred to in paragraph (1) contain the contents
of:
a. implementation of Regional Autonomy
and Co-Administration; And
b. further elaboration of the provisions
of higher laws and regulations.
(4)
In addition to the content material as referred to in paragraph (3) the
Regional Regulation can contain local content material in accordance with the
provisions of the legislation.
Furthermore, in Article 250 paragraph (1) of Law No. 23 of 2014 it
states that the regional regulation may not contradict higher laws and
regulations, public interest and decency.
On this basis, it is clear that regional governments have the authority
to form regional regulations. In forming regional regulations, as is the case
with the formation of other laws and regulations, there are conditions that
must be met, both formally and materially, which are regulated in Law No. 12 of
2011 as amended and finally by Law Number 13 of 2022 concerning the Second
Amendment to the Law. Number 12 of 2o11 concerning Formation of Laws and
Regulations, as well as Regulation of the Minister of Home Affairs of the
Republic of Indonesia Number 80 of 2015 concerning the Formation of Regional
Legal Products as amended by Regulation of the Minister of Home Affairs of the
Republic of Indonesia Number 120 of 2018 concerning Amendments to Regulation of
the Minister of Home Affairs Number 80 2015 concerning the Formation of
Regional Legal Products.
Law No. 12 of 2011 has provided a limitation that in forming a regional
regulation it must be based on the principle of formation and the principle of
material content as specified in Article 5 and Article 6. So that if it is not
implemented in forming a regional regulation it can result in the regional
regulation not being effective, and in the end canceled.
Andi Bau Inggit's research in 2016 showed that 3,143 regional
regulations were canceled by the Minister of Home Affairs, who carried out the
president's direct orders. This is because regional regulations distort public
interests and are hierarchically contradictory. These data indicate that the
process of forming regional regulations does not refer to the principles in the
formation of regional regulations. This shows that in constitutional practice
there are many problematic regional regulations. One example is the Sharia
regional regulations that are contrary to the principles of human rights. In
addition, regional regulations with an Islamic sharia perspective are also
considered to have violated the rights of civil liberties and women's rights,
for example where the way to dress is so restricted, and the time and space for
women's movement in public spaces is very shackled and restricted.
B
ased on this, the problem to be discussed in this paper is how to
implement the principles contained in the content of regional regulations?
2. Discussion.
2.1. Formation of Regional Regulations and the Principles of Their
Formation.
The term regional regulation in the black's law dictionary is called a
local law, local act or local statute which is explained as "a statute
that relates to or operates in a particular locality rather than the entire
state" (a regulation that relates to or applies throughout the territory
of the State). certain section). There is also the term "rocal rule"
namely as "a rule based on the physical conditions of a state and the
character, costumes, and beliefs of its people". Regional regulations in
Article 1 number 25 of Law No. 23 of 2014 state that Regional Regulations,
hereinafter referred to as Regional Regulations or what are referred to by
other names, are Provincial Regulations and Regency/City Regulations.
In the formation of regional regulations, there are various aspects
that need attention, including: regarding the process (verfahren) of
establishing regional regulations to their supervision (gesetzgebungs-varfahren).
Apart from that, it is about the material content (het onderwerp) of
regional regulations (gesetzbungstmethode) and an analysis of the
external form (kenvorm) of regional regulations (gesetzbungstechnik).
Therefore, in order to obtain quality regional law products, procedural aspects
cannot be neglected. Ignoring this aspect can lead to legal defects in regional
regulations. Equally important is the substantial aspect, concerning the
subject matter regulated in the Regional Regulation (background, purpose and
object of making the Regional Regulation). Ignoring this aspect means that
there is no harmonization of will through aspirations with the maker. Technical
aspects because it involves issues of form and technical formulation of
Regional Regulations as stipulated in the Act. One of these aspects is related
to the principles in its formation.
The principles in the formation of regional regulations Article 237 (1)
of Law No. 23 of 2014 states that: The principles for the formation and content
of regional regulations are guided by the provisions of laws and regulations
and legal principles that grow and develop in society as long as they do not
conflict with the principles of the Unitary State of the Republic Indonesia.
These principles are regulated in more detail in Articles 5 and 6 of Law No. 12
of 2011. These principles can be seen in the following table:
Principles of
Formation of Legislation
|
No. |
Establishment
Principles |
Explanation |
|
1 |
clarity of
purpose; |
What is meant by "principle of clarity of objectives" is
that each Formation of Legislation must have clear objectives to be achieved. |
|
2 |
Institutional |
What is meant by "institutional principle or proper forming
official" is that each type of Legislation must be made by a state
agency or an authorized Legislative Forming official. These laws and
regulations can be canceled or null and void if they are made by a state
institution or an unauthorized official |
|
3 |
conformity
between types, hierarchies, and content material |
What is meant by
"principle of conformity between types, hierarchies, and content
materials" is that in the Formation of Legislation, proper attention
must be paid to the appropriate content material according to the type and
hierarchy of Legislation. |
|
4 |
enforceable |
What is meant by "principle of enforceability" is that
each Formation of Legislation must take into account the effectiveness of
said Legislation in society, both philosophically, sociologically, and
juridically. |
|
5 |
efficiency
and effectiveness |
What is meant by "principle of efficiency and
effectiveness" is that each Legislation is made because it is really
needed and useful in regulating the life of society, nation and state. |
|
6 |
clarity of
formulation |
What is meant by "principle of clarity of formulation" is
that each Legislation must meet the technical requirements for the
preparation of Legislation, systematics, choice of words or terms, as well as
legal language that is clear and easy to understand so as not to give rise to
various kinds of interpretation in its implementation. |
|
7 |
Openness |
What is meant by "principle of openness" is that in the Formation
of Laws and Regulations starting from planning, drafting, discussing,
ratifying or stipulating, and promulgation is transparent and open. Thus, all
layers of society have the widest possible opportunity to provide input in
the Formation of Legislation. |
As for the content material, there are several
principles, namely:
Table 2
Principles of Material Content of
Legislation
|
No. |
Content
Principles |
explanation |
|
1 |
Protection |
What is meant by "principle of protection"
is that each Content Material of Laws and Regulations must function to
provide protection to create public peace.. |
|
2 |
Humanity |
What is meant by "principle of
humanity" is that each Content Material of Laws and Regulations must
reflect the protection and respect for human rights and the dignity and worth
of every citizen and resident of Indonesia in a proportionate manner. |
|
3 |
Nationality |
What is meant by "national
principle" is that each Content Material of Laws and Regulations must
reflect the diverse nature and character of the Indonesian nation while
maintaining the principles of the Unitary State of the Republic of Indonesia. |
|
4 |
kinship |
What is meant by "principle of
kinship" is that each Content Material of Laws and Regulations must reflect
deliberation to reach consensus in every decision-making. |
|
5 |
archipelago |
What is meant by "archipelagic
principle" is that each content material of laws and regulations always
takes into account the interests of the entire territory of Indonesia and the
content material of laws and regulations made in the regions is part of the
national legal system based on Pancasila and the 1990 Constitution of the
Republic of Indonesia. 1945. |
|
6 |
Bhineka tunggal ika |
What is meant by "principle of unity in
diversity" is that the Content Material of Laws and Regulations must pay
attention to the diversity of population, religion, ethnicity and class,
special regional conditions and culture in the life of society, nation and
state. |
|
7 |
fairness |
What is meant by "principle of
justice" is that each Content Material of Laws and Regulations must
reflect fairness proportionally to every citizen. |
|
8 |
equality before the law and government |
What is meant by "principle of equal
standing in law and government" is that each Content Material of Laws
and Regulations may not contain things that are discriminatory based on
background, among others, religion, ethnicity, race, class, gender, or social
status. |
|
9 |
order and legal certainty |
What is meant by "principle of order and
legal certainty" is that each content material of laws and regulations
must be able to create order in society through guaranteed legal certainty. |
|
10 |
Balance and harmony |
What is meant by "principle of balance,
harmony, and harmony" is that each Content Material of Laws and
Regulations must reflect balance, harmony, and harmony, between individual
interests, society and the interests of the nation and state. |
Source: Law No.12 of
2011
Apart
from reflecting the principles mentioned above, certain laws and regulations
may also contain other principles in accordance with the legal field of the
relevant laws and regulations, for example the principle of legality, the
principle of no punishment without fault, the principle of coaching convicts,
and the principle of the presumption of innocence in criminal law or the
principle of agreement, freedom of contract, and good faith, in Civil Law.
2.2. The
Urgency of the Principles in Forming Regional Regulations.
The
principles mentioned above are important matters and must be implemented in the
formation of local regulations. Because these principles form the foundation
for the formulation of norms and serve as guidelines for the formation of laws
and regulations, including regional regulations, which are good, hierarchically
appropriate and in the public interest so that they can be implemented and
apply effectively. Principles in English are referred to as principles, whereas
in the Big Indonesian General Dictionary principles can mean basic law or
fundamentals, namely something on which one thinks or has an opinion.
Therefore,
according to Lon L. Fuller, the purpose of forming a regional regulation will
be fulfilled if it accommodates the principles of legality, as a requirement
for a morality-based legal system.
I.C.
van der Vlies mentions that there are formal principles and material principles
as the principles of proper laws and regulations (beginselen van behoolijke
rejel geving). The formal principles consist of: the principle of clear
objectives, the principle of the right organ/institution, the principle of the
need for regulation, the principle of being able to be implemented, the
principle of consensus. Meanwhile, what is meant by material principles are:
correct terminology and systematic principles, identifiable principles, equal
treatment in law, legal certainty, and law enforcement in accordance with
individual circumstances.
Therefore,
in the implementation of legal formation, including practical regional
regulations, it must be oriented towards principles because legal principles
become the foundations or directions in the formation of positive law. The
basic legal principle or is a legal principle that is still abstract in nature.
These legal principles are then concretized in the implementation of the
formation of regional regulations. Therefore it can be said that the principle
in law is the basis behind a concrete regulation and how the law can be
implemented. The implementation of the principles of regional regulations, both
from the formation principle and the material principle of regional
regulations, aims to ensure that regional regulations provide legal certainty
and that the contents of regional regulations will not cause unrest, division,
discrimination, but are protective for the welfare of citizens in the region.
3.
Conclusion
1. From
the description above, it can be concluded that legal principles form the
cornerstone for the formulation of norms and as guidelines for the formation of
good laws and regulations, including regional regulations. The principles for
forming regional regulations both in terms of their formation and material are
regulated in Law No. 12 of 2011 concerning the Formation of Legislation
2.
Implementation of this principle, both the principle of formation and the
principle of material content, is very important to be implemented in the
formation of regional regulations, this is to provide legal certainty and the
contents of regional regulations will not cause unrest, division, discrimination
but protect the community in order to realize the welfare of residents in the
area.
4.Reference
.
Andi Bau
Inggit AR, 2017. “Hakikat Pengujian Peraturan Daerah Dalam Mewujudkan Tertib
Hukum Penyelenggaraan Pemerintahan Daerah,” Disertasi, Makassar: Fakultas Hukum
UNHAS, 2017.
Cholida
Hanum: Analisis Yuridis terhadap Asas-Asas Pembentukan, In Right Jurnal Agama
Dan Hak Azazi Manusia Vol. 7, No. 1, November 2017.
Bryan
A.Garner (ed.),Black’s Law dictionary, ST.Paul, Minn, West Group, 1999.hlm. 951
Jumadi, Kedudukan Dan Fungsi Peraturan Daerah (Perda)
Kabupaten/Kota Sebagai Instrumen Otonomi Daerah Dalam Sistem Perundang-Undangan Di Indonesia.
Muhammad
Tahir Azhary, Negara Hukum Suatu Studi Tentang Prinsip-Prinsipnya Dilihat Dari
Segi Hukum Islam, Implementasinya Pada Periode Negara Madinah dan Masa Kini.
Jakarta, Bulan Bintang, 1992.
Jumadi,
Kedudukan Dan Fungsi Peraturan Daerah (Perda) Kabupaten/Kota Sebagai Instrumen
Otonomi Daerah Dalam Sistem Perundang-Undangan Di Indonesia.
https://www.hukumonline.com/berita/a/pengertian-hukum-menurut-para-ahli-lt62e73b860a678/
https://www.kompas.com/tren/read/2022/06/13/100500065/macam-macam-atau-jenis-penggolongan-hukum?page=all