MECHANISM FOR ESTABLISHING VILLAGE REGULATIONS AND TRADITIONAL VILLAGE REGULATIONS

1. Introduction

In the amendments to the 1945 Constitution, the existence and regulation of the village are no longer the subject matter of the amendments made to the Constitution. This can be seen explicitly that there is no formulation of the 1945 Constitution as a result of the amendment that specifically regulates the village, but explicitly the amendment to the 1945 Constitution supports the existence of the village or by other names. This can be seen in the formulation of Article 18B which states that: (1) The state recognizes and respects special or special regional government units which are regulated by law. (2) The state recognizes and respects customary law community units and their traditional rights as long as they are still alive and in accordance with the development of society and the principles of the Unitary State of the Republic of Indonesia as regulated by law. The governing law is Law No.23 of 2014 concerning Regional Government as amended by Law no. 9 of 2015. Article 2 paragraph (2) of Law No. 23 of 2014 states that the district/city area is divided into sub-districts and sub-districts are divided into sub-districts and/or villages. Meanwhile, Article 371 (1) states that: In a regency/city area a Village can be formed. Paragraph (2) determines: The village as referred to in paragraph (1) has the authority in accordance with the provisions of the legislation.

The statutory regulations governing Villages are Law No. 6 of 2014 concerning Villages (Village Law). In Article 1 number 1 of Law No. 6 of 2014 it is emphasized that the village consists of villages and customary villages, the 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, rights of origin , and/or traditional rights that are recognized and respected in the government system of the Unitary State of the Republic of Indonesia. Thus there are 2 types of villages in Indonesia, namely Traditional Villages and Villages, and each village has its own authority to regulate the lives of its citizens. Article 19 of the Village Law states that the Village Authority includes:

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.

o carry out this authority and ensure legal certainty in the village, the village is given the authority to compile village legal products. According to Article 69 paragraph (1) of the Village Law, it determines the types of regulations that exist in the village, which consist of "Village Regulations, joint Village Head regulations, and Village Head regulations". Thus, one type of regulation that exists in the village is the Village Regulation. Definition of Village Regulations according to Traditional Villages, they are called "customary village regulations" (or other names) and are regulations formed by the local traditional village. The question then is whether the formation of Village Regulations is the same as the mechanism for forming customary village regulations?

2.Discussion

a. Village regulations and customary village regulations

The provisions of Article 7 paragraph (1) and Article 8 paragraph (1) of Law Number 12 of 2011 do not regulate Village Regulations as a type of legislation and are not included in the hierarchy of laws and regulations in Indonesia, however, this does not mean that Village Regulations are not recognized. and ,n cannot be tested. Article 1 point 7 of the Village Law states that Village Regulations are statutory regulations established by the Village Head after being discussed and agreed upon with the Village Consultative Body. The same thing is also regulated in the Minister of Home Affairs Regulation No. 111 of 2014 (Permendagri N0.111 of 2014) in Article 1 point 5. Meanwhile, what is meant by the Traditional Village Regulation is not explicitly stated in Law No. 12 of 2011 or Permendagri No. 111 of 2014.

Village Regulations are a legal and policy framework in the administration of Village Government and Village Development. The stipulation of Village Regulations is an elaboration of the various authorities possessed by the Village referring to the provisions of higher laws and regulations. In Article 13 of the Minister of Home Affairs it is stated that Village Regulations are prohibited from conflicting with the public interest, and/or higher statutory provisions. The meaning of the public interest according to the Elucidation of number 7 of the Village Law, namely:

a. disruption of harmony between members of the community;

b. disruption of access to public services;

c. disturbance of peace and public order;

d. disruption of economic activities to improve the welfare of the Village community; and

e. discrimination against ethnicity, religion and belief, race, intergroup, and gender.

While the meaning must not conflict with the provisions of higher laws and regulations, meaning that the Village Regulations must not conflict with the laws and regulations as referred to in Article 7 paragraph (1) of Law No. 12 of 2011 concerning the Formation of Legislation, which determines that the hierarchy of statutory regulations in Indonesia consists of: the 1945 Constitution; MPR Decrees; UU/Perpu; PP; Presidential Regulations; Provincial Regulations and Regency/Municipal Regulations. The dynamics of the norms are the dynamics of norms that are tiered from top to bottom or vice versa from bottom to top.

Meanwhile Article 107 of the Village Law states that the regulation and administration of customary village governance is carried out in accordance with the rights of origin. The regulation and administration of customary village governance is carried out in accordance with origin rights and customary law that applies in traditional villages that are still alive and in accordance with community development and do not conflict. with the principle of administering Traditional Village Government in the principles of the Unitary State of the Republic of Indonesia. In addition, according to Article 108 of the Village Law, the Traditional Village Administration shall carry out the function of deliberation and Deliberation of Traditional Villages in accordance with the original composition of the Traditional Village or newly formed according to the initiative of the Indigenous Village community.

To carry out its authority, the Traditional Village is given the authority to form a Traditional Village Regulation (Perdes Adat). Traditional Village Regulations are implemented based on the origin rights and traditional rights granted by Article 18B paragraph (2) of the 1945 Constitution. As a legal product, the Traditional Village Regulations are recognized and respected by the state and the procedure for their formation is the same as the formation of village regulations. In Article 110 of the Village Law, the material of the Traditional Village Regulation is adjusted to the customary law and customary norms that apply in the Traditional Village as long as it does not conflict with the provisions of the legislation. Furthermore, Article 111 paragraph (1) confirms that the provisions regarding the Customary Village Regulation only apply to traditional villages. Thus there are differences in the sphere of power of people and the enactment of the Traditional Village Regulations and Village Regulations. Article 111 of the Village Law stipulates that: provisions concerning Villages also apply to Traditional Villages as long as they are not regulated in special provisions concerning Traditional Villages.

b. The Mechanism of Formation of Village Regulations and Traditional Village Regulations in Legislation

The mechanism for establishing village regulations has been regulated in Law no. 6 of 2014, PP No. 43 of 2014, and Permendagri No. 111 of 2014 has formally established a series of processes that must be passed in the formation of village regulations, namely through the stages of planning, preparation, discussion, determination, promulgation, dissemination, evaluation, and clarification. in the Minister of Home Affairs Regulation Number 111 of 2014 concerning Technical Guidelines for Village Regulations.

1. Planning for drafting Village Regulations is determined by the Village Head and BPD in the Village Government work plan (Article 5).

2. The formulation of a village regulation can come from the village government and the village consultative body

3. To discuss the Ranperdes, the BPD invites the Village Head to discuss and agree on the draft Village Regulation. If later during the discussion at the same time there are 2 (two) proposals/ranperdes initiatives regarding the same material, namely from the Village Government or from the BPD, then the first thing to discuss is the draft Village Regulation proposed by the BPD while the Draft Village Regulation proposed by the Village Head is used as material to compare. For the Ranperdes that has not been discussed, the proposer can withdraw it, while the Draft Village Regulation that has been discussed cannot be withdrawn except by mutual agreement between the Village Government and the BPD.

4. If the discussion process has been completed and has been mutually agreed upon then 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.

5. Draft Village regulations must be determined by the Village head by affixing a signature no later than 15 (fifteen) Days from the receipt of the Village regulation draft from the leadership of the Village Consultative Body.

6. Furthermore, the Draft Village Regulation which has been signed by the Village Head is submitted to the Village Secretary for promulgation. The promulgation is carried out in the Village Gazette and since then the Ranperdes which has been changed to Perdes has binding power and applies to the community.

7. The village regulation is then disseminated so that the public is aware of it. Dissemination is carried out by the Village Government and BPD since the stipulation of the plan for the preparation of the Village Regulation draft, the discussion of the Village Regulation Draft, to the Promulgation of the Village Regulation. Dissemination is carried out to provide information and/or obtain input from the community and stakeholders.

Thus, it is clear that the new village regulations are declared valid and have binding power for village communities from the time they are enacted. Meanwhile, the definition of Traditional Village Regulations is not regulated in the Village Law or its implementing regulations. However, departing from the definition of the Regulation, namely the Traditional Village, which is a government unit managed by indigenous peoples and has the right to manage the territory and people's lives within the customary village environment. Traditional villages or also known as nagari, huta, marga and others are government units in the preparation/mechanism of forming Customary Village Regulations not regulated in the Village Law. However, departing from the provisions on villages that also apply to customary villages, the mechanism for forming Customary Village Regulations refers to the mechanism for forming Village Regulations. This is in accordance with what is stated in Article 30 of the Minister of Home Affairs Regulation Number 111 of 2014 concerning Technical Guidelines for Village Regulations which states that:

 (1)  Customary Village Regulations are adjusted to customary law and customary norms that apply in Traditional Villages as long as they do not conflict with the provisions of the Legislative Regulations.

(2)  Techniques and procedures for drafting regulations in villages as regulated in this Ministerial Regulation shall apply mutatis mutandis to techniques and procedures for drafting regulations in customary villages.

Furthermore, Article 111 (1) stipulates that the special provisions regarding Traditional Villages as referred to in Article 96 to Article 110 only apply to Traditional Villages. (2) Provisions concerning Villages also apply to Traditional Villages as long as they are not regulated in special provisions concerning Traditional Villages.

Thus, in terms of substance, anything that becomes local customs and is in accordance with customary law/norms can be included in the Traditional Village Regulation (another name) as long as it does not conflict with the applicable laws and regulations. What is stated in Article 110 of Law Number 6 of 2014 as well as the Permendagri can open up opportunities for unilateral Village regulations by the Government. The material for customary village regulations that are in accordance with customary law does not rule out the possibility of prohibitions on them, therefore it is necessary to regulate the parameters for testing the customary village regulations in order to avoid the government's arbitrariness to use its power to carry out the customary village regulations. In terms of technique and procedures for the formation of Customary Village Regulations, it is also the same as Village Regulations with a note that it is not regulated in Customary Law. This is clearly seen from the formulation of article 111 paragraph (2), namely the sentence “……. mutatis mutandis for drafting techniques and procedures…”. The meaning of “mutatis mutandis” according to Black's Law Dictionary Ninth Edition, means: All necessary changes having been made; with the necessary changes <what was said regarding the first contract applies mutatis mutandis to all the later ones. Meanwhile, according to the book Legal Terminology by I.P.M. Ranuhandoko, mutatis mutandis means with necessary changes.