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VILLAGE REGULATION IN THE PANDEMIC OF COViD-19
27/06/2020 Views : 214
I KETUT SUDIARTA
VILLAGE
REGULATION IN THE PANDEMIC OF COVID-19
By
I KETUT SUDIARTA
I.
Introduction
Based on literary studies, there are four types of villages, namely traditional villages, administrative villages, autonomous villages, and mixed villages (Hanif Nurcolis, 2011: 65-66). Examples of such villages are: Indigenous Village in Bali. Administrative Village Example Kelurahan. Autonomous villages, such as Swapraja villages formed under Law No. 19 of 1965. Whereas Mixed Villages (adat and semi-autonomous) are types of villages that have mixed authority between original and semi-autonomous formal autonomy. They are called mixed because their original autonomy is recognized by the law. the law and also given the transfer of authority from the regency / city. Mixed Village Examples are Villages under Law No. 22 of 1999 and Law No. 32 of 2004, most recently regarding villages regulated in Law No 16 of 2014 concerning Villages, Government Regulation Number 43 of 2014 concerning Implementing Regulations of Law Number 6 of 2014 and amended by Government Regulation Number 47 of 2015. In these laws and regulations, some village government affairs such as Village Budget and Revenue, Charges, Spatial Planning and Village Government Organizations require a legal basis in the form of village regulations. The formation of village regulations requires a special skill in its preparation, so that it is important
The established village regulations do not conflict
with the public interest or higher statutory provisions.
The type and substance of
village regulation material determined in Law No. 6 of 2014, firstly relates to
the type of village regulation consisting of Village Regulations, Joint Village
Chief Regulations and Village Head Regulations. Thus there are 3 (three) types
of regulations in the village, namely: a). Village Regulations. b). Joint Rules
of the Village Head, and c). Regulation of the Village Head. Second, related to
the material substance of Article 69 paragraph (4) of Law No. 6 of 2014 only
determines the Draft Village Regulation regarding the Village Budget, Taxes,
Spatial Planning and Spatial Planning and Village Government Organizations must
obtain an evaluation from the Regent / Mayor before being stipulated as a
Village Regulation. In administrative law,
regulations are laws that are in abstracto or general norm that are generally
binding in nature (generally accepted) and their job is to regulate general
matters (Ridwan HR, 2002: 133).
According to S.J Fockema
Andreae the term legislation has 2 (two) different meanings, namely: (I Gede
Pantja Astawa and Suprin Na'a, 2008: 14).
a. Legislation is the process of forming / forming state regulations, both at the central and regional levels.
b. Legislation is all matters of state regulation, which are the result of the formation of regulations both at the central and regional levels.
The foregoing contains meaning in discussing the legislation in addition to questioning the process of formation, also looking at the substitution of the regulation. Likewise with village regulations, in addition to seeing the process of its formation also seen the substance or content.
Satjipto Rahardjo revealed that the nature of the
legislation has the following characteristics (Satjipto Rahardjo, 2006: 83-84).
General and comprehensive nature, which is thus the opposite of specific and
limited traits.
a. Universal. It was created
to deal with future events whose concrete form was not yet clear. Therefore it
cannot be formulated to deal with certain events.
b. He has the power to correct and improve himself. It is customary for a rule to include a clause that specifies the possibility of a review.
Law Number 12 of 2011 Elucidation of Article 7
paragraph (2) explains "hierarchy" is the classification of each type
of statutory regulation based on the principle that the lower Statutory
Regulations must not conflict with higher Statutory Regulations. The hierarchy
and types of legislation regulated in Article 7 paragraph (1) consist of:
a. The 1945 Constitution of the Republic of Indonesia;
b. Decree of the Rakyta Consultative Assembly;
c. Government Act / Regulation in Lieu of Law;
d. Government regulations;
e. Presidential decree;
f. Provincial Regional Regulations; and
g. Regency / City Regulations.
Although it is not stipulated in the provisions of
Article 7 paragraph (1), the terms of the Regulation of the Village Head or the
equivalent can be found in the provisions of Article 8 paragraph (1) with the
following formula:
(1) Types of statutory regulations other than those referred to in Article 7 paragraph (1) include regulations stipulated by the People's Consultative Assembly, Board Representative Council, Regional Representative Council, Supreme Court, Constitutional Court, Supreme Audit Board, Judicial Commission, Bank Indonesia , Ministers, bodies, institutions or commissions of the same level formed by Law or Government by order of the Law, Provincial Regional Representatives Council, Governor, Regency / City Regional Representative Council, Regents / Mayors, Village Heads or equivalent.
Maria Farida Indrati S gave a response to the law that stipulates village level regulations which were made by a village representative body or other name along with the village head, into a type of legislative hierarchy. Regarding this matter as follows ... village representative body or other name together with the village head can still form a Village Regulation, which is regulating (and binding public), in the sense of regulations in the field of government administration only, but not as statutory regulations (Maria Farida Indarti S, 2007: 102)
II. Types and procedures for preparing Village Regulations before Covid-19.
The type of material contained in village regulations
contains material on the implementation of village authority and further
elaboration of the higher laws and regulations. (Article 4 paragraph 1 of PMDN
No. 111 of 2014). Based on the results of a search of several regulations
related to village governance, we can find several types of material contained
in village regulations, including:
a) Law No. 6 of 2014 concerning Villages
i. Article 69 (4) The
draft Village Regulation concerning the Village Revenue and Expenditure Budget,
levies, spatial planning, and Village Government organizations must obtain an
evaluation from the Regent / Mayor before being determined to become a Village
Regulation. From this provision there are types of village regulations (i)
Village APB, (ii) Village levies (iii) Village spatial planning, (iv) Village
Government Organizations.
ii. Article 84 (2)
Establishment of Village BUMDes as referred to in paragraph (1) shall be
determined by Village Regulations.
b) Regulation of the Minister of Home Affairs of the Republic of Indonesia Number 44 of 2016 concerning Village Authorities. In Article 23 (1) Based on the Regulations of the Regent / Mayor concerning the list of the Authority of Villages and Customary Villages as referred to in Article 22 paragraph (4), the Village Government shall stipulate Village Regulations concerning authority based on origin rights and local authority on a village and village scale. Whereas paragraph (2) determines the Village Regulations referred to in paragraph (1) according to the situation, conditions and local needs of the village concerned.
Of the several provisions in Law No. 6 of 2014 and
PMDN Number 44 of 2016 there are several types of Village Regulations that can
be made in their respective Villages, including: (1) Village APB, (2) Village
Charges, (iii) Village Spatial Planning , (iv) Village Government
Organizations, (v) Village Medium-Term Development Plans, (vi) Village
Government Work Plans, (vii) Village BUMs, and (viii) Authority based on
village-origin rights and local scale authority. Before the government
established Covid-19 as a pandemic outbreak, the procedure for drafting village
regulations was carried out in several stages, namely:
a)
Planning, this stage of
drafting the Village Regulation draft is determined by the Village Head and BPD
in the Village Government's work plan. Social institutions, customary
institutions and other village institutions in the village can provide input to
the Village Government and / or BPD for plans to draft a Village Regulation.
b) The compilation of Village Regulations was initiated by the Village Head, the draft draft material can be consulted with the Camat to get input, and consulted with the community or community groups directly related to the substance of the regulatory material. The village regulation draft that was consulted was submitted by the Village Head to BPD for discussion and mutual agreement.
c)
Village Regulation was
initiated by the BPD. BPD (Village Government Agency) can compile and propose a
draft Village Regulation, except for the draft Village Regulation on the
medium-term development plan of the Village, the draft Village Regulation on
the work plan of the Village Government, the draft Village Regulation on the
APB Village and the draft Village Regulation on the accountability report on
the implementation realization APB Desa.
d) Discussion. BPD invites
the Village Head to discuss and agree on the draft Village Regulation. In the
event that there is a draft Village Regulation initiated by the Government of
the Village and a BPD proposal on the same matter to be discussed in the same
discussion period, then the draft Village Regulation proposes the BPD proposal
while the Draft Village Regulation proposed by the Village Head is used as
material for comparison. Draft Village Regulations that have not been discussed
can be withdrawn by the proposer. Draft Village Regulations that have been
discussed cannot be withdrawn unless by mutual agreement between the Village
Government and the BPD. become village regulations no later than 7 (seven) days
from the date of agreement. The draft village regulations must be determined by
the village head by signing at the latest 15 (fifteen) days from the receipt of
the village regulation draft from the leadership of the Village Consultative
Body.
e) Determination of the
draft Village Regulation that has been signed must be submitted to the Village
Secretary for promulgation. In the event that the Village Head does not sign
the Village Regulation Draft the Village Regulation Draft must be promulgated
in the Village Gazette and legally become a Village Regulation
f) Promulgation of the Village Secretary promulgating village regulations in the village gazette. Village regulations are declared effective and have binding legal force since enactment.
III. Basic Value Formation of Village Regulations at Covid-19
With the existence of the Covid-19 pandemic, various
policies were carried out by the government from the central to the village to
jointly prevent and overcome Covid-19. One of the government policies in
preventing and overcoming Covid-19 is to relocate the village fund budget that
has been stipulated in village regulations to prevent and handle Covid-19. In
the Regulation of the Minister of Villages, Development of Disadvantaged
Regions, and Transmigration of the Republic of Indonesia Number 6 of 2020
Regarding Amendments to the Regulation of the Minister of Villages, Development
of Disadvantaged Regions, and Transmigration Number 11 of 2019 Regarding the
Priority of the Use of Village Funds in 2020 Article 8A paragraph (1)
Non-natural Disasters as referred to in Article 8 paragraph (1) letter d is a
disaster that occurs as a result of extraordinary events such as the spread of
diseases that threaten and / or affect citizens on a large or large scale, at
least in the form of: (a). Pandemic Corona Virus Disease 2019 (COVID-19), (b)
avian influenza pandemic, (c) Cholera outbreak; and / or (d). other infectious
diseases. Natural disasters are caused by natural events such as earthquakes,
tsunamis, volcanic eruptions, floods, droughts, and landslides. Natural
disasters for villagers are not easy events to predict. Therefore, immediately
after a natural disaster an emergency response activity is carried out.
Non-natural disasters include infectious diseases or pandemic diseases such as
Corona Virus Disease 2019 (COVID-19). The Village Fund can be used to fund
natural disaster and / or non-natural disaster response activities.
The Minister of Villages, Development of Disadvantaged
Regions, and Transmigration of the Republic of Indonesia in Circular Letter No.
8 of 2020 concerning Covid-19 Villages and Labor-intensive Affirmations in
letter G expressly determine that this Circular Letter becomes the basis for
APBDes changes to shift the expenditure of fields and sub-fields another
becomes the field of disaster management, emergencies and urgency of the
village, and the field of implementation of village development for the Village
Cash Intensive Work (PKTD) as stipulated in the Minister of Home Affairs
Regulation No. 20 of 2018. concerning Village Financial Management. While in the
villages that are included in the Covid-19 Extraordinary (KLB) area, the APBDes
can be directly changed to meet the COVID-19 response needs in the Village. The
Extraordinary Criteria (KLB) is regulated in the Regents of the Regent or Mayor
regarding village financial management.
In an emergency, village regulations governing changes
in village funds are difficult by means of mechanisms or procedures ranging
from planning, discussing, and enacting village regulations such as before
Covid-19 as stipulated in Law No. 6 of 2014.Regulation of the Minister of Villages, Development of
Disadvantaged Regions, and Transmigration of the Republic of Indonesia Number 6
of 2020 Regarding Amendments to the Regulation of the Minister of Villages,
Development of Disadvantaged Regions, and Transmigration Number 11 of 2019
Regarding Priority of the Use of Village Funds in 2020 Appendix I letter C
determines the priority of the use of Village Funds based on on the principle:
(i) Priority needs, namely prioritizing the interests of the Village which are
more urgent, and directly related to the interests of most villagers, (ii)
Justice by prioritizing the rights and interests of all villagers without
discrimination, (iii) Village Authority based on rights the origin and local scale
authority of the Village, (iv) Focus is to prioritize the choice of using
Village Funds in 3 (three) to 5 (five) types of activities according to the
needs of the community in accordance with national priorities and the practice
of using Village Funds that are not evenly shared. (v) Participatory by
prioritizing initiatives, creativity, and the participation of the village
community, (vi) self-management by prioritizing village independence in the
implementation of village development activities funded by village funds. (vii)
based on village resources by prioritizing the utilization of human and natural
resources in the village in the implementation of development funded by the
Village Fund.
With this Circular, there is a shift in the principle
of the use of village funds as outlined in the village regulation. If prior to
the Covid-19 pandemic, the use of village funds contained in village
regulations was tightly regulated by mechanisms ranging from planning,
discussion with BPD and enactment, but with the existence of the Covid-19
pandemic, the mechanism and procedure for determining the use of village funds
were prioritized prioritizing interests The village is more urgent, and is
directly related to the interests of most villagers.
If viewed from the objectives of the law as described
by Rudbruch that the law is required to meet the basic values of the law,
namely justice, usefulness and legal certainty. Although all three are the
basic values of the law, there is a tension with each other, because all
three contain claims that are diamond. If the value of legal certainty will
shift the values of justice and usefulness laterally. The main thing for
legal certainty is the existence of the regulation itself (Satjipto Rahardjo,
2006: 19). The regulation of village funds (APBDes) in the village regulations
prior to the Covid-19 pandemic prioritized is legal certainty, thereby shifting
the values of justice and usefulness, whereas at the time of the Covid-19
pandemic, that the principles of managing village funds as specified in the
Circular Regulation of the Minister of Villages, Development of Disadvantaged
Regions, and Transmigration of the Republic of Indonesia Number 6 of 2020
Regarding Amendments to the Regulation of the Minister of Villages, Development
of Disadvantaged Regions, and Transmigration Number 11 of 2019 Regarding the
Priority of the Use of Village Funds in 2020 prioritized on the use value.
Bibliography.
Hanif Nurcolis, 2011, Growth and Implementation of
Village Government, Erlangga Publisher.
Maria Farida Indarti S, 2007, Laws, Types,
Functions, and Material of the Content, Kanisius Yogyakarta.
Pantja Astawa I Gede and Suprin Na’a, 2008, The
Dynamics of Law and Legislation in Indonesia
Ridwan HR, 2002, State Administrative Law, Raja
Grafindo Persada Jakarta
Satjipto Rahardjo, Sixth 2006
Legal Studies, Citra Aditya Bakti Bandung