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Draft Regulations and Harmonization Synchronization Legislation on Executive Agencies

Authors:
Draft Regulations and Harmonization Synchronization
Legislation on Executive Agencies
M Jeffri Arlinandes Chandra1,* Purwaningdyah Murti Wahyuni1 Yeni Santi1
1 Lecturer in open university law studies, Open University of Indonesia, South Tangerang, Indonesia
*Corresponding author. Email: Jeffri.chandra@ecampus.ut.ac.id
ABSTRACT
The concept of the legal state is often called the Reachstaat,the rule of law oretat de droit a country that
promotes the concept of law as a cornerstone in doing an action taken by the state. Based on the rule of law in
governance organized under the laws then in running a government should refer to laws- laws that guide the
organization of a country which is based on the wishes of the people. The types of laws - laws contained
inAct No. 12 of 2011 Concerning the Establishment of Legislation. Product legislation made by the executive
branch, namely Law / Government Regulation in Lieu of Law; Government regulations; Presidential decree;
Regulation of the Audit Board, Bank Indonesia, the Minister, body, agency, or commission equivalent
established by Law or Government at the behest of the Act that everything should be harmonized and
synchronization in order to form legislation that is good. The research method used in this study a
combination of normative studies were supported by data - empirical data field research (field
research).Synchronization and harmonization (preview) at the moment only be done in several draft laws -
laws suppose the draft Act (Act) initiatives of the Government, a draft Government Regulation (PP) and a
draft presidential decree (PERPRES) conducted by the Ministry of Law and Human Rights through the
directorate general of legislation while legislative products of non-harmonized legislative bodies are still
many such legislation in accordance with article 8, paragraph (1) Ruling bodies, agencies, ministries and
others. So should all the products the legislation made by the executive branch and the legislature should be
harmonized in advance that any legislation does not collide with one another.
Keywords: Harmoniasi, synchronize, study, executive
1. INTRODUCTION
The concept of the legal state is often called the
Reachstaat,the rule of law oretat de droit a country that
promotes the concept of law as a cornerstone in doing an
action taken by the state[1], Indonesia as a state of law
stated in Article 1 (3) of the 1945 Constitution which
reads, "Indonesia is a country of law". The concept of the
legal state is inseparable from the pillars themselves are
understood rule of law. This understanding is the teaching
which says that the supreme power is there no law or any
other authority, except the law alone[2],
Traits - traits legal state According to Julius Sthall[3], The
elements of a constitutional state (rechsstaat) are:
1. Protection and recognition of human rights
2. State, based on the theory potitica triad;
3. Government organized under the laws (wetmatig
bestuur); and
4. Their judicial state administration in charge of
handling cases of unlawful acts by the government
(onrechmatige overheiddaad).
Based on the rule of law in governance organized under
the laws then in running a government should refer to the
laws - laws that guide the organization of a country which
is based on the wishes of the people. Constitution, which is
in a state guidelines and then translated into laws - laws
which are divided into several types of laws - laws
contained in Law No. 12 of 2011 Concerning the
Establishment of Legislation.
Based on Article 7 paragraph (1) of Act 12 of 2011, types
and hierarchy of legislation formally herarkis is from the
highest in a row was 1945, MPR, Law / Government
Regulation in Lieu of Law (PERPU), Government
Regulation (PP) Presidential Order (PERPRES),
Provincial Regulation (Government) Regulations Regency.
Based on Article 8, paragraph (1) of Act 12 of 2011, There
are also laws - laws that are not included in the
hierarchical but apply basedordered by legislation that is
higher or formed under the authority of that is People's
Consultative Assembly, House of Representatives,
Regional Representatives Council, Supreme Court,
Constitutional Court, Supreme Audit Board, the Judicial
Commission, Bank Indonesia, the Minister, body, agency,
or commission equivalent established by Act or on the
orders of the Government Law Act, Provincial People's
Representative Council, Governor, House of
Representatives District / City, Regent / Mayor, the village
head or the equivalent.
Advances in Economics, Business and Management Research, volume 121
International Conference on Law Reform (INCLAR 2019)
Copyright © 2020 The Authors. Published by Atlantis Press SARL.
This is an open access article distributed under the CC BY-NC 4.0 license -http://creativecommons.org/licenses/by-nc/4.0/. 64
Legal product that was created by the legislature and the
executive either jointly or indenpensi each institution in
accordance with the level and types of legal products. The
legislature (the government) has the function to make the
rules and implementing development activities of the
country. Ie legal product legislatureIn lieu of Law
(PERPU), Government Regulation (PP) Presidential Order
(PERPRES) and regulatory agencies / ministries made
under delegated authority under the Act. Until now, the
executive branch has established as many as 19 760
Regulations which consists of 192 substitutes Government
Regulation Act - Act (PERPU), 4844 Government
Regulation (PP), 1893 Presidential Decree (PERPRES), 12
831 Regulation (CANDY).
Perception of obesity legislation donated by the executive
agency would need to be resolved in a mature and well-
planned, namely through the establishment of
harmonization and synchronization of legislation then
periodic evaluation of the legislation which in practice are
considered problematic. For example Overregulasi
happened in Regulation and Regulatory Institutions /
Departments become major issues in the implementation
of the rule of law, causingmany regulations that overlap
(overregulated)[4], Tumpeng regulatory overlap occurs
due to the presence of egoisme sectoral (departmental),
sehiongga lead to the absence of a shared understanding of
the legislation as a system that discussion by
representatives of the relevant agencies are not exhaustive
but is fragmentary according to the interests of each
institution, the representatives sent by the relevant
agencies often changing and is not authorized to take a
decision so that the opinion submitted inconsistent,
depending on the individual assigned to represent, thus
inhibiting the discussion, the draft legislation will be
harmonized often recently distributed at meetings or newly
learned during the meeting so that the opinion filed
spontaneous and do not necessarily represent the views of
agencies represented,Opinion boss who often motivated by
their specific interests.
Laws and regulations that make a good harmony with
other legislation. Disharmony a legislation with other
legislation either at the same level and are at different
tingakatan, will give rise to a complex problem. Therefore
there needs to be a formulation in the formulation and
evaluation of legislation which was formed at the level of
executive agencies that the legislation that established a
harmonious and synchronized.
2. FORMULATION OF THE PROBLEM
1. Is the formation of legislation in Indonesia has met
the criteria for the establishment of legislation that
good?
2. How the application Preview (Study) Draft
Regulation Legislation And Review (Evaluation)
Regulation Legislation By Executive Institute in
Indonesia?
3. RESEARCH METHODS
The research method used in this study a combination of
normative research were supported by data - empirical
data field research (field research) that studies using
information from the target or subject of study is usually
called the informant or respondent through the instrument
of data collection such as interviews later merge with the
Data from the materials mainly related literature on legal
matters[5] then search approaches that emphasize the
norms contained in the provisions of legislation and legal
theories that exist, and approach the concept (conceptual
approach) which depart from the views and doctrines
yangberkembang in the science of law.[6]
4. THEORY REVIEW
4.1.Types of Regulation Legislation in
Indonesia
Types of laws - laws in Indonesia has been poured in the
Act - Act No. 12 of 2011 concerning the establishment of
laws - laws which set out in Article 7 and Article 8 of the
Act - Act. The theory of the division of kind - the kind of
regulation that isThree (3) groups: wettelijk Regeling
(legislation), beleidsregels (Regulation of wisdom), and
beschikking (Determination). Included inwettelijk Regeling
(Legislation), such as the Constitution, Law, Government
Regulation in Lieu of Law (PERPPU), Government
Regulation (PP) Presidential Order (PERPRES), Regional
Regulation (Perda), Village Regulations, and others.
Includingbeleid sregels (Rule discretion), such as
instructions, circulars, announcements and others. while
includingbeschikking (Determination), such as decrees,
and others - others[7], About what kind of legislation in
Indonesia at this time, the reference is to Article 7 (1) and
Article 8 (1) of Law 12/2011. Article 7 paragraph (1)
regulate the types of laws - laws are:
a) Constitution of the Republic of Indonesia Year 1945;
b) People's Consultative Assembly Decree;
c) Law / Government Regulation in Lieu of Law;
d) Government regulations;
e) Presidential decree;
f) Provincial Regulation;
g) Regulation of the Regency / City.
In addition to the type of legislation that is recognized by
Article 7 (1), Article 8 (1) also set the type of legislation
more include regulations set by the People's Consultative
Assembly, House of Representatives, Regional
Representatives Council, the Supreme Court, the Court the
Constitution, the Supreme Audit Agency, the Judicial
Commission, Bank Indonesia, the Minister, body, agency,
or commission equivalent established by Law or
Government at the behest of the Act, the Board of
Representatives Provincial Governor, House of
Advances in Economics, Business and Management Research, volume 121
65
Representatives District / city, Regent / Mayor, the village
head or the equivalent.
4.2.The Principle of the Estabilishment
Regulation Legislation good
In order to realize the establishment of written law,
particularly legislation requires an orderly arrangement in
the formation of legislation. Establishment of legislation is
essentially a system, as it includes several events / stages
are interwoven in a series inseparable from each other.
These stages are planning, preparation stage, the stage of
discussion, validation stage, the stage of the promulgation
and dissemination phase.
The principles in the formation of rules is appropriate,
namely: formal principles include: the principle of a clear
purpose; the principle of organ / body right; perlumya
principle arrangement; principles can be implemented; and
the principle of consensus. While the principles of the
material covers principles and systematics correct
terminology; principles which can be identified;
samadalam treatment principles of law; and the
implementation of the principle of law according to
individual circumstances[8], While A. Hamid S. Attamimi
argued that the establishment of Indonesian legislation that
should asasasas in sequence can be arranged as: Cita
Indonesian Law; The principle of the State based on the
rule of law and by the constitution; and other principles.
Principles of formation of Indonesian laws and regulations
that should be followed the guidelines and guidance given
by:
a. Cita Indonesian law is none other than Pancasila
(precepts in it act as Norma)
b. Fundamental norms of other countries are also not
Pancasila (precepts in it act as a norm)
c. Other principles, namely:
a) Principles of State Based On the Law which
puts Act as a means of typical settings are in the
primacy of law.
The principles of the Rule of the Constitutional system that
puts the Act as the basis and limits of the implementation
of the activities of government.
4.3.Harmonization and Synchronization in
Formation Legislation good
The formation process of law can basically be divided into
three stages: stage ante legislative covering research,
Filing initiative proposal, design, submission of the bill,
the stage of legislative which includes discussion,
determining the bill into law, Endorsement and earlier
stage legislature include enactment, enforcement,
enforcement Act.[9]
Indonesian legislation so far not been able to meet the
legal needs of the community and have not been able to
also anticipate the development of society in the future.
The inability of the Indonesian laws can be seen from the
products of legislation that there is no validity in the time
period long enough for the often modified and even
replaced or repealed by legislation new.
It ought to be observed that in the future Indonesia
legislation more accommodative and responsive to the
state of today's society and future developments (ius
constituendum). Products legislation which basically has
happened disorientation of the formation it will make such
regulations would be difficult to accept and will collide
with the laws - laws that previously (disharmony). Solve
problems disharmony there is need for a body that
examines the harmonization of laws - laws that one with
the other laws.
To get a legislation is good, then synchronize and
harmonize not only done by adjusting and aligning the
various terms and sentences in various legislations.
Harmonization in the formation of legislation should also
pay attention to the background and concept of thinking,
as well as systems that affect the formation of such
legislation. As an example, if a legislation that has a
background and concept of thinking, and influenced by the
system individualist, would be very difficult to be
harmonized with the regulations imposed in the
background, the concept of thinking and influenced by the
family system.
5. RESULTS AND DISCUSSION
5.1.Formation of the legislation in the
Executive Organization
To establish a legislation that either it must be consistent.
Principles of formation of legislation is good according to
IC van der Vlies in his book Handboek Wetgeving divided
into two groups:[10]
Formal principles: 1) the principle of clear goals (beginsel
van duidelijke doelstelling), ie, every establishment of
legislation should have clear objectives and benefits for
what it is made; 2) The principle of organ / body right
(beginsel van het juiste Orgaan), namely any kind of
legislation should be made by the institution or forming
organs perundagundagan regulatory authorities; legislation
may be reversed (vernietegbaar) or null and void (van
rechtswege nieteg), when made by institutions or organs
which are not authorized;
Pursuant to Article 7 paragraph (1) of the P3, the
government (executive) has the authority to establish Law
- Law (UU) / Government Regulation substitute Act
(PERPPU), Government Regulation (PP) Presidential
Order (PERPRES), Provincial Regulation (Government
PROV) and City District Regulation (Perda KAB / CITY).
Act - Act No. 12 of 2011 Concerning the Establishment
Regulation Legislation lays in forming a legislation to go
through the stages:
1. plan
2. making
3. Discussion
Advances in Economics, Business and Management Research, volume 121
66
4. enactment
5. dissemination
All legislation must be through these stages. Suppose that
in the formation of legislation which is a good government
initiative at every level.
For The preparation of the bill can be done in
two ways. First performed by the National Legislation
Program initiative. Legislation based drafting of laws do
not require permit approval to the initiative of the
President. And second in certain circumstances, the
initiative in drafting an outside Legislation can be done
after the first request permission initiative to the President,
along with an explanation of conception regulation bill
that will be submitted. A description of the conception of
the setting of the bill include:
1) Urgency and goal setting;
2) Targets to be realized;
3) Big Idea, scope, or the object to be regulated; and
4) Scope and direction of the setting.
The President of the letter was copied to the Vice
President, the coordinating minister, the minister assigned
to represent the President / Initiative, and the Minister.
Government final opinion in the discussion of the bill in
the House of Representatives delivered by Menhukham
assigned to represent the President, after first reporting to
the President.
While the preparation of government rules and regulations
is coordinated by the minister president who held
government affairs in the field of law. Draft Regulation
comes from ministries / non-ministerial government
agencies in their respective sectors. Planning and
preparation of government regulation Presidential
Regulation is done in a compilation program of
Government and Presidential Regulation (PP Progsun and
regulation).
In the formation of legislation the government's initiative
the government has to coordinate with government
agencies in charge of part of the ministry of legal affairs,
namely the Ministry of Law and Human Rights, In
accordance with Presidential Decree No. 24 of 2010 on the
position, duties and functions of the state ministry is
conducting its affairs in the legal and human rights in the
administration to assist the President in running the state
government. Director General of Legislation is a section
under the Ministry of Justice and Human Rights has the
duty and function that is[11]:
Formulate and implement policies and technical
standardization in the field of legislation. The function of
policy formulation and standardization are:
1. Preparation Department's policy formulation in the
field of legislation;
2. Implementation of policies in the field of legislation
in accordance with applicable regulations;
3. Formulation of standards, norms, guidelines, criteria
and procedures in the field of legislation;
4. Providing technical guidance and evaluation;
5. Implementation of administrative affairs to all
elements within the Directorate General of designing,
pengharmonisasian, monitoring and evaluation of the
development and establishment of laws and
regulations;
6. Publishing and publication design, process and
results of the draft legislation and support materials
designed legislation.
As Subkoordinasi in the ministry of law and human rights
law is assisted by the directorate general of human rights
and which has a function in accordance with theMinisterial
Regulation No. M.HH-05.OT.01.01 The year 2010
confirmed that the Directorate General for Legislation
performs functions[12]:
1. Design Legislation;
2. Pengharmonisasian Legislation;
3. Enactment, publication, Cooperation Legislation;
4. Legislation Litigation;
5. The design facilitates regional regulation;
6. Promotion and development of Functional
designer;
7. The administration of the Directorate General of
Legislation.
Thus the Ministry of Justice in this case the Director
General of legislation has an important role in the
formation of legislation that is good and principles that can
be controlled through the harmonization and rounding off
so that the friction between the government institutional
sector menjaid reduced and do not overlap.
5.2.Implementation Preview (Study) Draft
Regulation Legislation and Review
(Evaluation)
Regulation Legislation By Executive Institute in
Indonesia
Executive Preview (periodic review) is the term used by
legal experts to refer to the authority of officials or
administrative bodies state to conduct surveillance prior to
the establishment of law and after formation / right test
(toetsingsrecht) against the legislation, which has been
done the harmonization and rounding the relevant
ministries, while the Executive Review is a government's
actions in looking back whether the legislation has
effectively established or may constrain policy will be
taken.
A review of the legislation in Law 12/11 can be described
that rely on a process called harmonization and rounding
the concept of the formation in order terentuklah
legislation is good and consistent in the end.
Harmonization can be described that "comes from the
word" harmony ", which means harmony, conformity,
accord[13], In Big Indonesian Dictionary (2005) defined
the quest for harmony. However, in the Collins Cobuild
Dictionary to find the words harmonious and Harmonize
with the following explanation[14]:
1. A relationship, agreement etc. that is harmonious is
friendly and peaceful.
2. Things are harmonious roomates roomates have
parts make up an attractive whole and the which are
in proper proportion to each other.
Advances in Economics, Business and Management Research, volume 121
67
3. When people Harmonize, they agree about issues or
subjects in a friendly, peaceful ways; suitable,
reconcile.
4. If you Harmonize two or more things, they fit in with
each other is part of a system, society, etc.
Harmonisasi law by Moh. Hasan Wargakusuma[14]
namely "Harmonization of law is a scientific activity
towards processes pengharmonisasian written law refers
both philosophical values, sociological, economic and
juridical. In practice, harmonization is a comprehensive
assessment to a draft legislation, in order to determine
whether the draft regulation, in various aspects, have
reflected the harmony or conformity with the regulations
of national legislation other, with unwritten laws that live
in community, or by conventions and international
agreements, both bilateral and multilateral, which has been
ratified by the government. ", while according to Maria
Farida Indrati Soeprapto definition of" harmonization "in
the formation of legislation is[15]: "An attempt or an
activity to align (make harmony), and adjust (make
appropriate) between a legislation with legislation other,
either parallel (horizontal) or is hierarchical (vertical).
Function harmonization of laws - laws is a function that is
crucial in the formation of laws - laws, so that the
formation of laws - laws are effective and do not overlap
then the need for harmonization in the formation of laws -
the invitation.
The elements that can be drawn from the formulation of
the notion of harmonization, among others: (a) the
existence of conflicting things, clumsiness; (B) harmonize
conflicting things in proportion in order to form a system;
(C) a process or an attempt to realize the harmony,
conformity, harmony, conformity, and balance; (D) the
cooperation between the various factors such a way that
these factors produce a unified whole.
Harmonization undertaken by Kemenkumham that is
limited in terms of legal products Draft - Law, the Draft
Regulation and Draft Regulations Draft Regulation
whereas President, Regulatory Agencies and the Draft
Regulations Provincial and Regency / City.
Limitations harmonization peraturang law - laws, which
resulted in non hamonisasian between laws - laws that one
with laws - laws more so it needs full control over the laws
- laws in a special agency responsible for the
synchronization and harmonization of legislation when
will be formed.
Development of legal materials (legal substances) or
legislation in Indonesia up to now continue, because the
legislation is one of the major joints of the national legal
system. Yet they still found the legislation "problematic",
either because of substance, processes and procedures, as
well as legal aspects of drafting. According to Ahmad M.
Ramli, there are at least three (3) main problems in this
field, namely[14]:
a) Overlapping and inconsistent laws and regulations;
b) Formulation of legislation that is less obvious; and
c) Implementation of the legislation implementing
regulations hampered.
The above problems, among others, due to the process of
establishing legislation that ignores the importance of
deepening of the material, coordination, synchronization
and harmonization with other legislation. Therefore, one of
the priorities that must be carried out in the framework of
the development of the national law is to harmonize
legislation. Harmonization is done systemically early on
that since the time of academic papers (NA), the
preparation of the National Legislation Program
(prolegnas) up to the drafting of laws.
Review concepts in the legislation which is the domain
creation by the government must be controlled so that
there is mehadirkan a legislation that is good and
consistent. Conceptexecutive review virtually unknown in
Indonesia dikarekan review in Indonesia only put
emphasis in maknisme objections filed to the institution
for the settlement of disputes as yukatif that legislation
under the Act are deemed contrary to the law, it can be
submitted to the Supreme Court Judicial Review, while if
there is a presumption of a Law Act contrary to the
Constitution (UUD 1945), it can be submitted for judicial
review to the Constitutional Court.
It should dibenah hereby undertake legal teronbosan in
evaluating legislation is made from the Law until
Regulation Regency / City resulting in the manufacture
ofAct as ius constitutum (Positive Law) would want the
law to be ius constituendum (dicita- aspire law) is
expected to be lasting and enduring, the indicator shows
the laws established a law desired by the community.
As an executive agency whose primary task is the executor
and the forming of legislation in accordance with the Law
on P3 because so far there is not a concept that fits in
evaluating the legislation. The author argues that the need
for periodic evaluation mechanism (Scheduled culling)
and the time of the imposition of an Act - Act (Sunset
Regulations) that is certainly the executive branch has the
responsibility to evaluate Laws - Law have been made.
This has been done by the State of Australia in the
evaluation of legislation in the State.
6. CONCLUSION
1. Pursuant to Article 7 paragraph (1) of the P3, the
government (executive) has the authority to establish
Law - Law (UU) / Government Regulation substitute
Act (PERPPU), Government Regulation (PP)
Presidential Order (PERPRES), Provincial
Regulation (Government PROV) and City District
Regulation (Perda KAB / CITY). Act - Act No. 12 of
2011 Concerning the Establishment Regulation
Legislation lays in forming a legislation to go
through the stages:
1) plan
2) making
3) Discussion
4) enactment
5) dissemination
2. Need for strengthening preventive against the
formation of a good legislation to the evaluation
pattern tiered governance and coordination with the
institutions - institutions relating to the establishment
Advances in Economics, Business and Management Research, volume 121
68
of laws - laws so that no number of the lawsuit
through a judicial review to the Supreme Court and
the Constitutional Court and then need Adaiah the
establishment of regulatory reform in the executive
branch in the periodic evaluation mechanism
(Scheduled culling) and the time of the imposition of
an Act - Act (Sunset regulations) that is certainly the
executive branch has the responsibility to evaluate
the legislation that has been made.
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Advances in Economics, Business and Management Research, volume 121
69
... Harmonization and synchronization of legal products need to be carried out not only when forming new laws (Chandra et al., 2020;Muhapilah et al., 2023) but also on existing legal products because legal dynamics can cause existing legal products to become disharmonious or out of sync with new regulations. The harmonization function is essential in legal scrutiny to identify potential norm conflicts. ...
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Terdapat 2 tertib peraturan perundang-undangan yaitu tertib dasar peraturan perundang-undangan dan tertib pembentukan peraturan perundang-undangan. Praktik sistem perundang-undangan Indonesia pasca diberlakukannya UU 12/2011 menunjukkan permasalahan pada tertib dasar perundang-undangan yaitu kurang terkontrolnya jenis peraturan yang dapat digolongkan sebagai peraturan perundang-undangan, tidak semua jenis peraturan perundang-undangan jelas letaknya dalam hierarki dan terlalu luasnya materi muatan serta kesamaan materi muatan antar peraturan perundang-undangan. Upaya mewujudkan tertib peraturan perundang-undangan dapat dilakukan dengan mengeluarkan jenis peraturan lembaga yang tidak berkategori sebagai peraturan perundang-undangan, meletakkan setiap jenis peraturan perundang-undangan dalam hierarki, dan pengetatan suatu materi muatan yang dapat diatur dengan peraturan perundang-undangan, serta melakukan pembedaan secara jelas materi muatan tiap jenis peraturan perundang-undangan
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