Syntax Literate: Jurnal Ilmiah Indonesia p–ISSN: 2541-0849 e-ISSN:
2548-1398
Vol. 9, No. 10, Oktober 2024
JURIDICAL REVIEW OF THE ISSUANCE OF MINISTERIAL
REGULATIONS WITHOUT ANY DELEGATION FROM THE LAW
Raissa Safatiara1*, Citraresmi Widoretno
Putri2
Universitas Pembangunan Nasional Veteran
Jakarta, Indonesia1,2
Email: Email: [email protected]1*, [email protected]2
Abstract
Ahead of the
syncronous Regional Elections (Pilkada) that to be run in November 2024, there
is still a polemic related to the legal guidelines for the acting of regional
heads’s levitation whose term of office ends ahead of the 2024 simultaneous
elections. The legal basis for the Minister of Home Affairs Regulation Number 4
of 2023 concerning Acting Regional Heads issued by the Minister of Home Affairs
is considered to have many irregularities. This paper reveal the absence of
statutory delegation in the issuance of the Permendagri and the use of legal
considerations of the Constitutional Court judges in the Constitutional Court
Decision Number 15/PUU-XX/2022 as a consideration in the Permendagri. The
research method used in this paper is normative juridical through a statutory
approach as a source of existing law. The results of this study conclude that
the issuance of Permendagri No. 4 of 2023 is unfounded if only viewed through
the presence or absence of delegation of the formation of implementing regulations.
If viewed more broadly through the theory of discretion, then this is
considered valid, in order to fill the legal vacuum. The legal deliberations of
the Constitutional Court judges in MK’s Decision Number 15/PUU-XX/2022 also
strengthen the legitimacy of the issuance of Permendagri No. 4 of 2023, this is
because the content of the legal considerations is considered to be
commensurate with the ruling, even though the ruling was rejected. Unfortunately, the implementing regulation
chosen by the government to regulate the inauguration of acting regional heads
is in the form of a Minister of Home Affairs Regulation, not a Government
Regulation.
Keywords: Ministerial
Regulations, Statutory Delegations, Legal Considerations
Introduction
The election of
regional leaders, which we commonly know as regional elections, is a procedure
carried out to submit the sovereignty of the people through the process of
electing government leaders in the regions democratically
In Article 101 of Law
Number 10/2016 on Pilkada that the 2024 regional election voting will be held
in November 2024
Initially, the
mandate of acting regional heads generated a lot of polemics in the community
due to the absence of implementing regulations regarding the mechanisms and
requirements that became the benchmark for the government in acting regional
heads designation. This led to public suspicion concerning the transparency of
the selection of acting regional heads, so there was potential for the acting
heads to be selected without experience, integrity, and good credibility. The
absence of community involvement in the process of selecting acting heads also
makes the aspirations of the people in the regions not well channeled,
especially in terms of the figure of regional leaders needed by local community
After Constitutional
Court (MK) decision Number 15/PUU-XX/2022 the Minister of Home Affairs, Tito
Karnavian ratified the Permendagri Number 4 of 2023 concerning Acting
Governors, Acting Regents, and Acting Mayors in response to public criticism
and follow-up regarding the MK’s decision Number 15/PUU-XX/2022 on April 5,
2023.
Article 8 paragraph (1) of Law No. 12/2011 on the Formation of
Legislation regulates Ministerial Regulations. This article explains that
Ministerial Regulations are included in other regulations other than those
mentioned in Article 7 paragraph (1) of Law No. 12/2011. In addition, Article 8
paragraph (2) of Law No. 12/2011 states that Ministerial Regulations are
binding if they are stipulated by higher laws and regulations or made through
the primary of the relevant Ministerial authority. Ministerial Regulations are
basically needed in order to implement the provisions of higher laws and
regulations, which explicitly request or order the making of further
regulations in the form of Ministerial Regulations
In making Ministerial
Regulations, several things need to be considered, namely contained in the
Stufenbau theory (ladder theory) proposed by Hans Kelsen, that, regulations
(norms) their binding force comes from a higher regulation (norm)
There are several conditions for delegation
of authority to form Ministerial regulations according to Jimly Asshidiqie,
such as
1) There is clear direction on the
subject matter of the implementing agency that is granted the delegation of
authority, as well as the format of the implementing regulation that explains
the content of the delegation of authority;
2) There is clear direction on the
type of implementing regulations that should be used to include the given
regulatory material;
3) The law or lawmaking body gives
a clear mandate to the delegated body, without specifying the type of
regulation being mandated.
The nature of the three provisions above is
alternative, there is at least one of the three to be the reason for the
delegation of regulatory authority (rule making power). After the law as
"primary legislation" has instructed or handed over the authority to
establish a regulation, only then can the law implementing agency hold the
authority to issue regulations that are binding in general, because the most
important provision for delegating the authority to form regulations is that
there must be an order or delegation that is expressly contained in the law
Often, delegation is only mentioned as the subject of the grant, not the
form. The President, in his position as the leader of the government, has the
power to issue legal products such as Government Regulations, Presidential
Regulations, or order his ministers to make and stipulate Ministerial
Regulations if higher regulations mention that certain matters that intersect
with these regulations will be further regulated in implementing regulations
made by the government
As the leader of the
government, the Minister can issue Ministerial Regulations in their respective
fields because there is an explicit order regarding the delegation of authority
to make implementing regulations. However, if the type of implementing regulation
that is intended to express the delegated regulatory material is not clearly
and explicitly defined, then the institution receiving the delegation must
determine the form of the implementing regulation itself.
This issue relates to Permendagri Number 4 of 2023 concerning acting
regional heads. This regulation was made based on the MK’s decision Number
15/PUU-XX/2022, which recommended the government to issue implementing
regulations relating to acting regional heads. This Minister of Home Affairs
Regulation was made without a higher law.
Based on this
background, the problems that can be identified in this article are: First,
related to the absence of direct delegation from the law that is used as a
consideration. Second, the legal considerations in the Constitutional Court
Decision used as the basis for the formation of the Minister of Home Affairs
Regulation; Third, the ideal form of implementing regulations as the
implementation of the Constitutional Court decision.
Research Methods
This research uses
normative juridical research methods, which are based on activities that study
elements to solve problems related to positive law carried out through a review
of concepts, theories, legal principles and laws and regulations relevant to
this research. The nature of this research is normative legal research with
library research through a statutory approach (Statue Approach) as an
existing legal source. Primary legal material comes from legislation related to
this paper, while secondary legal material comes from scientific papers, books,
articles, legal expert opinions, and other legal sources.
Results and Discussion
No Direct Delegation from the Law
Ministerial regulations are one type of legislation that has binding
legal force as long as it is ordered by regulations above it or made based on
authority, this is in accordance with Article 8 paragraph (2) of Law Number
12/2011 concerning the Formation of Legislation.
Based on the theory of delegation, the phrase "ordered by higher
regulations" falls under the category of delegation of authority.
Supplementary regulations, also known as delegated regulations, are
implementing regulations of the law. In this case, an executive agency that is
outside the parliament makes the implementing regulation. The delegated
authority is the beginning of the order to establish implementing regulations.
This indicates that the higher legislation must give clear orders to establish
implementing regulations. In this case, the implementing regulation is a regulation
made by an agency external to parliament, such as a minister, who is tasked
with implementing the law as a product of the legislature.
Appendix II of Law Number 12/2011 on the Formation of Legislation,
numbers 198-216, provides further explanation on delegation of authority. Which
in essence in the explanation of number 198 states "Lower laws and
regulations can be given the authority to regulate further if ordered by higher
laws and regulations." In the explanation of number 211, it is explained
that the form of Ministerial regulations as the implementation of delegated
regulations is only limited to technical administrative arrangements. This is
to prove that the authority to regulate owned by the Minister to issue
Ministerial regulations comes from the delegation of laws
Currently,
normatively, Ministerial regulations and Ministerial instructions are
explicitly stated that they can only be issued based on and sourced from higher
laws and regulations. Therefore, currently the formation of Ministerial
Regulations cannot be formed through authority and is limited only if it gets
delegation from higher regulations. According to a statement from Maria Farida,
Ministerial Regulations fall into the group of policy regulations with an
inward regulating character. A strong legal basis accompanied by the hierarchy
of legislation in force in Indonesia is the basis for the formation of
Ministerial Regulations. Philipus M. Hadjon in his statement stated that the
material of the Ministerial Regulation contains provisions that are the jurisdiction
of the Ministry's field
The rules regarding delegation to laws and
regulations under the law are contained in Law No. 12/2011 including
Ministerial regulations in terms of submitting delegations and receiving
delegations. Redactionally, the rules for formulating the form of delegation
are defined as follows
1) Delegated rules must be used to
govern partially delegated matters. The sentence used should not be
sub-delegated to the rules below. Sentence used: ...further provisions
concerning ... shall be regulated by...
2) The use of the sentence ...further provisions
concerning ... shall be regulated by or based on ... is used in cases where
the regulatory material can be further delegated, also known as subdelegation.
Based on this provision, it can be concluded that Law No. 12/2011 explains
about subdelegation.
4) The use of the phrase ...provisions concerning
...provided for by or under ... is used in cases where the content is
permitted to be further delegated than such arrangements.
5) The use of the phrase ...provisions concerning ...are
regulated in ... is used in situations where the Laws and Regulations
stipulate some given material, even if it is only mentioned in a few articles
or paragraphs.
6) The use of the phrase ...(type of Laws and
Regulations)... concerning implementing regulations ... is used in cases
where several delegated materials are combined into one implementing regulation
of the delegated Laws and Regulations..
7) Technical administrative
regulations are limited to the authority granted by law to ministers, heads of
government agencies outside of ministries, or officials with ministerial
equivalent positions.
Regulation of the Permendagri 4/2023 on
Acting Governor, Acting Regent, and Acting Mayor was issued using Article 201
paragraph (9), paragraph (10), and paragraph 11 of Law Number 10 of 2016 as one
of its considerations. If examined further regarding the articles used as a
consideration in the regulation, there is not a single sentence that states or
orders the issuance of implementing regulations in accordance with the seven
editorial rules for formulating the form of delegation which have been described
previously
Legal Considerations in the Constitutional
Court Decision as the Basis for Establishing Implementing Regulations
The Constitutional Court is one of the two branches
of judicial power other than the Supreme Court. As a judicial institution
included in the judicial branch, the Constitutional Court is responsible for
hearing cases of judicial review of laws against the 1945 Constitution,
disputes over the authority of state institutions, and disputes over the
results of general elections. This explanation is based on the first paragraph
of Article 24C of the 1945 Constitution
Article 10 paragraph (1) of Law Number 8/2011 on
the Constitutional Court states that the decision of the Constitutional Court
is final and binding. The decision of the Constitutional Court, in addition to
being final and binding, has legal force from the time it is pronounced and
cannot be canceled by legal remedies. In addition, Article 24 C paragraph (1)
of the 1945 Constitution stipulates the final nature of the Constitutional
Court's decision, which also includes final and binding legal force
A judge's
decision can be interpreted as a statement made by a judge at trial in his
position as a representative of the government who has authority over it, and
has the aim of resolving the case. One of the most important aspects in the
birth of a judge's decision in realizing a judge's decision that has justice
and legal certainty is the judge's consideration. This judge's consideration
must be considered carefully, well, and carefully
Judges'
reasoning on the case being handled is needed to build legal considerations on
the empirical reality that occurs. This process is often called legal
reasoning. Legal reasoning itself means the process of thinking, using,
developing, and controlling a problem in the field of law by involving reason.
The involvement of reason itself has the aim that a judge can find legal
reasons to decide a legal case. The results of the legal reasoning will be
stated in the decision in the legal reasoning section or ratio decidendi,
namely the judge's legal reasoning in deciding a case
In the
judge's legal consideration number (3.13.3) in the Constitutional Court (MK)
Decision Number 15/PUU-XX/2022 it is written that "... it needs to be a
consideration and concern for the government to issue implementing regulations
as a follow-up to Article 201 of Law 10/2016, ....". The verdict of
the MK's Decision Number 15/PUU-XX/2022 itself was rejected in its entirety.
Often the
Constitutional Court's decision, which is expected to solve the problem,
actually creates new problems caused by the unclear ruling. Inconsistent legal
considerations and verdicts are often a problem that causes contradictions.
Based on Article 5 paragraph (1) of Law No. 48 of 2009 concerning Judicial
Power, the applicable law in Indonesia must be understood not only as it is but
also must fulfill the justice felt by the community
According to Article 48(2) of the Constitutional
Court Law, as well as Article 33 of Constitutional Court Regulation No.
06/PMK/2005 on Procedural Guidelines in Law Review Cases, the judges'
deliberations in the Constitutional Court's decision basically have the same
legal force as the ruling. This is because the judge's consideration is an
integral part of the Constitutional Court's decision, as explained in the
article on the seven elements of the Constitutional Court's decision that apply
cumulatively, one of which is the judge's consideration, which can result in
the conclusion of a separately written verdit
The substance of legal considerations themselves
consist of two main categories of essence. First, Ratio Decidendi,
also known as the judge's reasoning, is the reasoning used by the judge as the
basis for making a decision on a case
Second,
Obiter Dictum. According to John Chipman Gray, this section
is the opinion of the judge which is not necessary for the decision of the
court. Such statements do not have the force of precedent, but may be
meaningful. Obiter dictum itself often takes the form of overly broad
statements
In the consideration section [3.13.3] in decision
15/PUU-XX/2022, which is also one of the considerations in the Permendagri
4/2023 concerning Acting Regional Heads, the judge's consideration of Ratio
Decidendi is seen from the previous two theories. This was based on the belief
that this rule was made by the court as an interpretation of the article under
review
The Court states in consideration [3.13] that this
is one component of the consideration undertaken by the court when examining
the Applicants' evidence. Essentially, the petitioners oppose the inauguration
of acting regional heads in accordance with Article 201 paragraphs (10) and
(11) of Law No. 10/2016, which they consider to be contradictory to democracy,
popular sovereignty, and justice guaranteed by the Constitution. Although there
is no word "order", the legal considerations used to make the
decision have the same legal force as the Constitutional Court's decision. The
non-acceptance of all requests in a decision cannot be interpreted that the
article under review does not require implementing regulations. Due to the
commensurate legal force between the legal considerations and the ruling, the
government can establish implementing regulations for the election of acting
regional heads. Although it cannot be used as positive law, the considerations
contained in the MK’s Decision Number 15/PUU-XX/2022 can be used as a legal
basis for making laws
The next
thing to be highlighted is that in consideration [3.13.3] in the MK’s decision
15/PUU-XX/2022, it is not clearly and explicitly stated who is then ordered to
make implementing regulations. In the consideration of the decision, it is only
mentioned broadly with the phrase "government". In this case, the
author refers to Ni'matul Huda's opinion, which states that as head of
government, the President has the authority to issue Government Regulations,
Presidential Regulations, or instruct his ministers to draft Ministerial
Regulations
Although
given the freedom to choose the type of implementing regulations, Jimly
Asshiddiqie suggested avoiding the form of Ministerial regulations as
implementing rules. Implementing regulations are better in the form of
government regulations or presidential regulations
This is in line with the opinion of Robert Na Endi
Jaweng, a member of the Indonesian Ombudsman, who emphasized that a Government
Regulation (PP) should be used rather than a Minister of Home Affairs
Regulation (Permendagri). There are four reasons why the implementing rules for
acting regional heads must be made in the form of a Government Regulation
Based on
the direction of Article 86 Paragraph (6) of Law Number 23 Year 2014 on
Regional Government, which stipulates that government regulations regulate the
requirements and term of office of acting governors, regents, and mayors.
1) The jurisdiction to appoint acting regional heads is not
only owned by the Minister of Home Affairs, but also by the President.
Therefore, it is impossible for the President to appoint an acting regional
head, especially an acting governor by using Permendagri as a reference.
2) The issuance of implementing regulations on the Acting
Regional Head through PP is considered to revise the material of a number of
PPs that intersect.
3) The material of the implementing regulations of the
Acting Regional Head must contain the appointment and limitations of his
authority. Therefore, the legal umbrella must be strong, it should even be
compiled in the form of a law, but the lengthy process of drafting a law will
take a long time, government regulations can be an alternative for this.
With its
legal force, the judge's reasoning can create a new law that is final and
mandatory, forming the executorial power in this discussion. Although the legal
judgment has been integrated, the competent authority still has to apply it in
a particular case. The government is the competent authority here. The
necessary regulations, made by the government to follow up on Article 201 of
Law No. 10/2016 on Pilkada, are intended to provide strict and detailed
processes and provisions for the filling of positions while taking into account
the principles of democracy and to ensure that the process of filling positions
is carried out in a clean, open and accountable manner in order to produce
leaders with expertise, integrity and in accordance with the law
Conclusion
Minister of Home
Affairs Regulation Number 4 Year 2023 on Acting Governor, Acting Regent, and
Acting Mayor uses Article 201 paragraph (9), paragraph (10), and paragraph (11)
of Law Number 10 Year 2016 on Pilkada as one of its considerations. However, if
examined further, the article mentioned does not order to make implementing
regulations. This means that it violates the rules of the hierarchy of
legislation because it does not fulfill the main requirement for making
implementing regulations, namely direct delegation from higher laws.
Although there is no
delegation from higher laws, the legal considerations of the judges in
Constitutional Court Decision Number 15/PUU-XX/2022 can be used as
legitimization for the issuance of this Permendagri. Although the verdict was
rejected in its entirety, the legal considerations of the judges in the verdict
who advised the government to make implementing regulations related to Article
201 of Law No. 10/2016 are considered as interpretations and interpretations of
judges that have legal force commensurate with the verdict. Even so, the
implementing regulation should not be in the form of a Minister of Home Affairs
Regulation (permendagri), but a Government Regulation (PP).
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Copyright holder: Raissa
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