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Constitutional Justice Enny Nurbaningsih delivering a public lecture virtually to students of the Business and Constitutional Law Postgraduate Study Program of the Law Faculty of Gadjah Mada University, Saturday (28/11/2020) from Jakarta. Photo by Humas MK.

JAKARTA, Public Relations of the Constitutional Court—Constitutional Justice Enny Nurbaningsih delivered a public lecture virtually to students of the Business and Constitutional Law Postgraduate Study Program of the Law Faculty of Gadjah Mada University, Saturday, November 28, 2020. She talked about “Indonesian Legislation System After the Enactment of Law No. 15 of 2019.”

“On this occasion, I like to urge [you] to be more critical of the national legislation, because legislation especially its formation is often seen from a highly technical standpoint. Is a law enacted that easily?” she asked.

Not Sudden

From her experience teaching and analyzing legislation, Justice Enny said it is not made suddenly. Otherwise, the objective of the state’s formation would never be realized. “Therefore, each lawmaking process serves to reach the goals of the state. Any change in practice is a different matter. For example, legal politics concerns the political dynamics in lawmaking,” she said.

However, she stressed the importance of the philosophy of lawmaking goal, i.e. to reach the goals of the state. Therefore, the process shouldn’t only be formality, but should be directed to realize the fourth paragraph of the Preamble to the 1945 Constitution. “We used to have the State Policy Guidelines [GBHN]. Now we use the National Development Planning System, in which a framework exists to help us realize [state goals] gradually,” she said.

She said legislation hierarchy is important in lawmaking and is not a mere formality. When a legal product is no longer in line with the hierarchy, it can be revoked through judicial review in the Constitutional Court (laws) or the Supreme Court (regulations under laws).

In Article 7 paragraph (1) of Law No. 12 of 2011 on the Formation of Laws and Regulations the hierarchy of statutory laws are: the 1945 Constitution, People’s Consultative Assembly decrees, laws/government regulations in lieu of laws, government regulations, presidential regulations, provincial government regulations, and regency/city regulations.

Further Analysis

Justice Enny then urged the students to analyze Article 8 of Law No. 12 of 2011, which lists regulations aside from those in Article 7 paragraph (1) to be regulations stipulated by the People’s Consultative Assembly (MPR), the House of Representatives (DPR), the Regional Representatives Council (DPD), the Supreme Court (MA), the Constitutional Court (MK), the Audit Board (BPK), the Judicial Commission, the Bank of Indonesia, ministers, as well as bodies, agencies, or commissions established by a law or by Government as mandated by a law, the provincial Regional Legislative Council (DPRD), governors, the regency/city DPRD, regents/mayors, village chiefs or lurah.

She also urged the students to analyze more critically whether the MPR can issue laws, the House regulations outside of laws, and the DPD laws. “Analyze it one by one. Write a paper on it. You could refer to Article 1 point 2 of Law No. 12 of 2011 on the regulations outside of those in Article 7 of Law No. 12 of 2011,” she said. She also asked them whether the MPR, the House, and the DPD can issue such legal products.

Position of Ministerial Regulations

A student asked about the position of ministerial regulations in a presidential government system. Justice Enny said that many people promoted the amendment to Law No. 12 of 2011, including Articles 7 and 8. She also implored the student to study ministerial regulations, which may not only be legislation, but also policies. She explained that the distinction comes from the minister’s authority when issuing the regulation. As a president’s assistant, the minister’s authority should come from the president, who requested a more technical regulation of one that the president issued.

“However, you could find legal products in Indonesia that delegates [mandate] not to the president in the form of a government regulation or a presidential regulation, but to the ministers. This is interesting. Is it allowed or not in a presidential system?” she said, urging the questioner to develop the question into a thesis.

Writer: Nano Tresna Arfana
Editor: Nur R.
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 12/03/2020 11:49 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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