Nuryanti Widyastuti, S.H., M.M., Sp.N., the Ministry of Law and Human Rights’ Director for Facilitation of Regional Regulation Planning and Training on Regional Regulation Planning, speaking at the Technical Assistance Program on Legal Drafting Batch I virtually, Wednesday (28/7/2021). Photo by Humas MK/Hendy.
Wednesday, July 28, 2021 | 18:08 WIB
JAKARTA, Public Relations—The virtual technical assistance program (bimtek) on Legal Drafting Batch I for lecturers of constitutional law and state administrative law, organized by the Constitutional Court (MK), continued on the third day, Wednesday, July 28, 2021. The program is organized by the Constitutional Court (MK), in collaboration with the Law and Human Rights Ministry and the Association of Constitutional and Administrative Law Lectures of Indonesia (APHTN-HAN).
Director of Regional Regulation Planning Facilitation and Training Nuryanti Widyastuti delivered a presentation on “The Types, Hierarchy, Functions, and Materials of Laws and Regulations.” She began her presentation by explaining what legislation means.
“Laws and regulations are written regulations that contain norms that are legally binding in general and are formed or stipulated by authorized state institutions or officials through the procedures stipulated in the laws and regulations,” she said.
There are four important points in the definition, she stressed: written regulations, containing norms that are legally binding in general, formed or stipulated by authorized state institutions or officials, and through the procedures stipulated in the laws and regulations. The functions of laws and government regulations in lieu of laws, she said, are to further regulate the provisions in the 1945 Constitution that explicitly mention them, including relations between state institutions or between citizens.
Nuryanti also explained the principles of lawmaking pursuant to Article 5 of Law No. 12 of 2011 on Lawmaking: clarity of purpose, proper institution or official for the formation; as well as compatibility of types, hierarchy, and content. Laws and regulations must be applicable, usable, effective, clear, and transparent.
She added that, pursuant to Article 6 of Law No. 12 of 2011, laws and regulations must apply the principles of humanity, nationality, kinship, archipelago, unity in diversity, justice, equality in law and government, order and legal certainty, and/or balance and harmony.
Pursuant to Article 7 of Law No. 12 of 2011, the types of laws and regulations according to their order of hierarchy are the 1945 Constitution, the decrees of the People’s Consultative Assembly (MPR), laws and government regulations in lieu of laws, government regulations, presidential regulations, provincial regulations, and regency/city regulations.
Pseudolaw
The next speaker, Head of Sub-directorate for Planning and Preparation of Law and Regulation Drafts Muhammad Waliyadin, talked about “Pseudolaw.”
Pseudolaw can be interpreted as the authority to interfere for public interest. So what are the requirements for it? First, all legislation must not conflict with statutory laws and regulations.
“Next, pseudolaw is formed under urgent circumstances to carry out general government duties. In addition, pseudolaw must be accounted for ethically and morally,” Waliyadin explained.
Therefore, he added, pseudolaw seems like ordinary laws and regulations in terms of types, forms, and hierarchy. It is called pseudolaw because it resembles statutory laws and regulations. It is drafted by relevant government organs, which means it is formed, issued, or drafted by government agencies or state administrative institutions, both at the central and regional levels, which carry out general government tasks.
Pseudolaw is not based on statutory laws and regulations that expressly authorize the government to form or publish it. This means that pseudolaw does not need any basis that expressly orders its formation. The authority to issue pseudolaw is under a doctrine in state administrative law that asserts that a government organ is implicitly allowed to have the authority to formulate policies to carry out general government duties.
Harmonization of Laws and Regulations
The next speaker, Planner and Head of the Subdirectorate for Harmonization of Industry, Commerce, Research, and Technology Widyastuti, talked about harmonizing laws and regulations, which is stipulated in the Regulations of the Minister of Law and Human Rights No. 20 of 2015 and No. 40 of 2016 on the Procedure for Harmonizing, Completing, and Consolidating Bills of Laws and Regulations.
“The legal basis founded the entire lawmaking process,” she said.
However, she added, Law No. 12 of 2011 and its implementing regulations do not expressly define the procedure for harmonizing, completing, and consolidating bills of laws and regulations. It only shows up in the law when the bill is submitted by the House (DPR) and from ministries/agencies to regional regulations.
Widyastuti stressed that Article 46 paragraph (2) of Law No. 12 of 2011 only mentions that the harmonization of the House’s bills is coordinated by the House apparatuses on legislation. Meanwhile, Articles 47, 54, and 55 of the a quo law mention that the harmonization of bills from the president is coordinated by the law minister. Such a procedure only emerged in the Regulations of the Minister of Law and Human Rights No. 20 of 2015 and No. 40 of 2016.
“The procedure for harmonizing, completing, and consolidating bills of laws and regulations… is a process to harmonize bills of laws and regulations and their drafting techniques, to become a unity of laws and regulations within the national legal system,” Widyastuti said.
The sessions of the day were closed by a presentation by the Director for the Harmonization of Laws and Regulations, Roberia, on “The Formulation of Legal Norms.” He explained that linguistic accuracy in imperative in compiling a regulation draft—when designing the initial draft, making revisions, cross-checking, consulting to refining—in order to avoid confusion, ambiguity, misinterpretation, etc.
The designing stage includes drafting the outline of the draft or collecting materials in order to arrange it logically and systematically. The next is discovering the intent, seeking complete information, understanding the existing reality and the desired changes, ensuring that the regulations will lead to the desired changes. This includes research and academic texts/studies. The next stage is composition. At this stage, the formulation is freed from the drafters’ emotions. The last is the conceptual stage.
Roberia also talked about discretion, which Article 1 point 9 of Law No. 30 of 2014 on State Administration defines as any decision and/or action that are determined and/or carried out by government officials to overcome concrete problems faced in the administration of government in terms of laws and regulations that provide choices, do not regulate, or are incomplete. Discretion is also defined as freedom to decide as long as it does not violate the principles of legality and jurisdiction.
The technical assistance program (bimtek) on Legal Drafting Batch I is organized by the Constitutional Court (MK), in collaboration with the Law and Human Rights Ministry and the Association of Constitutional and Administrative Law Lectures of Indonesia (APHTN-HAN). It will take place for five days, from Monday to Friday, July 26- 30, 2021. The participants are lecturers across the country that affiliated with APHTN-HAN, either as managers or members.
Also read:
Court, Law and Human Rights Ministry, APHTN-HAN Hold Legal Drafting Program
Legal Drafting Training: Judicial Review to Lawmaking
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/2/2021 11:57 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.
Wednesday, July 28, 2021 | 18:08 WIB 296