Constitutional Justice Enny Nurbaningsih speaking at a public discussion on the preparation of national legal development document of 2022 on “Regional Legal Development” organized by the Center for Analysis and Evaluation of National Laws of BPHN, Friday (7/29/2022). Photo by Humas MK.
Friday, July 29, 2022 | 19:13 WIB
JAKARTA, Public Relations—Constitutional Justice Enny Nurbaningsih spoke at a public discussion on the preparation of national legal development document of 2022 on “Regional Legal Development” organized by the Center for Analysis and Evaluation of National Laws of the National Law Development Agency (BPHN) on Friday, July 29, 2022 at JW Marriott Hotel, Surabaya.
Justice Enny began her presentation on “The Constitutional Design of Regional Legal Development” by explaining the goals of the Republic of Indonesia in the fourth paragraph of the Preamble to the 1945 Constitution. She then discussed national legal development by BPHN, which includes legal analysis and evaluation, legal planning, legal counseling and assistance, as well as legal documentation and information network.
“The BPHN’s function also determines how far the impacts of legal development on the realization of law that promotes welfare,” she said.
Legal Analysis and Evaluation
Justice Enny revealed that in the beginning, BPHN had difficulties carrying out legal analysis and evaluation due to the absence of legal basis for that function, because Law No. 12 of 2011 only determines lawmaking stages—planning, drafting, discussion, ratification, and enactment.
In Law No. 15 of 2019 and Law No. 13 of 2022, which amended Law No. 12 of 2011, those stages did not change. However, the monitoring and review stages were added in Law No. 15 of 2019, in which the elucidation states, “Law No. 15 of 2019 is an improvement to Law No. 12 of 2011, and to ensure the continuity of the formation of laws and regulations from planning to monitoring and review….” It also states, “… and arrangements regarding the monitoring and review of legislation shall be an inseparable unit in lawmaking process.”
Regional Legal Development
Justice Enny said the analysis and evaluation (AE) or legal development in the regions is related to Indonesia as a unitary state, in which the regional governments are part of the state government even though they can administer their own government based on autonomy and co-administration (medebewind), including in terms of law.
Therefore, she said, AE guidelines are part of the absolute manifestation of legal affairs, which “may” also be implemented in the regions., following Article 95A of Law No. 13 of 2022 in a chapter on “monitoring and review of laws.” This means that monitoring and review are only intended for laws and the results can be used as recommendations for Prolegnas (national legislative program). No other provisions in Law No. 15 of 2019 and Law No. 13 of 2022 regulates that, mutatis mutandis, monitoring and review be applied on regional regulations, as did previous provisions.
The question remains: can’t monitoring and review be applied on regional regulations? It is understandable that the provisions are only intended for laws, on which regulations below it are based.
“Therefore, if any one law is problematic, it will impact regulations under it. Not to mention, one of the material of regional regulations is the mandate to implement higher regulations,” Justice Enny said.
As such, when laws do not have any issues, thanks to effective monitoring and review, it will positively impact the formation of implementing regulations. “The issue is that until today, legislation in Indonesia is not well organized,” Justice Enny added.
Meanwhile, the new provisions on monitoring and review serve to organize consistent legislation both in the central and regional governments. Therefore, good direction is urgent in order to realize the goals of monitoring and review.
Direction of Regional Legal Development
Justice Enny added that by referring to the notion of legal monitoring and review—the activity to observe, record, and evaluate the implementation of statutory laws so that the achievement of the results, the impacts, and the benefits for the state can be observed. BPHN can certainly design effective ways for carrying out these activities, within both the central government and in the regions. The monitoring and review can be carried out in three stages: planning, implementation of the law, and follow-up.
Before ending her presentation, she emphasized that Article 96 of Law No. 13 of 2022 comprehensively regulated public participation as a follow-up to the Constitutional Court Decision No. 91/PUU-XVIII/2020. These provisions demand public participation in lawmaking, which means that although it is not explicitly stated that monitoring and review is part of lawmaking, because of the elucidation to Law No. 15 of 2019 on lawmaking, it is necessary to at least design public participation in relation to the results of monitoring and review. Public participation is important because the public can be involved proactively in providing input at all stages of monitoring and review.
In addition, Law No. 13 of 2022 has also confirmed the legal analysis functional position in lawmaking, so they need sufficient material to carry out analysis and evaluation as intended by Article 97C of Law No. 13 of 2022 and has definite, standardized work guidelines in monitoring and review so that the results are more focused and accountable.
“The implementation of all monitoring and review activities will greatly assist in accelerating the arrangement of regulations, which have often been discussed. Unorganized regulations resulted in the absence of legal certainty, which is one of the important components for a rule of law,” she said.
Writer : Nano Tresna Arfana
Editor : Nur R.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/2/2022 14:40 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Friday, July 29, 2022 | 19:13 WIB 188