Efforts to Make the DEPKUMHAM Regional Office a Law Center in Facilitating the Establishment of a Regional Regulation

by | Aug 21, 2019 | Article | 0 comments

Efforts to Make the DEPKUMHAM Regional Office a Law Center in Facilitating the Establishment of a Regional Regulation

PRELIMINARY

In Article 18 paragraph (6) of the 1945 Constitution of the Republic of Indonesia, it is said that the Regional Government has the right to stipulate Regional Regulations and other regulations to carry out autonomy and assistance tasks. Regional Regulation is one type of legislation that is intended as a legal instrument in carrying out governance in the region in the context of regional autonomy.

Regional autonomy uses the principles of autonomy to the greatest extent, real, responsibly. The broadest principle in the sense of a region is given the authority to administer and regulate all government matters outside those of the central government. The principle of “real” is a rule in dealing with regional government affairs based on the duties, authorities and obligations that in fact already exist and has the potential to grow, live and develop in accordance with the potential and specificity of the region. While the principle of “being responsible” is meant in its implementation must be completely in line with the purpose and purpose of granting autonomy which is basically to empower the region including improving people’s welfare. Regional Regulations as regulated in Law Number 32 of 2004 concerning Regional Government include Regional Budget Revenues (APBD), Regional Taxes, Regional Levies, Regional Spatial Plans and other Regional Regulations.

In article 12 of Law Number 10 of 2004 concerning the Establishment of Legislation Regulations the loading of Regional Regulations is all material content in the framework of carrying out regional autonomy and co-administration tasks and accommodating special conditions of the region as well as further elaboration of the higher Regulations.

One of the principles adopted in the Statutory Regulations is that the lower level of the Statutory Regulations must not contradict the higher Statutory Regulations.
The President of the Republic of Indonesia through Presidential Decree Number 40 of 2004 concerning the National Action Plan on Human Rights (RANHAM) of Indonesia in 2004-2009 assigns the Minister of Law and Human Rights together with the Governor to form a Provincial RANHAM Implementing Committee and to the Regents / Mayors form the Implementing Committee for District RANHAM Activities / City, which one of the main programs is the preparation of Harmonization of Regional Regulations whose forms of activities include Harmonization of Regional Regulation Draft and Evaluation of Regional Regulation. For this reason it is deemed necessary to guide the Harmonization of Regional Regulation Draft and Evaluation of Regional Regulation for Provincial and Regency / City RANHAM Implementing Committees in implementing the Harmonization of Regional Regulation Draft and Evaluation of Regional Regulation.

Read too : The Goverment VS The Ombudsman : What Role For Judical Review?

Understanding harmonization of Regional Regulation Draft is an effort to harmonize, harmonize, strengthen and round up the conception of a draft Regional Regulation with other legislation, both higher, equal and lower and other things so that they are arranged systematically not conflicting or overlapping superimposed. The purpose of harmonizing the Draft Regional Regulation is to provide a clear picture in thinking or understanding that a statutory regulation is an integral part of the whole system of legislation while the definition of Regional Regulation Evaluation here is the process of presenting the conformity of regional regulations with the public interest and regulations Higher legislation, while the purpose of the Regional Regulation Evaluation is to achieve harmony between regional and national policies, harmony between the public interest and the interests of the apparatus.

LEGAL BASIS

Idiotic foundation, constitutional foundation and operational basis in the implementation of Harmonization of Regional Regulation Draft and Evaluation of Regional Regulation on Human Rights perspective include:

  1. Pancasila
  2. The 1945 Constitution of the Republic of Indonesia
  3. Law Number 39 of 1999 concerning Human Rights (State Gazette of the Republic of Indonesia of 1999 Number 165, Supplement to the State Gazette of the Republic of Indonesia Number 3886)
  4. Law Number 10 of 2004 concerning Formation of Regulations and Regulations (Statute Book of the Republic of Indonesia Number 53 of 2004, Supplement to Statute Book of the Republic of Indonesia Number 4389)
  5. Law Number 32 of 2004 concerning Regional Government (State Gazette of the Republic of Indonesia of 2004 Number 125, Supplement to the State Gazette of the Republic of Indonesia Number 4437) as has been amended by Law
  6. Number 8 of 2005 concerning Establishment of Government Regulations in Lieu of Law Number 3 Year 2005 concerning Amendment to Law Number 32 of 2004 concerning Regional Government into Law (Statute Book of the Republic of Indonesia Number 108 of 2005, Supplement to Statute Book of the Republic of Indonesia Number 4548).
  7. Law Number 11 of 2005 concerning Ratification of the International Covenant on Economic, Social and Cultural Rights (International Covenant on Economic, Social and Cultural Rights) (State Gazette of the Republic of Indonesia Number 118 of 2005, Supplement to the State Gazette of the Republic of Indonesia Number 4557)
  8. Law Number 12 Year 2005 concerning Ratification of the International Covenant on Civil and Political Rights (International Covenant on Civil and Political Rights). (Additional State Gazette of the Republic of Indonesia Year 2005 Number 119, Additional State Gazette of the Republic of Indonesia Number 4558).
  9. Republic of Indonesia’s Presidential Decree Number 40 of 2004 concerning the National Action Plan for Indonesian Human Rights 2004-2009
  10. Circular of the Minister of Home Affairs Number 188.34 / 1586 / SJ concerning Orderly Design and Establishment of Regional Regulations

ROLE OF THE OFFICE OF THE LEGAL AND HAM DEPARTMENT

In the plenary meeting of the Regional House of Representatives on August 15, 2006 President Susilo Bambang Yudhoyono stressed that the formulation of regional regulations must be coordinated with central government agencies, the legal aspects of clarifying regional regulations would be better if coordinated with the Ministry of Law and Human Rights both directly and with Regional Offices of the Ministry of Law and Human Rights in each Province.

The Minister of Home Affairs through Circular Number 188.34 / 1586 / sj dated July 25, 2006 concerning the Orderly Design and Establishment of Regional Regulations. Whereas the Provincial, Regency / City Regional Regulation Draft prior to being consulted by the Provincial Legal Bureau or Regency / City Legal Division to the Provincial Legal Bureau / Ministry of Home Affairs Legal Bureau must first be harmonized with the Provincial, Regency / City RANHAM Committee. The results of the harmonization of the Regional Regulation Draft carried out by the RANHAM Committee in the form of Recommendations for further discussion of the Draft Regional Regulation, as planned in the 2004-2009 RANHAM Activity to Presidential Decree Number 40 of 2004 concerning Indonesia’s National Human Rights Action Plan for 2004-2009. The Governors, Regents / Mayors can utilize the existence of the Head of the Regional Office of the Ministry of Law and Human Rights in their respective regions to harmonize the draft of the Regional Regulation and the Evaluation of the Regional Regulation / Regional Regulation.

In connection with the formation of the Regional Regulation, based on the Decree of the Minister of Justice and Human Rights of the Republic of Indonesia number M.04.PR.07.10 of 2004 dated January 8, 2004, within the Directorate General of Legislation, a Directorate of Facilitation of Regional Regulation Draft was formed.
The main duties and functions of the Directorate of Regulation Facilitation are:

  1. Formulation of Planning and Policy in facilitating the design of Regional Regulations.
  2. Prepare coordination with the Regional Government and Provincial and Regency / City DPRD.
  3. Data Collection, Presentation and Processing.
  4. Monitoring, analysis and evaluation, the development of the implementation of facilitation activities in the design of Regional Regulations.
  5. Implementation of technical guidance on the drafting of regional regulations

HARMONIZATION PROCESS FOR REGIONAL REGULATION DESIGN AND EVALUATION OF REGIONAL REGULATIONS

Harmonization Process of Regional Regulation Draft and Regional Regulation Evaluation is carried out with the following steps:
Harmonization of Regional Regulation Draft

  1. Provincial Government Legal Bureau / Regency / City Government Legal Division / Regional Office Ministry of Law and Human Rights and / or regional implementing committee of RANHAM carry out harmonization of Pre-Regional Regulation (Praraperda) submitted by the Initiative Agency to the Governor / Regent / Mayor and to the Draft Regional Regulations submitted by the DPRD to the Governor / Regent / Mayor.
  2. In order for the implementation of Harmonization of Regional Regulation Draft to take place effectively and efficiently, an Assistance Team is formed, whose members consist of the Legal Bureau / Legal Section, the Office of Related Agencies, the Regional Office of the Ministry of Law and Human Rights and / or elements of the Regional RANHAM implementing committee.
  3. The results of the Assistance Team’s work in the form of revised Regional Regulation accompanied by Minutes of Harmonization Meeting which states that the Regional Regulation has been carried out Harmonization.
  4. Minutes of Results of the Draft Local Regulation Harmonization Meeting shall be completed no later than 20 days from the receipt of the Pre-Draft Regional Regulation / Draft Regional Regulation by the Governor / Regent / Mayor through the Regional Secretary.

Regional Regulation Evaluation

  1. The Governor as the Representative of the Government in the region, the Regent / Mayor and the Provincial / Regency / City RANHAM Implementing Committee conduct an inventory of Regional Regulations and revise or perfect Regional Regulations whose contents do not comply with the values ​​of the Pancasila, the 1945 Constitution of the Republic of Indonesia, Higher laws and regulations and public interest, as well as the principles and content of the formation of regional regulations, are discriminatory, violate human rights, and cause conflict in the community and report the results to the Minister of Home Affairs / Governor with a copy of the National RANHAM Committee / Provincial RANHAM Implementation Committee .
  2. Based on the results of the inventory as referred to in number 1, the Provincial Government Legal Bureau / Regency / City Government Legal Division together with the Regional Office of the Ministry of Law and Human Rights and / or elements of the Regional RANHAM Implementing Committee carry out a review and study of Regional Regulations.
  3. The results of the study and / or research are submitted to the Governor and Regent / Mayor in the form of Recommendations for inclusion in the Regional Legislation Program.

CRITERIA IN HARMONIZING DESIGN OF REGIONAL REGULATIONS AND EVALUATION OF REGIONAL REGULATIONS

In each process of Hatmonization of Regional Regulation Draft and evaluation of Regional Regulation with a human rights perspective, the following criteria need to be considered:

  1. The Draft Regional Regulation / Regional Regulation must not conflict with Pancasila and the 1945 Constitution.
  2. Draft Regional Regulations / Regional Regulations may not conflict with laws and regulations of a higher level as regulated in Article 7 of Law Number 10 Year 2004 Concerning Formation of Regulations.
  3. Draft Regional Regulations / Regional Regulations may not overlap with equivalent regulations.
  4. The Harmonization Process of Regional Regulation Draft and Evaluation of Regional Regulation must not hamper regional empowerment and traditional values ​​that grow and develop in harmony with human rights values.
  5. Harmonization Process of Regional Regulation Draft and Evaluation of Regional Regulation may not hamper the entryof investment for the progress of the regional economy.
  6. Harmonization of Regional Regulation Draft and Evaluation of Regional Regulation is intended to improve the people’s welfare and regional independence.