LEGAL DEVELOPMENT IN THE ISLANDS

LEGAL DEVELOPMENT IN THE ISLANDS[1]

Jemmy J. Pietersz

 

Introduction

Discussing legal development in archipelagic regions is inextricably linked to the concept of the national legal order, which is a system of norms. As a system of norms, the legal order determines what should be done. The terms "norm" and "rule" are generally considered synonymous, but they essentially have different meanings. Norms are essentially concerned with substance, while rules are concerned with form. In this paper, legal development, specifically in archipelagic regions, is concerned with legal regulations, which constitute positive law and are related to the hierarchy of statutory regulations.

Therefore, in discussing legal development in archipelagic regions, we will continue to refer to the principles of the national legal system as outlined in the constitution and other legislation. This paper focuses on legal products at the provincial and district/city levels.

 

Theoretical and Legal Conception of National Legal System

The constitution states that Indonesia is a state based on law (constitutional state), which contains the understanding of the recognition of the principle of the supremacy of law and the constitution as one of the principles of a state based on law. In the concept of a state based on law, the law holds the highest command in the administration of the state (the principle of legality). What truly leads the administration of the state is the law itself in accordance with the principles the Rule of Law, and not a Man, which is in line with the understanding nomocracy, namely the power exercised by law, nomos.

Indonesia as a country of law that adheres to the tradition of the legal system civil lawOne of the main characteristics of regional governance is the importance of legislation. In this context, legislation is used to regulate the administration of the state by state institutions, limit the powers of state administrators, and protect the rights of citizens. Furthermore, considering the characteristics of regional areas and the existence of regional governments, legislation that is specific to a particular region is essential.

As a legal system (legal order) all the laws and regulations in force in Indonesia must be interconnected as a system that is built comprehensively, consistently and hierarchically based on the 1945 Constitution as the basic law and final legitimacy of the validity of laws and regulations and the entire legal system (legal order). To build this legal system, of course, mechanisms and institutions are needed that are capable of guaranteeing the realization of this legal system.

The form of legislation in Indonesia based on the 1945 Constitution (implicitly stated in the constitution) consists of laws (Article 5 paragraph (1); Article 20), government regulations in lieu of laws (Article 22), government regulations (Article 5 paragraph (2)), and regional regulations (Article 18 paragraph (6)). However, in the practice of governance, there are also forms of presidential regulations and village regulations as legislation. The accommodation of regional regulations does not mean that hierarchically regional regulations have a higher position than presidential regulations, because this is linked to the authority and institutions that form legislation in the science of legislation.

The types and hierarchy of statutory regulations in Indonesia are based on Article 7 paragraph (1) of Law Number 12 of 2011 concerning the Formation of Statutory Regulations, which have generally binding legal force, as follows:

a. The 1945 Constitution of the Republic of Indonesia;

b. MPR Decree;

c. Law/Government Regulation in Lieu of Law;

d. Government Regulations;

e. Presidential Regulation;

f. Provincial Regional Regulations; and

g. Regency/City Regional Regulations.

 

The types and hierarchies of the above statutory regulations are generally written regulations in the form of "statutory laws" or "statutory legislations" can be distinguished between the main ones (primary legislation) and the secondary (secondary legislation). ”Primary legislation" also known as "legislative acts", whereas "secondary legislation" also known as "executive acts","delegated legislations", or "subordinate legislation"This division also relates to authority in legislation. In terms of form, there are three categories of regulations:

(1) Legislation of a general nature, that is, it applies generally to everyone and is general and abstract because it does not refer to concrete matters or events or cases that existed before the regulation was established (general statute);

(2) Legislation that is special in nature due to the specificity of the area in which it applies, namely only applies in a certain local area (local statute);

(3) Legislation that is special in nature due to the specific binding power of its material, namely only applies internally (internal statute).

 

The Concept of Legal Development in the Archipelagic Region

The regulation of regional government in Indonesia is normatively based on Article 18, Article 18A, and Article 18B of the 1945 Constitution. The principles in the implementation of regional government contained in Article 18 of the 1945 Constitution, namely: (a) the principle of hierarchical division of regions; (b) the principle of autonomy and assistance tasks; (c) the principle of democracy; and (d) the principle of the broadest possible autonomy. In Article 18A of the 1945 Constitution are the principles of the relationship between the Government and regional governments, namely: (a) the relationship of authority; and (b) the relationship of finance, public services and resource management. Meanwhile, in Article 18B of the 1945 Constitution are the principles of regulating regional government that are special or special in nature, and the principle of the existence and traditional rights of indigenous communities.

Regional government as regulated in Article 18, Article 18A, and Article 18B of the 1945 Constitution is related and cannot be separated from the provisions of Article 1 paragraph (1) of the 1945 Constitution which states that Indonesia is a unitary state in the form of a Republic, Article 4 paragraph (1) of the 1945 Constitution which states that the President holds governmental power and Article 25A of the 1945 Constitution regarding the state territory, which is the container and boundary for the implementation of Article 18, Article 18A, and Article 18B. The affirmation of the Unitary State as regulated in Article 18 paragraph (1) of the 1945 Constitution is the basis for the formation of regions that have the right to autonomy. Meanwhile, in relation to Article 4 paragraph (1) of the 1945 Constitution, the implementation of regional government is a division of power between the central and regional government administrators. In relation to Article 25A of the 1945 Constitution, it is justification that the Indonesian state views its territory as an archipelagic state with the characteristics of the archipelago as recognized in the 1982 United Nations Convention on the Law of the Sea (United Nations Convention on the Law of the Sea 1982) which was ratified by Law Number 17 of 1985. 

Further elaboration of the provisions of Article 18, Article 18A, and Article 18B is regulated in Law Number 32 of 2004 concerning Regional Government. In Law Number 32 of 2004, the regional government organizes government affairs that fall under its authority by exercising the broadest possible autonomy based on the principles of autonomy and assistance tasks (Article 10). The implementation of government affairs is divided based on the criteria of externality, accountability and efficiency by paying attention to the harmony of relations between government structures (Article 11). Government affairs that fall under the authority of the regional government are divided based on mandatory and optional affairs (Articles 13 and 14). In addition, there is a relationship between the Government and regional governments in the fields of finance (Article 15), public services (Article 16), and resource utilization (Article 17).

A new paradigm in regional governance, based on Law Number 32 of 2004, is the accommodation of maritime areas as a regional government authority. Article 18 grants regions the authority to manage resources within maritime areas. This differs from the previous regulation of maritime areas in Law Number 22 of 1999, where maritime areas constituted regional territory or "regional maritime boundaries" (Article 3). This means that regions with archipelagic characteristics have the authority to manage resources within their maritime areas, including:

a. exploration, exploitation, conservation and management of marine resources;

b. administrative arrangements;

c. spatial planning;

d. law enforcement of regulations issued by regions or those delegated authority by the Government;

e. participate in maintaining security; and

f. participate in the defense of national sovereignty.

In relation to the concept of developing regional legal systems, the constitutional basis for legal products in the regions is based on Article 18 paragraph (6) of the 1945 Constitution, which states that: "Regional governments have the right to establish regional regulations and other regulations to implement autonomy and assistance tasks." Based on Article 18 paragraph (6) of the 1945 Constitution, the types of legal products in the regions can be in the form of regional regulations and other regulations. Regional regulations as referred to in the provisions above, in essence can be categorized as "local statute".

Regional regulations are legitimately based in Law Number 10 of 2004 as a type of statutory regulation that has a hierarchy as a statutory regulation below the law. The Regional Regulations in question consist of Provincial Regional Regulations, Regency/City Regional Regulations and Village Regulations (Article 7 paragraph (1) and paragraph (2)). In addition, Law Number 32 of 2004 also regulates regional regulations and regional head regulations as regional legal instruments to implement autonomy and assistance tasks.

Article 14 of Law Number 12 of 2011 stipulates that the content of Regional Regulations comprises all content in the implementation of regional autonomy and assistance tasks, and accommodates the specific conditions of the region as well as further elaboration of higher laws and regulations. Therefore, in the development of regional legal systems in the Maluku Islands region, which has the characteristics of an archipelago with a dominant marine area, the content of regional regulations in the implementation of regional autonomy is always based on Law Number 32 of 2004, especially those related to the management of resources in marine areas which are the authority of the region. In addition, the content of regional regulations that accommodate the management of resources in marine areas also has justification based on Article 14 of Law Number 12 of 2011 which relates to the specific conditions of the region. In this regard, in the development of regional legal systems, planning is very necessary in the development of these legal systems. This is very important because the development of regional legal systems in the Maluku Islands region must be carried out in a planned and directed manner. For this reason, a Regional Legislation Program is needed, which is a planning instrument for the formation of regional regulations that are prepared in a planned, integrated and systematic manner.