MORAL ARSENAL IN THE FORMATION OF LAWS

MORAL ARSENAL IN THE FORMATION OF LAWS[1]

By: MAHTahapary

 

A.     Introduction

Human life in the world is full of various problems, both arising in relationships between individuals and groups. Law is used to resolve every problem that arises in society. Law, which is built within the framework of legislation, aims to regulate relationships within society, thereby achieving the hope of justice and prosperity. This goal can be achieved through a long process involving various groups, both government and legislators. The laws that regulate social life in the Republic of Indonesia also go through a process until they are accepted by the community. The resulting laws are expected to fulfill the sense of justice for the people who will implement them in their shared lives.

The moral arsenal in lawmaking has recently become a hot topic of discussion and continues to give rise to differing views on moral aspects so as to produce good laws in accordance with the values ​​of Pancasila. Since Indonesia's independence until now, the laws made have always caused controversy in their implementation because they always conflict and are not in harmony with other laws or with the constitution, namely the 1945 Constitution of the Republic of Indonesia. This is because the laws made in substance contain more interests of various parties, resulting in laws that are not harmonious.

The drafters of laws, whether from the executive or from the legislature, as initiative proposals, always give rise to long debates during discussions to fight for group interests, political party interests, central government interests and various other interests, so that the interests of the people are increasingly marginalized in the laws that are formed.

Laws are political products because they are created within political institutions. As a political institution, the DPR accommodates various political interests from various parties, including those of individual political parties and specific groups.

The struggle to uphold interests that must be incorporated or formulated into legal norms often neglects moral aspects. Yet, morality plays a crucial role in guiding lawmakers, enabling them to produce objective and just thinking for the benefit of the greater good of all, or humanity.

Moral legislators will certainly produce laws that not only guarantee legal certainty but also laws that can provide a sense of justice and prosperity for the community. Good and quality laws are laws that are the soul of all the needs and interests of society. Legislation is a difficult job because a law must be able to answer various complex problems in society.

Lawmakers, in addition to possessing basic legal knowledge and other related disciplines, must also possess the artistic ability to reconcile diverse differences into something harmonious and acceptable to all parties. A crucial and crucial factor is the mental and moral well-being of the lawmakers. A sound mental and moral well-being will undoubtedly have a positive influence on the formulation of a law.

The characteristics of the legislators significantly influence the substance of a law. Therefore, studies of the moral aspects of lawmaking are important and interesting as a focus of study or research in the legal field. The proverbial saying that laws are created to protect the interests of those in power is an interesting topic to explore.

This shows us that a moral crisis has occurred among lawmakers. Essentially, a moral crisis can be characterized by two symptoms: tyranny and alienation. Tyranny is a symptom of the breakdown of social behavior, while alienation signals the breakdown of social relationships.

Based on the background above, it is interesting to write and study whether moral aspects play a role in the law formation process.

 

B.     Discussion

In connection with the formation of laws according to Bagir Manan (1994: 13-20), in order for the formation of laws to produce strong and quality laws, three foundations can be used in drafting laws, namely First, legal basis (legal horse); Second, sociological basis (sociological gelding); Third, philosophical basis (philosophical horse). The importance of these three basic elements for the formation of laws, so that the laws that are formed have legally valid rules (legal validity), and is able to be effective because it can or will be accepted by society in a reasonable manner, and is valid for a long time.

According to Jimly Asshiddiqie (in Yuliandri: 2009: 29-30), regarding the basis for the formation of laws, by looking at the technical side of the formation of laws, the basis for the formation of laws must be reflected in the "considerations" of a law. The considerations of a law must contain good legal norms, which become the basis for the validity of the law, which consist of:

First, philosophical basis. Laws always contain idealized legal norms (ideal norms) by a society towards which the noble ideals of social and national life are to be directed.

Secondly,, sociological basis. That every legal norm set out in the law must reflect the demands of society's own needs for legal norms that are in accordance with the reality of society's legal awareness.

Third, political basis. That the considerations must also depict the existence of a constitutional reference system according to the ideals and basic norms contained in the 1945 Constitution as the main source of policy or legal political source that underlies the formation of the relevant law.

Fourth, legal basis. In the formulation of every law, this legal basis must be placed in the consideration section “remembering”.

Fifth, administrative basis. This basis is “optional” (as needed), meaning that not all laws include this basis.

If these five foundations are fulfilled in every process and substance of the formation of legislation, it is hoped that all the laws produced will be good, high-quality and sustainable laws.

In this context, Otto (in Yuliandri, 2009: 28) states that there are relevant factors in the theory of law formation that influence the quality of law (the legal quality) and the substance of the law (the content of the law), that is :

1)      The synoptic policy-phases theory;

2)      The agenda-building theory;

3)      The elite ideology;

4)      The bureau – politics theory or organizational politics theory;

5)      The four rationalities theory.

Among the five types of theories of law formation "the agenda – building theory"It seems that procedurally it has similarities with the situation and conditions of legal formation in Indonesia, which procedurally has the characteristics of"a bottom-up approach" which is implemented in the process of forming laws in the form of "love nets" or "public tests" but in its implementation it only serves to fulfill procedures.

In relation to this, it can be observed that many Draft Laws (RUU) are included in the National Legislation Program list, but generally there are RUUs that appear to have no relevance and there is overlapping regulation with one another, without a clear agenda and synergy with one another.  

In fact, many legal products are heavily influenced by the political interests of those in power. They ask: why should this happen? It turns out that law is not sterile from other societal subsystems. Politics often intervenes in the creation and implementation of law, raising the question of which subsystem, between law and politics, is actually more supremacy. More specific questions can also arise, such as how politics influences law, why politics intervenes so much in law, and what type of political system can produce legal products with such characteristics. Efforts to provide answers to these questions are already entering the realm of legal politics.

Politics sometimes also infiltrates government circles when draft regulations are discussed between departments, reflecting sectoral and other interests. Does this fall within the realm of legal politics? These sectoral interests then influence legal politics, which, from the outset, were intended to be beneficial or useful in social life. Once again, the sterilization of legal politics is tainted by sectoral interests.

Human resources, particularly legislators, are considered weak in formulating and expressing their legal political desires, and the small number of drafters of laws and regulations is also one of the causes of the gap between the quantity and quality of legal products. The role of the legislature as the main axis of law formation is often neglected because of the many tasks outside the formation of bills that must be carried out by members of the council, for example, the work of carrying out fit and proper test for certain government positions and other work meetings outside the drafting of laws.  

As we know, the procedure for drafting legislation, in addition to being partially stipulated in the P3 Law, is also regulated in detail in Presidential Regulation Number 61 concerning Procedures for Drafting and Managing the National Legislation Program and Presidential Regulation Number 68 concerning Procedures for Preparing Bills, Perpu, RPP, and Rpresiden. In Presidential Regulation 61, it is stipulated that the drafting of the Prolegnas within the DPR-RI is coordinated by the Legislative Body while the drafting of the Prolegnas within the Government is coordinated by the Minister (Minister of Law and Human Rights). The drafting of the Prolegnas within the DPR-RI and the Government is carried out by taking into account the concept of the Bill which includes:

1. background and purpose of preparation;
2. targets to be achieved;
3. main ideas, scope or objects to be regulated; and
4. range and direction of adjustment.

Regarding the preparation of the National Legislation Program within the Government, the Minister requests other ministers and the heads of Regional Government Institutions (LPND) regarding the planning of the drafting of bills within their respective agencies, in accordance with the scope of their duties and responsibilities. The submission of the drafting plan should include the main material to be regulated and its relationship to other laws and regulations. If another minister or LPND head has prepared an academic paper, the academic paper must be included in the submission of the drafting plan.

After the bill is submitted, the Minister harmonizes, finalizes, and consolidates the draft bill's concept with the planner (initiator) and, together with other ministers and the heads of LPNDs related to the bill's substance. Efforts to harmonize, finalize, and consolidate the draft bill's concept are aimed at realizing this conceptual harmony by:

1. state philosophy;
2. national goals and the aspirations that surround them;
3. The 1945 Constitution of the Republic of Indonesia;
4. other existing laws and all their implementing regulations; And
5. other policies related to the areas regulated by the bill.

Efforts to harmonize, finalize, and consolidate the draft bill's concept are carried out through a consultation forum coordinated by the Minister. If the draft bill is accompanied by an academic paper, the academic paper will be used as discussion material in the consultation forum. Experts from universities and organizations in the social, political, professional, or other community fields may be invited to participate, as needed.

The draft bill that has been harmonized, finalized, and strengthened must first be approved by the Minister to the President as a National Legislation Program (Prolegnas) prepared within the Government before being coordinated with the House of Representatives (DPR-RI). The bill, which has gone through such a long process, is finally passed into law, where the moral role of the legislators in this case is very important because the resulting law is for the sake of the continuity of good life together with the nation in the future.

C. Conclusion

The moral aspect plays an important role in the process of forming laws because without good morals from the legislators, the resulting laws will not be optimal in accommodating all aspects of community life as a whole.

 

READING LIST

 

Bagir Manan, 1994, Constitutional Basis of National Legislation, Andalas Faculty of Law, Padang.

Jimly Asshiddiqie, 2005, Constitutional Law and the Pillars of Democracy, First edition, Constitution Press, Jakarta.

Yuliandri, 2009, Principles for the Formation of Legislation - the idea of ​​forming sustainable legislation, RajaGrafindo Persada, Jakarta.