Determination of the Content of Presidential Regulations According to Article 13 of Law Number 12 of 2011 Concerning the Formation of Legislation

PRELIMINARY

1. widear Back Problem

JJ Rousseau in his book entitled "Du Contract Social" as quoted by Dahlan Tahaib, said; "humans are born free and equal in rights"-their rights, while the law is an expression of the general will (of the people)”. Rousseau's thesis very inspire the birth "De Declaration des Droit de I'Homme et du Citoyen", and through this declaration also inspired the formation of the French constitution (1791) especially those concerning human rights. This period marked the beginning of the concretization of the constitution in the written (modern) sense..[2]

In generalmhis aspiring human-the ideal that there should be no differences in status and role in society. However, the ideal-that ideal will always beimpact in different realities. Every society must place its citizens in their place-a certain place in the social structure and encourage them to carry out their obligations as a result of that placement.[4]

Sri Soemantri as quoted by Suharizal, defines dIndonesian democracy in the formal sense (indirect democracy) as a democracy where the implementation of people's sovereignty is not carried out by the people directly but through institutions-people's representative institutions such as the DPR and MPR.[6]

In a modern democratic system and state based on law, it is generally known that state power is divided and separated.-separate between branches-legislative, executive, and judicial branches of power. Essentially, the power to create or make rules in state life is constructed as originating from the sovereign people, developed within the state organization in the legislative institution as the people's representative institution. Meanwhile, the branches of government-branch of state government power as an implementing or executive organ just follow the rules-regulations established by the legislative branch. Meanwhile, the judicial branch of power act as a party that enforces regulations-the regulation through an independent and impartial judicial process.[8]

Based on this principle of delegation, implementing legal norms are considered invalid if they are formed without being based on the delegation of authority from higher regulations. For example, a Presidential Regulation is formed without being ordered by the President.ndang-Ulaw (law) or Government regulations (PP), then the Presidential Regulation (Presidential Decree) it cannot be formed. Ministerial Regulation, if not ordered by himselfi by Presidential Regulation or Government Regulation, meaning that the regulation in question cannot be formed properly. Likewise, the form-other forms of regulations, if not based on orders from higher regulations, then the regulations are deemed to have no basis that legitimizes their formation. Thus, the authority of the implementing agency to form implementing regulations for the law-the law must be expressly stated in the law-law as a provision regarding the delegation of legislative authorityslasi (legislative delegation of rule-making power) from the legislators-the law to the law implementing agency-law or to the government.[10]

In connection with the above, mIn reality, we often encounter law used as a tool of power and also as a tool to maintain power. Within the framework of implementing and maintaining this power, government actions in a country need to be limited by the constitution (UUD). A. Gunawan Setiardja as quoted by Dahlan Thaib, said hLaw as a regulator of human actions by authority is said to be valid not only in decisions (regulations).-regulations formulated) melainkan also in its implementation in accordance with the law, must be in accordance with natural law. In other words, the law must be in accordance with the nation's ideology and also act as a protector of the people.[12] Furthermore, as a form of implementation of the order of Article 22A of the 1945 Constitution which states that the procedures for the formation of laws are further regulated by law, Law Number 12 of 2011 (Law No. 12 of 2011) has been stipulated as a replacement for Law Number 10 of 2004 concerning the Formation of Legislation.

In Article 7 Paragraph (1) of Law No. 12 of 2011, it is stated that the hierarchy of statutory regulations consists of: "(a). The 1945 Constitution of the Republic of Indonesia; (b) Decrees of the People's Consultative Assembly; (c) Laws/Government Regulations in Lieu of Laws; (d) Government Regulations; (e) Presidential Regulations; (f) Provincial Regulations; and (g) Regency/City Regulations".[14] can be seen from the appointment of Denny Indrayana as Wakil Menteri Hlaw and Hak Asabout Mhumans, where dAmidst the hustle and bustle of the Cabinet Reshuffle and the appointment of Deputy Ministers in several state ministries, one issue has sparked controversy: the appointment of Denny Indrayana as Deputy Minister of Law and Human Rights. Many people at the time publicly stated that Denny Indrayana's appointment violated Presidential Regulation No.mor 47 of 2009 concerning the Establishment and Organization of Ministries Nthe state, especially Article 70 paragraph (3).

It is stated in Article 70 paragraph (3): ""Career officials as referred to in paragraph (2) are civil servants who have held structural positions at echelon Ia." sMeanwhile, Denny Indrayana has yet to reach and occupy a structural position at the echelon Ia level (grade IV.E). Reactions have emerged from members of the House of Representatives, the public, and even legal academics.Due to this public reaction, finally "Palace" provided the answer that the provisions of Article 70 paragraph (3) had been removed with the issuance of Presidential Regulation No. 76 of 2011 concerning Amendments aPresidential Regulation No. 47 of 2009 concerning the Establishment and Organization of Ministries Ncountry. Presidential Regulation No. 76 of 2011, according to the "Palace" was issued by the President on October 13, 2011.

Issuance of Presidential Regulation No. 76 year This 2011 appointment left many who had previously commented on it "misled" by the Palace. Prof. Dr. Himahanto Juwana even had to apologize to all parties, including the President and Vice President, and the public. An apology the author believes was inappropriate, as this was solely the fault of the President and his staff for "covering up" the issuance of Presidential Regulation No. 76 of 2011 from the public.[16]

b. appropriate institution or official who forms it;

c. suitability between type, hierarchy, and content material;

d. can be implemented;

e. usability and effectiveness;

f. clarity of formulation; and

g. openness.

Other than that, mcharge artery pregularity plegislation, tidI am an exceptionPresidential Regulations must reflect the principles:Research methods

1. Types of Research and Research Approaches

The type of research used is normative legal research, namely research conducted or aimed at written regulations and other legal materials which are secondary data found in libraries and other legal journals.[19]

1. Research into legal principles, such as research into positive lawwritten or research into the legal rules that exist in society.
2. Research into legal systematics is carried out by examining the basic understanding of the legal system contained in statutory regulations.
3. Research into legal synchronization can be carried out either vertically (different degrees) or horizontally (same degree/equal).
4. Legal history research is research that is more focusedEmphasize legal developments. Each analysis conducted in this research will utilize comparisons with one or more legal systems.
5. Comparative legal research is research that emphasizes and looks for differences that exist in various legal systems.

Meanwhile, the research approach used is an approach that starts from legal principles, such as research into positive law written or research into the legal rules that exist in society. Namely by examining written legal materials, legal theories, so that answers are obtained regarding what criteria determine the material content of the Presidential Regulation.

Furthermore, according to Peter Mahmud Marzuki, the approach to legal research consists of: the statutory approach (statute approach), case approach (case approach), historical approach (historical approach), comparative approach (comparative approach), and conceptual approach (conceptual approach).Data Types and Data Sources

The data collection tool used in this research is a literature study where data is obtained from:Primary legal materials, namely including laws and regulations relating to the problem being researched, including:

– 1945 Constitution;

– Law Number 12 of 2011 concerning the Formation of Legislation;

– Other laws and/or regulations related to this research.

1. Secondary legal materials, namely materials that provide explanations and are closely related to primary legal materials, can help analyze and understand primary legal materials. These primary legal materials include: books, research results, magazines, legal journals or general journals, articles, lecture notes and papers, and other materials related to the problem being studied.
2. Tertiary legal materials are legal materials that support primary and secondary legal materials, such as the General Dictionary of the Indonesian Language.

1. Data collection technique

In normative legal research, several data collection techniques can be used, including:

1. Collecting information to get an overview or information about similar research and related to the problem being researched.
2. Inventory of materials to obtain methods, techniques, or approaches to problem solving used as secondary data sources.
3. Visits to libraries, both regional libraries, faculty libraries and university libraries to obtain books, previous research results related to research problems, for example research reports, bulletins, brochures, and so on.

                                

1. Data Analysis Techniques

In normative legal research, data management is essentially the activity of systematizing written legal materials. Systematization means classifying these written legal materials to facilitate analysis and construction.Determining the Content of the Presidential Regulations of the Republic of Indonesia

1. Legal Norm System in the Republic of Indonesia

Since the birth of the Republic of Indonesia with the Proclamation of Independence, and the establishment of the 1945 Constitution as the constitution, a system of legal norms for the Republic of Indonesia has also been formed. When compared with the theory of levels of norms (stufentheorie) from Hans Kelsen and the theory of levels of legal norms (die theory vom stufentordnung der rechtsnormen) from Hans Nawiasky, it can be seen that there is a reflection of both normative systems in the legal normative system of the Republic of Indonesia. In the legal normative system of the Republic of Indonesia, the applicable legal norms are in a multi-layered and tiered system, as well as grouped, where a norm is always valid, sourced and based on a higher norm, and so on until the basic norm of the state (staatsfundamentalnorm) the Republic of Indonesia, namely Pancasila.[24]

1. Types and Hierarchy of Legislation of the Republic of Indonesia

Since the birth of the Republic of Indonesia with the proclamation of independence, until the enactment of the constitution of the Republic of Indonesia, the Provisional Constitution of 1950, the 1945 Constitution, and the amendments to the 1945 Constitution, the issue of the hierarchy of legislation has never been expressly regulated in the constitution (UUD) of the Republic of Indonesia. The 1945 Constitution was in effect during the first period (between August 1945 and 1949), then in the second period it was in effect (July 5, 1959 and October 19, 1999), and the third period it was in effect, namely since the first amendment to the 1945 Constitution on October 19, 1999 until now, only stipulates three types of regulations called, Laws, Government Regulations in Lieu of Laws (perpu), and Government Regulations, each of which is formulated in the following articles:Article 5 paragraph (1) of the 1945 Constitution (before amendment):

"The President has the power to form laws with the approval of the House of Representatives" and then changed to: Article 20 of the 1945 Constitution (after changes):

1. The House of Representatives holds the power to form laws.
2. Each draft law is discussed by the House of Representatives and the President to obtain joint approval.
3. If the draft law does not receive mutual agreement, the draft law may not be submitted again in the session of the People's Representative Council at that time.
4. The President passes the draft legislation that has been mutually agreed to become law.
5. In the event that the draft law that has been jointly agreed upon is not ratified by the President within thirty days of the draft law being approved, the draft law shall become law and must be promulgated.
6. Article 22 paragraph (1) of the 1945 Constitution (before and after the amendment):

"In cases of urgent necessity, the President has the right to issue government regulations in lieu of laws."

1. Article 5 paragraph (2) of the 1945 Constitution (before and after the amendment):

"The President establishes government regulations to implement the law properly."

The development of the hierarchy of legal regulations in Indonesia began to be known since the formation of Law Number 1 of 1950, namely the Regulation on the Types and Forms of Regulations issued by the Central Government, which was stipulated on February 2, 1950. In Article 1 and Article 2 of Law No. 1 of 1950, the types of central government regulations are formulated as follows: "Types of Central Government Regulations are: a. Laws and Government Regulations in Lieu of Laws, b. Government Regulations, c. Ministerial Regulations.” The level of power of Central Government regulations is according to the order in Article 1.”

Based on the formulation in Article 1 and Article 2, it can be concluded that ministerial regulations are a type of legislation, which is located below government regulations. The hierarchical position of ministerial regulations which is located below government regulations (and not below Presidential Regulations) can be understood, because the 1950 UUDS adheres to a parliamentary system, so that the President only acts as head of state and does not have the authority to make regulatory decisions.[27]

1. Presidential Decree,
2. Presidential Regulation, namely:
   1. Presidential Regulation issued based on Article 4 paragraph (1) of the 1945 Republic of Indonesia Constitution; and
   2. Presidential Regulation intended to implement Presidential Decrees.
   3. Government Regulation, to implement the Presidential Regulation
   4. Government Decision, to make and formalize appointments; and
   5. Ministerial Regulations and Ministerial Decrees

In 1966, the types and hierarchy of the laws and regulations of the Republic of Indonesia were contained in the Decree of the People's Representative Council of the Republic of Indonesia Number XX/MPRS/1966 concerning the Memorandum of the People's Representative Council on Mutual Cooperation Concerning the Sources of Legal Order of the Republic of Indonesia and the Order of Legislation of the Republic of Indonesia. It is stated that the types and hierarchy of laws and regulations are:The Constitution of the Republic of Indonesia;

1. Decree of the People's Consultative Assembly of the Republic of Indonesia;
2. Law/government regulation in lieu of law;
3. Government regulations;
4. Presidential Decree; and
5. Other implementing regulations such as

- Ministerial regulation

– Ministerial instructions

– And others

Subsequently, in 2000, after the reform era (1998), the People's Consultative Assembly of the Republic of Indonesia (MPR) issued MPR Decree No. III/MPR/2000 concerning Legal Sources and the Order of Legislation. The considerations of MPR Decree No. III/MPR/2000 include the following:

1. that the Unitary State of the Republic of Indonesia, which is based on law, needs to emphasize the sources of law which are guidelines for the preparation of laws and regulations of the Republic of Indonesia.
2. that in order to realize the supremacy of law, there needs to be legal regulations which are statutory regulations that regulate social, national and state life in accordance with their chronological order.
3. that in order to strengthen the realization of regional autonomy, it is necessary to place regional regulations in the order of statutory regulations.
4. that the Source of Legal Order of the Republic of Indonesia and the Order of Legislation of the Republic of Indonesia based on MPRS Decree Number XX/MPRS/1966 gives rise to confusion of understanding, so that it can no longer be used as a basis for compiling legislation.

The problem of the hierarchy of statutory regulations according to MPR Decree No. III/MPR/2000 is formulated as follows:

1. Legal sources are sources that are used as material for compiling statutory regulations.
2. Sources of law consist of written and unwritten sources of law.
3. The source of national basic law is Pancasila as written in the Preamble to the 1945 Constitution, namely Belief in the One Almighty God, Just and Civilized Humanity, the Unity of Indonesia, and Democracy guided by the wisdom of deliberation/representation, and by realizing Social Justice for all Indonesian People, and the body of the 1945 Constitution..

The order of statutory regulations is a guideline for creating legal regulations below it.

1. 1945 Constitution;
2. Decree of the People's Consultative Assembly of the Republic of Indonesia;
3. Constitution;
4. Government Regulation in Lieu of Law (Perpu);
5. Government regulations;
6. Presidential decree;
7. Local regulation.

In accordance with this order of statutory regulations, any lower-level legal regulation must not conflict with a higher-level legal regulation. Following the completion of the fourth amendment to the 1945 Constitution, the House of Representatives submitted a Draft Law on the Procedures for the Formation of Legislation. After going through a deliberation process, the draft law was then passed into Law Number 10 of 2004 concerning the Formation of Legislation. This law also states the types and hierarchy of legislation in Article 7, which is formulated as follows:

1. The 1945 Constitution of the Republic of Indonesia;
2. Law/Government Regulation in Lieu of Law;
3. Government regulations;
4. Presidential decree;
5. Local regulation.

Types of Legislation other than those referred to in paragraph (1) are recognized and have binding legal force as long as they are ordered by higher Legislation. The legal force of Legislation is in accordance with the hierarchy above. Furthermore, as a form of implementation of the order of Article 22A of the 1945 Constitution which states that the procedures for the formation of laws are further regulated by law, Law Number 12 of 2011 (Law No. 12 of 2011) has been stipulated as a replacement for Law Number 10 of 2004 concerning the Formation of Legislation. Article 7 Paragraph (1) and paragraph (2) of Law No. 12 of 2011, confirms that the hierarchy of Legislation consists of:

1. The 1945 Constitution of the Republic of Indonesia;
2. Decree of the People's Consultative Assembly;
3. Law/Government Regulation in Lieu of Law;
4. Government regulations;
5. Presidential decree;
6. Provincial Regional Regulations; and
7. Regency/City Regional Regulations.

The legal force of statutory regulations is in accordance with the hierarchy as referred to above. Furthermore, Article 102 of Law No. 12 of 2011 states that: "At the time this Law comes into force, Law Number 10 of 2004 concerning the Formation of Legislation (State Gazette of the Republic of Indonesia of 2004 Number 53, Supplement to the State Gazette of the Republic of Indonesia Number 4389), is revoked and declared invalid.". Therefore, all the formation of the material content of statutory regulations, including Presidential Regulations, must follow the procedures, processes, hierarchies and principles contained in Law No. 12 of 2011 concerning the Formation of Statutory Regulations, thus there is no longer a need for Presidential Decrees, Presidential Instructions, and Government Regulations regarding further regulation of the process of forming Statutory Regulations.

1. Principles for the Formation of Legislation

The principles for the formation of legislation in Indonesia have been formulated in Article 5 of Law No. 12 of 2011 concerning the Formation of Legislation, which states that "In forming Legislation, it must be done based on the principles of forming good Legislation, which include:

1. clarity of purpose;
2. appropriate institution or official forming it;
3. conformity between type, hierarchy, and content material;
4. can be implemented;
5. usability and effectiveness;
6. clarity of formulation; and

Furthermore, in more detail, A. Hamid S Attamimi, as quoted by Yuliandri, explained that in the formation of legislation, apart from being guided by the principles of forming good legislation (beginsselen van behoorlijke wetgeving), also needs to be based on general legal principles (algemene rechtsbeginselen), which consists of the principles of a state based on law (state), a government based on a constitutional system, and a state based on popular sovereignty. Furthermore, A. Hamid S Attamimi also introduced that in the formation of legislation, there are at least several points of view that can be developed in order to understand the principles of forming good legislation correctly, namely:[30] firstly,, legal basis. Every legal product must have a legal basis (legal horse). This legal basis is very important in the creation of laws and regulations (including Presidential Regulations), because it will show:

1. The requirement for the authorisation of legal products. Every legal product must be created by an authorized official. Otherwise, the legal product is null and void (van rechtswegenietig) or is considered to have never existed and all consequences are null and void by law.
2. The requirement for the form or type of legal products to be in accordance with the regulated material, especially if it is ordered by legislation of a higher or equivalent level. Inconsistency in form or type can be a reason for cancellation or can be cancelled (vernietigbaar) the legal product.
3. The requirement to follow certain procedures, if certain required procedures are not followed, then the legal products do not have binding legal force and can be cancelled by law.
4. The requirement does not conflict with higher level laws and regulations.
5. Legal products made for the public can be accepted by society naturally and even spontaneously.

Second, Sociological basis. A sociological basis means reflecting the realities of life in society. In an industrial society, the law must be in accordance with the realities that exist in that industrial society. These realities can be needs or demands or problems faced, such as labor issues, cleanliness, order, and so on. It is further explained that: "With a sociological basis, it is hoped that the laws and regulations created will be accepted by society naturally, even spontaneously. Laws and regulations that are accepted naturally will have effective force and will not require much institutional direction to implement them."

Bagir Manan also stated that: "... something that must be remembered is that the reality that exists in society as a sociological basis must also include the tendencies and hopes of society. Without including the factors of tendencies and hopes, then the legislation only records the moment (moment of taking(This situation will paralyze the role of law. Law will lag behind the dynamics of society. Even legislation will become conservative, as it seems to reinforce existing realities. This contradicts the other aspect of legislation, which is expected to guide societal development.)

Third, philosophical basis. Regarding this basis, Bagir Manan explains: "The philosophical basis is related to "legal system"where all people have it, namely what they expect from the law, for example to guarantee justice, order, welfare and so on. The ideal of law or legal system These values ​​grow from their value systems regarding good and bad, views on individual and social relationships, material things, the status of women, and so on. All of these are philosophical, meaning they involve views on the nature of things. Law is expected to reflect these value systems, both as a means of protecting values ​​and as a means of realizing them in societal behavior. Every law or regulation must be able to capture this every time it forms a law or regulation. However, sometimes, philosophical theories and official doctrines (for example, Pancasila) are used.

Based on the discussion above, in determining the material content of the Presidential Regulation in Indonesia, in addition to having to include the principles for the formation of legislation contained in Law No. 12 of 2011, it must also pay attention to the principles for the formation of good legislation as stated by the experts above, namely based on philosophical foundations, legal foundations and sociological foundations.

1. Material Content of Legislation

After the amendment to the 1945 Constitution, regarding the content of statutory regulations[32]

First, provisions in the body of the 1945 Constitution. If we look at the body of the 1945 Constitution, there are currently 43 (forty-three) things that are expressly ordered to be regulated in legislation. These 43 (forty-three) things can be divided into three groups that have similarities, and three other groups, although the division cannot be clearly distinguished, because there is a relationship between one and another. The division is as follows:

1. Group of state institutions: Article 2 paragraph (1), Article 6 paragraph (2), Article 6A paragraph (5), Article 19 paragraph (2), Article 20A paragraph (4), Article 22B, Article 22C paragraph (4), Article 22D paragraph (4), Article 23G paragraph (2), Article 24 paragraph (3), Article 24A paragraph (5), Article 24B paragraph (4), Article 24C paragraph (6), and Article 25.
2. Group for determining state organizations and organs: Article 16, Article 17 paragraph (4), Article 18 paragraph (1), Article 18 paragraph (7), Article 18A paragraph (1), Article 23D, Article 23 paragraph (4), and Article 23 paragraph (5).
3. Group of human rights: Article 12, Article 15, Article 18A paragraph (2), Article 18B paragraph (1) and paragraph (2), Article 22E paragraph (6), Article 23 paragraph (1), Article 23A, Article 23B, Article 23D, Article 23E paragraph (3), Article 26 paragraph and paragraph (2), Article 28, Article 28I paragraph (5), Article 30 paragraph (5), Article 31 paragraph (1), Article 33 paragraph (5), and Article 34 paragraph (4).
4. State territorial regulation group: Article 25A.
5. State attribute regulation group: Article 36C.
6. Other groups: Article 11 paragraph (3) and Article 22A.

Second, based on the state's insight based on law (constitutional state). In Article 1 paragraph (3) of the 1945 Constitution, it is stated that the Republic of Indonesia is a state based on law (constitutional state). This legal-based state perspective has several consequences in the field of legislation, because it concerns the issue of the division of state power and the protection of human (basic) rights. In terms of a state based on law, the Republic of Indonesia is included in a state based on material/social law, this can be found in the preamble to the 1945 Constitution, paragraph 4, which states:

“… to form an Indonesian government that protects all the Indonesian people and all of Indonesia's native land and to advance general welfare, improve the life of the nation, and participate in implementing world order based on independence, eternal peace and social justice, …. etc."

Third, based on the insight of government based on the constitutional system. This is a pair of insight into the state based on law (constitutional state). In this constitutionally based view of government, the government's authority and power, along with all its actions in carrying out its duties, are limited by the constitution (the 1945 Constitution). Because the Republic of Indonesia adheres to a constitutionally based view of government, the legislative power in the Republic of Indonesia is bound by the 1945 Constitution as the basic law of the state. Furthermore, aThe principles that must be contained in the material content of statutory regulations, including Presidential Regulations in the Republic of Indonesia, are formulated in Article 6 of Law No. 12 of 2011, as follows:

1. protection;
2. humanity;
3. nationality;
4. family;
5. archipelago;
6. Unity in Diversity;
7. justice;
8. equality before the law and government;
9. order and legal certainty; and/or
10. balance, harmony, and alignment.

In addition to reflecting the principles as referred to above, certain statutory regulations may contain other principles in accordance with the legal field of the relevant statutory regulations.Contents and Explanation of the Material of the Presidential Regulation According to Article 13 of Law Number 12 of 2011 Concerning the Formation of Legislation

Article 13 of Law No. 12 of 2011 concerning the contents of the Presidential Regulation states that:"The contents of the Presidential Regulation contain material ordered by Law-Law, the minister to implement Government Regulations, or the minister to implement the implementation of government powers", and in the explanation of Article 13 of Law No. 12 of 2011 it is explained that:"The Presidential Regulation is formed to implement further regulations on orders Undang-ULaws or Government Regulations expressly or implicitly order their formation."

In the explanation of Article 13 of Law No. 12 of 2011 above, it is stated that a Presidential Regulation can be formed to implement further regulations based on the orders of a Law or Government Regulation, whether expressly or not expressly ordered to be formed. A Presidential Regulation is a regulation made by the President in carrying out the governmental powers of the Republic of Indonesia as an attribution of Article 4 Paragraph (1) of the 1945 Constitution. A Presidential Regulation is formed to implement further regulations based on the orders of a Law or government regulation, whether expressly or not expressly ordered to be formed.[35]

Bagir Manan added that understanding the Presidential Regulation (previously called the Presidential Decree) in the 1945 Constitution system can be viewed from two aspects:In terms of authority:

Viewed from the authority aspect, Presidential Regulations (Keppres) can be distinguished as Presidential Regulations as the implementation of the President's constitutional authority. Both as Head of State and as Head of Government, the President has the authority to issue decisions (regulations). This is in accordance with the general principle that one of the characteristics inherent in an official or position is the authority to make decisions. This authority is an attributive authority, in addition to being based on constitutional authority (Article 4 paragraph (1) of the 1945 Constitution), Presidential Regulations can also be issued as delegated regulations (delegated legislation), as a delegated regulation. Presidential Regulations are established to implement the mandate of the 1945 Constitution, MPR Decrees, Laws/Government Regulations, or Government Regulations in Lieu of Laws. Therefore, as a delegated regulation, Presidential Regulations have a broader scope than Government Regulations, which only implement laws.

1. From the content material:

In terms of the content of the Presidential Regulation (Keppres) it can be divided into Presidential Regulations which are regulatory in nature (Grant) and Presidential Decrees which are in the form of provisions or determinations (beschikking). The Presidential Regulation that regulates this is a statutory regulation.

The contents of the Presidential Regulation (in the form of statutory regulations) as a manifestation of the President's original powers, especially include all the President's powers to carry out government (state administration), both of a legal nature. instrumental or those that provide "guarantee" to the people. Meanwhile, the content of the Presidential Regulation originating from the delegation will consist of the delegated content.[38]

From the discussion above, it is very clear that the contents of the Presidential Regulation must be formed to implement regulationsfurther commands Undang-ULaw or Government Regulation. The explanation of Article 13 of Law No. 12 of 2011 which explains that: "Presidential Regulations are formed to implement further regulations ordered by Laws or Government Regulations, whether expressly or not expressly ordered to be formed" must be understood in the sense of being ordered by higher Legislation (including the 1945 Constitution).

1. Determining the Content of Presidential Regulations in Implementing the Execution of Government Powers
2. President of the Republic of Indonesia, the Executor of Governmental and Legislative Powers

As the organizer of government, the President can form the necessary laws and regulations, because the President is the holder of regulatory power in Indonesia. This regulatory function is seen in the 1945 Constitution in terms of the formation of Laws together with the DPR in accordance with Article 20 paragraph (2), paragraph (3), paragraph (4), the formation of Government Regulations based on Article 5 paragraph (2), the formation of Government Regulations in lieu of Laws based on Article 22 paragraph (1), and also the formation of Presidential Regulations (previously called Presidential Decrees) which are laws and regulations originating from the attribution of the provisions of Article 4 paragraph (1) of the 1945 Constitution.[40]“…to form an Indonesian government that protects all the Indonesian people and all of Indonesia's native land and to advance general welfare, improve the life of the nation, and participate in implementing world order based on freedom, eternal peace and social justice…. etc."

The fourth paragraph of the preamble to the 1945 Constitution describes the vision of the Indonesian nation regarding the state structure that will be formed and implemented in order to institutionalize the nation's overall ideals of independence, unity, sovereignty, justice and prosperity within the framework of the Unitary State of Indonesia. This fourth paragraph clearly determines the goals of the state and the foundations of the Indonesian state as a state that adheres to the principles of constitutional democracy. The Indonesian state is therefore intended to (1) protect all the Indonesian people and all of Indonesia's territory; (2) advance general welfare; (3) improve the life of the nation; and (4) realize world order based on freedom, eternal peace and social justice.[42]

Jimly Asshiddiqie added that in relation to what was described above, it can be stated that there are nine basic principles that underlie the formulation of the Indonesian state administration system in the formulation of laws and regulations (including Presidential Regulations) in the future. These nine basic principles are: (1) Belief in the One and Only God, (2) The Ideal of a Legal State or Nomocracy, (3) The Concept of People's Sovereignty or Democracy, (4) Direct Democracy and Representative Democracy, (5) Separation of Powers and the Principle of checks and balances, (6) Presidential System of Government, (7) Principles of Unity and Diversity in a Unitary State, (8) Economic Democracy and Capital Market Economy, and (9) Ideals of Civil Society.The President holds supreme power over the army, navy and air force. (Article 10)

1. The President, with the approval of the House of Representatives, can declare war, make peace, and conclude treaties with other countries. (Article 11)
2. The President declared a state of danger. The conditions and consequences of a state of danger are determined by law. (Article 12)
3. The President appoints ambassadors and consuls. In appointing ambassadors, the President takes into account the advice of the House of Representatives. The President accepts the appointment of ambassadors from other countries by taking into account the advice of the House of Representatives. (Article 13 Paragraphs (1-3)
4. The President grants pardon and rehabilitation by taking into account the considerations of the Supreme Court. The President grants amnesty and abolition by taking into account the considerations of the House of Representatives [Article 14 Paragraphs (1) and (2)]
5. The President may grant titles, decorations, and other honors as regulated by law. (Article 15)
6. The President of the Republic of Indonesia holds the power of government according to the Constitution. (Article 4 Paragraph (1)
7. The President has the right to submit draft laws to the House of Representatives. (Article 5)
8. In cases of urgent necessity, the President has the right to issue government regulations in lieu of laws." [Article 22 Paragraph (1)]
9. The President has the right to submit draft laws to the House of Representatives." [Article 20 Paragraph (2)]

Furthermore, CST Kansil, put forward the following regarding the governmental powers of the Republic of Indonesia based on the 1945 Constitution:The President of the Republic of Indonesia holds the power of government according to the constitution.

1. The President is the highest executor of government power.
2. In carrying out his duties, the President is assisted by one Vice President.
3. The President and Vice President hold office for five years, and may thereafter be re-elected to the same office, for only one further term.
4. The President is assisted by Ministers of State. These ministers are appointed and dismissed by the President. Each minister oversees specific government affairs.

1. Purpose/Function of the Presidential Regulation of the Republic of Indonesia

Besides the Presidential Regulation functioning as a reinforcement of the Presidential system and as a tool for implementing the administration of government power in Indonesia, the Presidential Regulation also functions as a form of expressing the decisions/decrees taken by the President. This type of decision has two main characteristics, namely decisions that are regulatory in nature (Grant) from decisions of an administrative nature (beschikking). All high-ranking government officials who hold political positions are authorized to issue administrative decisions, for example to appoint and dismiss officials, form and dissolve committees, and so on. Legally, all types of decisions are considered important in the development of national law. However, the definition of legislation in the narrow sense needs to be limited or at least clearly differentiated because the regulatory element (Grant) public interest and concerns legal relations or relations of rights and obligations between fellow citizens and between citizens and the state and government. Elements of regulation (Grant) This is what should be used as a criterion for legal material to be regulated in the form of statutory regulations according to its hierarchical level.[46] However, after the amendment to the 1945 Constitution, Jimly Asshiddiqie was of the opinion that as a consequence the power to form laws had shifted from the President to the DPR based on the provisions of Article 20 paragraph (1). juncto Article 5 paragraph (1) of the 1945 Constitution, the position of the DPR as a legislative institution is increasingly emphasized. Therefore, all regulations issued by the President must refer to the Law and the 1945 Constitution, and can no longer be independent like the Presidential Decrees of the past. The only regulation issued by the President/Government that can be independent in the sense of not implementing the orders of the Law is in the form of a Government Regulation in Lieu of Law (perpu) which can be valid for a maximum of 1 year. The Perpu must then be submitted for approval by the DPR. If the DPR refuses to approve the Perpu, then according to the provisions of Article 22 paragraph (3) of the 1945 Constitution the President must revoke it again by means of an act of revocation.Organizing general arrangements in the framework of implementing government power

This function is an attribution authority from the 1945 Constitution to the President, and in accordance with the opinion of G. Jellinek as quoted by Maria Farida Indrati S, explains that within the power of government also includes the function of regulating and deciding. This function can be implemented by forming a statutory regulation, in this case the formation of a Presidential Regulation (either regulatory or stipulating). The Presidential Regulation (Decree) in implementing this first function is an independent Presidential Decree, namely a Presidential Decree which is the "remainder" of certain statutory regulations with certain scope limits, namely Laws, Government Regulations in lieu of Laws, Government Regulations, and Presidential Decrees which are delegated arrangements. Carrying out further regulation of orders in Laws and Government Regulations which expressly state it

This second function is often formulated in terms of more concrete regulations regarding a problem, one example of which is the provisions in Article 4 (paragraph (3) of Government Regulation Number 45 of 1998 concerning Amendments to Government Regulation Number 20 of 1997 concerning Regional Retributions. In Article 4 paragraph (3) it is formulated that: "In addition to the types of levies as referred to in paragraph (2), in the Special Capital Region of Jakarta, in an effort to overcome traffic congestion, Road Infrastructure Use Permit Levies may also be implemented, the implementation and certainty of the objects of which are further determined in a Presidential Decree."Carrying out further regulation of orders in Laws and Government Regulations even though they do not expressly state it

These two functions (b and c) are the functions of the Presidential Regulation, which is a delegated function of the Government Regulation and also the Law it implements. The function of the Presidential Regulation here is a function based on stufentheorie, where a lower regulation always applies, is sourced from, and is based on a higher regulation. The Presidential Regulation here is a delegated/delegated regulation whose authority lies/is regulated in Laws and Government Regulations, so the Presidential Regulation here only regulates further, does not form a new policy.[51]

The Minister of Law and Human Rights (at that time) Patrialis Akbar added that in the DPR RI Working Meeting with the Minister of Law and Human Rights of the Republic of Indonesia on March 2, 2011, he said that: "The position of the Presidential Regulation, which in principle not only Grant but also beschikking regarding certain matters in carrying out its functions, duties and authorities. This Presidential Regulation is enforced to, among other things, not only carry out the commands of the Law but also to carry out the duties of the state government's power."The Principle of Freedom of Action (freies ermessen) Government

In relation to the aims and ideals of the Indonesian state in the preamble to the 1945 Constitution as outlined above, in a material legal state (welfare state) or welfare state, the government's task is no longer to be a night watchman (rigidly enforcing the law) and cannot be passive but must actively participate in community activities so that the welfare of all people is guaranteed. Thus, the government must provide protection for its citizens not only in the political field but also in the socio-economic field and so on. Therefore, the government's duties are expanded with the aim of guaranteeing the public interest so that the field of duties includes various aspects of life that were originally community such as public health, education, housing, land distribution and so on. So in welfare state government handed over bestuurzorg namely the implementation of general welfare.[54] In a state based on material law, the main objective is benefit (purposeful) law for the sake of achieving social welfare. For this reason, the idea of ​​a material state of law gives the government freedom of action. In contrast to a formal state of law, legal certainty (rechmatig) is the primary goal of the state. Although the government is authorized to act on its own initiative for the benefit of the law, this does not mean that the goal of legal certainty is set aside. Ideally, it can be said that these two principles, namely the principle of legal certainty and the principle of the government's freedom to act on its own initiative, must be in line and complement each other to achieve the general welfare as the goal of a state based on law.[56]

Furthermore, Sjachran Basah, as quoted by Ridwan HR, put forward the following elements: freies ermessen in a state of law, namely:Intended to carry out public service tasks;

1. It is an active attitude of state administration;
2. Attitudes not permitted by law;
3. This action was taken on one's own initiative;
4. This attitude of action is intended to resolve important problems that arise suddenly;
5. This attitude of action can be accounted for both morally to God Almighty and legally.

Next, Muchsan, as quoted by Ridwan HR, said that in the practice of governance, freies ermessen carried out by government officials or state administration in the following cases:There are no laws and regulations governing the settlement of disputes. in concrete terms regarding a particular problem, even though the problem demands an immediate solution. For example, when facing a natural disaster or an infectious disease outbreak, government officials must immediately take action that benefits both the state and the people, actions that arise solely on their own initiative.

1. The laws and regulations that form the basis for government officials' actions grant complete freedom. For example, in granting permits under Article 1 of the HO, each permit is granted freely, depending on the circumstances and conditions of each region.
2. Legislative delegation means that government officials are given the authority to regulate themselves, which is actually the authority of a higher-level official. For example, in exploring regional financial resources, local governments are free to manage these as long as the resources are legitimate.

From the discussion above and the understanding of discretion put forward by Thomas J. Aron, it can be understood that the principle of discretion (freies ermessen) public officials (President) must have their authority granted by law or statute. For example, the Preamble to the 1945 Constitution states that: "….For form a government deny Indonesia which protects all the Indonesian people and all of Indonesia's homeland and to advance general welfare, to enlighten the life of the nation, and to participate in implementing world order based on independence, eternal peace and social justice, …. and so on." And/or Article 4 (1) of the 1945 Constitution which states that: "The President of the Republic of Indonesia holds the power of government according to the Constitution."

1. Types of Discretion (freies ermessen)

In state administrative law, two types of discretion are recognized (freies ermessen) namely free discretion and bound discretion. In free discretion, the law only sets boundaries, and the state administration is free to make any decision as long as it does not exceed/violate the boundaries of the law. In bound discretion, the law sets several alternatives, and the state administration is free to choose one of the alternatives.[60] First, Sojective beoordelingsruimte (subjective discretion) parallels the concept of free discretion. It stems from the subjective discretion granted by lawmakers to government officials or agencies to take public legal action on their own initiative. Public legal action taken by state administrative officials can be regulatory, stipulating, or concrete, positive action to resolve the governance issues they face.

Second, Objektieve beoordelingsruimte (objective consideration space) is parallel to the concept of bound discretion. It starts from the granting of objective consideration space by lawmakers to officials or state administrative bodies to carry out public legal actions according to the situation, conditions, and object of the problem based on certain criteria.

1. Boundaries Free Ermessen and its accountability

Concerns about the arbitrariness of the ruler (President) as a consequence of freedom of action (freies ermessen) government. So specifically, in state administrative law, the solution that can be put forward to overcome the dilemma between limiting the power of the government (President) and freedom of action freies ermessen is the teaching regarding the general principles of good governance. The principles of good governance are the boundaries that state administrative officials must observe when making policies. According to Hotma P. Sibuea, policy regulations cannot be tested materially like statutory regulations. However, this does not mean that the existence of policy regulations cannot be questioned before the state administrative court. For parties who feel disadvantaged by a policy, expressed by state administrative officials in the form of policy regulations such as Presidential Regulations, the state administrative court judge will be guided by the general principles of good governance.[62]

1. Use freies ermessen must not conflict with the applicable legal system (positive legal rules).
2. Use freies ermessen only intended for public interest.

Freies ermessen given only to the government in the narrow sense or state administration to carry out both ordinary and legal actions, and when freies ermessen This is manifested in a written legal instrument (Presidential Regulation for example) so it becomes a policy regulation. As something that is born from  freies ermessen and is only given to the government, then the authority to make policy regulations is inherent to the government (inherent aan het bustuur).[64] By using more explicit language, the contents of the Presidential Regulation in implementing the implementation of governmental powers must be in accordance with and in line with the hierarchy and principles of the laws and regulations in force in the Republic of Indonesia and the ideals of the Indonesian nation as stated in the Preamble to the 1945 Constitution (including Pancasila).

1. Policy Regulations (Beleidsregel) President/Government

Term (policy) is often used interchangeably with other terms such as goals (goals) programs, decisions, laws, provisions, proposals and major plans. For policy makers (policy makers) and its counterparts, these terms will not cause any problems because they use the same reference. According to the United Nations, policy is defined as a guide to action. The guideline may be very simple or complex, general or specific, broad or narrow, vague or clear, loose or detailed, qualitative or quantitative, public or private. Policy in this sense may be a declaration of a basis for action, a particular course of action, a program of specific activities, or a plan.[66] Satjipto Raharjo added that every policy to be implemented must go through some form of legislation. Without such procedures, the legitimacy of government and state actions is questionable. This development has fueled discussion about the possibilities that could arise if legislation is used as an instrument to implement government policy.[68]

The President, as head of state, does not create policy regulations. However, the President's authority to create policy regulations lies within his or her position as a state administrative body or official, not as head of state. State administrative officials or bodies are vested with the authority to make various decisions. In addition to statutory provisions, the exercise of this authority is also based on freedom of action (freise ermeessen).[70]

Therefore, Jimly Asshiddiqie is of the opinion that in order to regulate the use of terms, the Presidential Decree should be limited to administrative determinations only (beschikking), so the difference is clear. Presidential Decrees can be made the object of state administrative courts, while Presidential Regulations can be made the object of state administrative courts. judicial reviews by the Supreme Court. Thus, there is no longer any need to understand the Presidential Decree as being regulatory in nature (Grant). Presidential Regulations can also be distinguished from Government Regulations. Government Regulations are established to implement the Law, while Presidential Regulations are established within the framework of the President's authority to determine policy rules or rules in accordance with the principles freies ermessen which provides room for the executive government to regulate and determine its own procedures for implementing the policies it makes.General Principles of Good Government

Muchsan, as quoted by SF. Marbun and Moh. Mahfud MD, stated that the history of the emergence of the term general principles of good governance began in 1950 with the formation of a committee. de monchy in the Netherlands, the committee has prepared a report on the general principles of good governance (algemene beginsselen van behoorlijk bestuur or the general principles of good administration). Where this report is intended to avoid possible deviations by the state administration from the applicable regulations.[73]

1. The principle of legal certainty (principle of legal security);
2. The principle of balance (principle of proportionality);
3. The principle of equality in making pangreh decisions (principle of equality);
4. The principle of acting carefully (principle of carefulness);
5. Motivational principles for every decision pangreh (principle of motivation);
6. The principle of not mixing up authority (principle of non-abuse of competence);
7. The principle of fair play (principle of fair play);
8. The principle of justice or fairness (principle of reasonableness or prohibition of arbitrariness);
9. The principle of achieving reasonable expectations (principle of meeting raised expectations);
10. The principle of eliminating the consequences of an invalid decision (principle of undoing the consequences of an annulled decision);
11. The principle of protection of personal views (ways) of life (principle of protecting the personal way of life);
12. Principle of wisdom (wisdom);
13. The principle of implementing public interests (principle of public service).

In its development and along with the passage of time and changes in Indonesian politics, the principles of good governance were then included in the Law of the Republic of Indonesia, namely Law Number 28 of 1999 (Law No. 28 of 1999) concerning the Governance of a Clean State Free from Corruption, Collusion, and Nepotism (KKN). Article 3 of Law No. 28 of 1999 mentions several general principles of state administration, namely:

1. Principle of Legal Certainty;
2. Principles of Orderly Implementation deny;
3. Principle of Public Interest;
4. Principle of Openness
5. Principle of Proportionality;
6. Principles of Professionalism
7. Principle of Accountability

In relation to the importance of the general principles of good governance in the administration of government in Indonesia, it is appropriate that these general principles of good governance become things that must be considered in the preparation of the contents of the Presidential Regulation in order to achieve good governance in Indonesia. In addition to the principles contained in Article 3 of Law No. 28 of 1999 concerning the Implementation of a Clean and Corruption-Free State Free from Corruption, Collusion, and Nepotism (KKN) mentioned above, the principles that need to be considered in determining the contents of the Presidential Regulation to implement the administration of government power that favors public servants are the principles contained in Article 4 of Law No. 25 of 2009 (Law No. 25 of 2009) concerning Public Services. In Article 4 of Law No. 25 of 2009 it is stated that, "the provision of public services is based on:

1. Public interest;
2. Legal certainty;
3. Equal rights;
4. Balance of rights and obligations;
5. Professionalism;
6. Participle;
7. Equal treatment/non-discrimination;
8. Openness;
9. Accountability;
10. Special facilities and treatment for vulnerable groups;
11. Punctuality; and
12. Speed, convenience, and affordability.

CONCLUSION AND SUGGESTIONS

1. Conclusion

Based on the results of previous research and discussion, the author concludes that:

1. The content of the Presidential Regulation is determined and measured based on: Pancasila and 1945 Constitution as a "guiding star" in filling the contents of the Presidential Regulation. (philosophical basis of the Presidential Regulation). The formation of the contents of the Presidential Regulation must follow the procedures, processes, hierarchy and principles contained in Law No. 12 of 2011. The contents of the Presidential Regulation formed to implement further regulations and orders Undang-Undangand or Government Regulation
2. The contents of the Presidential Regulation in implementing the implementation of government power in Indonesia are determined: That the contents of the Presidential Regulation are to realize rechmatig and purposeful hukum. Presidential Regulation to create regulatory policy regulations (Grant). The Presidential Regulation is established to determine policy rules or rules in accordance with the principles freies ermessen in order to implement the Law (UU) and or Government Regulation (PP). As an attributive authority (constitutional Article 4 paragraph (1) of the 1945 Constitution), the Presidential Regulation is stipulated to implement the orders of the 1945 Constitution, MPR Decrees, Laws, PPs and or Perpu, so the Presidential Regulation has a broader scope than the Government Regulation which is only to implement the Law. The contents of the Presidential Regulation include all the powers of the President to run the government (state administration), both those of a instrumental or those that provide "guarantee" to the people (legal basis of the Presidential Decree). Freies ermessen used in order to realize the welfare of the people as mandated by the 1945 Constitution. In addition to the principles of good governance, the principles that need to be considered in determining the content of the Presidential Regulation to implement the implementation of government power that favors public services are the principles of Public Services (sociological basis of the Presidential Regulation).

1. Saran

The suggestions that the author conveys in the results of writing this thesis are as follows:

1. Suggesting to the President of the Republic of Indonesia in determining the content of the Presidential Regulation, in addition to the principles contained in Article 3 of Law No. 28 of 1999 concerning the Implementation of a Clean and Corruption-Free State, Collusion and Nepotism (KKN), the principles that also need to be considered are the principles contained in Article 4 of Law No. 25 of 2009 concerning Public Services, so that the Presidential Regulation made is in favor of public servants.
2. Suggest to the President of the Republic of Indonesia and his staff that in determining the content of the Presidential Regulation, there must be a clear and firm distinction between what is a legislative product and what is a regulatory product, and what is an administrative determination product in the form of a Presidential Decree which is of a legal nature. beschikking, and where are the regulatory policies that are regulatory (Grant). 
3. It is recommended to the legislative body (DPR) that the contents of the Presidential Regulation be regulated in a limited manner in the upcoming Law on Procedures for the Formation of Legislation. So that the policy regulations that are regulatory in nature (Grant) this is not abused by the President.

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