LEGALITY OF THE FORMATION OF PRESIDENTIAL REGULATIONS BY THE PRESIDENT AS REVIEWED FROM THE SOURCE OF AUTHORITY (ATTRIBUTION, MANDATE, DELEGATION)

LEGALITY OF THE FORMATION OF PRESIDENTIAL REGULATIONS BY THE PRESIDENT AS REVIEWED FROM THE SOURCE OF AUTHORITY (ATTRIBUTION, MANDATE, DELEGATION)*)

By :

Muhammad Irham

Abstract

In UU no. 12 Tin 2011 Taround Pformation Pregularity Plaw–Uinvitation PArticle 13 concerning the content of the Presidential Regulation states, "The contents of the Presidential Regulation contain material ordered by law, material to implement the Government Regulation, or material to implement the implementation of government power."And in the explanation of Article 13 of Law No. 12 of 2011 it is explained that; "Presidential Regulations are formed to implement further regulations that are ordered by laws or Government Regulations, whether expressly or not, to be formed."The type of research used is normative legal research, namely research that is carried out or aimed at written regulations and other legal materials that are secondary data in libraries and other legal journals.. Research conclusion. 1. The principle of legality in the field of state administrative law has the meaning "Dat het bestuur aan de wet is onderworpen" (that the government is subject to the law) or "Het legaliteitsbeginsel houdt in dat alle (algemene) de burgers bindende bepalingen op de wet moeten berusten" (the principle of legality determines that all provisions binding on citizens must be based on law). This principle of legality is a principle of the rule of law and democracy which is often formulated in a unique way in the phrase "Het beginsel van wetmatigheid van bestuur. 2. Article 4 Paragraph (1) of the 1945 Constitution states; "The President of the Republic of Indonesia holds the power of government according to the Constitution", this statement contains the meaning that the President is the holder of government power in the Republic of Indonesia and also has a legislative function. 3. Presidential Regulations are regulations 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. Presidential Regulations are formed to implement further regulations on the orders of the Law or government regulations, whether expressly or not expressly ordered for their formation.

Keywords: Principle of legality, Presidential Regulation

1. widear Back

In modern states, fundamental interactions between state institutions, including those involved in the legislative function, are regulated by the constitution. The pattern of regulation of the legislative function is determined by the relationship between the executive and legislative branches, and this relationship is largely determined by the nature of the governmental system.[2]

Article 1 paragraph (1) The 1945 Constitution of the Republic of Indonesia (1945 Constitution) which confirms that;"The Republic of Indonesia is a unitary state in the form of a republic."Article 1 paragraph (2) which states that;"Sovereignty is in the hands of the people and is implemented according to the Constitution", mshows that the Indonesian state adheres to the principles of a democratic system so that all the aspirations of the people can be taken to become joint decisions. Furthermore, Article 1 paragraph (3) emphasizes that;"The Republic of Indonesia is a state of law."

As a nation that desires to remain united, we have established a national foundation and ideology, namely Pancasila, chosen as the unifying and binding basis, which then gave rise to guiding principles in social, political, and legal life. Furthermore, the principles and mechanisms of state administration to guarantee democracy are regulated in the 1945 Constitution, which establishes guidelines for maintaining the integrity of this nation. Thus, the demands for integration and democracy, as proposed by Geertz, are stipulated in Pancasila and the 1945 Constitution.[4]

From this understanding, the concept of a state based on law and democracy was born. In order to maintain the unity of the Republic of Indonesia (maintained integration), this requires a division of power between the legislature, which represents the interests and aspirations of the people, and the executive, as the implementing agency for those interests and aspirations. This division of power is further regulated in the Constitution and its subordinate laws., so that the power of these two institutions can be limited.

In a modern democratic system and state based on the rule of 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.[6]

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 the order of the President.ndang-Ulaw (law) or Government regulations (PP), then the Presidential Regulation (Prepres) 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 authority (legislative delegation of rule-making power) from the legislators-the law to the law implementing agency-law or to the government.[8]

Furthermore, as a form of implementation of the order of Article 22 A 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) concerning the Formation of Legislation has been established, replacing Law Number 10 of 2004. In UU no. 12 Tin 2011 Taround Pformation Pregularity Plaw–Uinvitation PArticle 13 concerning the content of the Presidential Regulation states,"The contents of the Presidential Regulation contain material ordered by law, material to implement the Government Regulation, or material to implement the implementation of government power."And in the explanation of Article 13 of Law No. 12 of 2011 it is explained that; "Presidential Regulations are formed to implement further regulations that are ordered by laws or Government Regulations, whether expressly or not, to be formed."

1. Research methods
2. 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 of a secondary data nature that exist in libraries and other legal journals.[10]

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. Furthermore, according to Peter Mahmud Marzuki, the approach in 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.Results and Discussion

1. Principles of Legality and Government Authority
   1. Principle of Legality

The principle of legality is one of the main principles that serves as the basis for every rule of law, especially those based on the continental system. Initially, the principle of legality was recognized in the collection of taxes by the state. In England, the expression "No taxation without representation”, no tax without (the approval of) parliament, or in America there is an expression “Taxation without representation is robbery"Taxation without parliamentary approval is robbery. This means that tax collection may only be carried out after there is a law regulating the collection and determination of taxes. This principle is also called the power of law (de heerschappij van de wet).[15]

The principle of legality is closely related to the concept of the rule of law and democracy. Democracy demands that every form of law and legal decision be approved by the people's representatives and that the aspirations and interests of the people be taken into account as much as possible. As J.J. Rouseau wrote, in his book entitled "Du Contract Social" says; "humans are born free and equal in rights-their rights, while the law is an expression of the general will (of the people)”. In line with this, according to Sjachran Basah, as quoted by Ridwan, HR. The principle of legality means an effort to realize a harmonious, integral duet between the concept of legal sovereignty and the concept of popular sovereignty based on the principle of monoduality as pillars, which are essentially constitutive.Presidential/Government Authority

The principle of legality is the foundation of every state and governmental activity. In other words, every state and governmental activity must have legitimacy, namely, the authority granted by law. Thus, the substance of the principle of legality is authority, namely "Het vermogen tot het verrichten van bepaalde rechtshandelingen", namely the ability to carry out certain legal actions. Regarding this authority, HD Stout said that "Bevoegdheid is een begrip uit het bestuurlijke organisatierecht, wat kan worden omschreven als het geheel van regels dat betrekking heft op de verkrijging en uitoefening van bestuursrechtelijke bevoegdheden door publiekarechtelijke rechtssubjecten in het bestuursrechtelijke rechtsverkeer” (Authority is a concept that originates from the law of government organizations, which can be explained as the entirety of the rules relating to the acquisition and use of government authorities by public law subjects in public legal relations). According to FPCL Tonnaer, "Overheidsbevoegdheid wordt in dit verband opgevat als het vermogen om positief recht vast te stellen en Aldus rechtsbetrekkingen tussen burgers onderling en tussen overhead en te scheppen" (Government authority in this context is considered as the ability to implement positive law, and in this way, a legal relationship can be created between the government and citizens).[18]

1. Sources and Methods of the President/Government Obtaining Authority

In theory, authority derived from legislation is obtained through three methods: attribution, delegation, and mandate. Indroharto, as quoted by Ridwan, HR, stated that attribution involves the granting of new government authority through a provision in legislation. This is where a new authority is born or created. He further stated that legislators competent to grant attribution distinguish between government authority:

1. Who is in the position of legislative organ; in our country at the central level it is the MPR as the constitution maker and the DPR together with the government as the ones who give birth to laws, and at the regional level it is the DPRD and Pemda who give birth to regional regulations.
2. Who acts as delegated legislator; such as the President who, based on a statutory provision, issues a Government Regulation in which governmental authorities are created for certain State Administrative Agencies or Positions.

Delegation involves the transfer of existing authority from a state administrative body or office that has attributively acquired governmental authority to another state administrative body or office. Therefore, delegation is always preceded by an attribution of authority.[20]

From the explanation above, it can be understood that in the Republic of Indonesia, government organs must obtain attribution authority from the law makers (DPR and President) or direct orders from the 1945 Constitution (constitution), before running the government or making laws and regulations, including Presidential Regulations.

1. The President's Authority to Form Presidential Regulations

Article 4 Paragraph (1) of the 1945 Constitution states; "The President of the Republic of Indonesia holds the power of government according to the Constitution", this statement contains the meaning that the President is the holder of government power in the Republic of Indonesia. The President's authority after the amendment to the 1945 Constitution in terms of legislative authority is contained in; Article 5, Paragraph (1), "The President has the right to submit draft laws to the House of Representatives," Article 20 Paragraph (2) "Each draft law is discussed by the House of Representatives and the President to obtain joint approval.", Article 20 Paragraph (4) "The president ratifies the draft law that has been mutually agreed to become law", Article 22 Paragraph (1) "In cases of urgent necessity, the President has the right to issue government regulations in lieu of laws.".

Regarding Porigin 13 Law No. 12 of 2011 Taround Formation of Legislation in terms of material content of the Presidential Regulation determine "The contents of the Presidential Regulation contain material ordered by law, material to implement the Government Regulation, or material to implement the implementation of government power."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 the orders of the law.g-"Laws or Government Regulations expressly or implicitly order their formation."

Presidential Regulations are regulations 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. Presidential Regulations are formed to implement further regulations on the orders of laws or government regulations, whether expressly or not expressly ordered for their formation.[22]

1. Conclusion
2. The principle of legality in the field of state administrative law has the meaning "Dat het bestuur aan de wet is onderworpen" (that the government is subject to the law) or "Het legaliteitsbeginsel houdt in dat alle (algemene) de burgers bindende bepalingen op de wet moeten berusten" (the principle of legality determines that all provisions binding on citizens must be based on law). This principle of legality is a principle of the rule of law and democracy which is often formulated in a unique way in the phrase "Het beginsel van wetmatigheid van bestuur.
3. Article 4 Paragraph (1) of the 1945 Constitution states; "The President of the Republic of Indonesia holds the power of government according to the Constitution"This statement contains the meaning that the President is the holder of government power in the Republic of Indonesia and also has a legislative function.
4. Presidential Regulations are regulations 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. Presidential Regulations are formed to implement further regulations on the orders of laws or government regulations, whether expressly or not expressly ordered for their formation.

REFERENCES

Book :

Bambang Sunggono, 2011, Legal Research Methodology, Rajawali Press, Jakarta

Jimly Asshiddiqie, 2010, Regarding the Law-Invite, Rajawali Press, Jakarta

Moh. Mahfud MD, 2010, Constitution and Law in Controversy and Issues, Rajawali Press, Jakarta

Peter Mahmud Marzuki, 2011, Legal Research, Golden, Jakarta

Ridwan HR, 2003, State Administrative Law, UUI Press, Jakarta

Saldi Isra, 2010, The Shift in Legislative Functions Strengthens the Parliamentary Legislative Model in Indonesia's Presidential System, Rajawali Press, Jakarta

Soerjono Soekanto and Sri Mamudji,2006Normative Legal Research: A Brief Overview,Eagle Pres,Jakarta

Suharizal, 2002, Constitutional Reform 1998-2002: The Struggle for Concepts and Thoughts on Amendments to the 1945 Constitution, Orchid Law Firm, Padang

Yuliandri, 2010, Principles for the Formation of Good Legislation The Idea of ​​​​Continuous Law Formation, Rajawali Press, Jakarta

Constitution :

The 1945 Constitution.

Law Number 10 2004 Regarding the Formation of Regulations

Legislation.

Law Number 12 of 2011 concerning the Formation of Regulations

Legislation.

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