THE URGENCY OF REGIONAL REGULATIONS IN ORGANIZING THE IMPLEMENTATION OF STATE GOVERNMENT IN MALUKU

THE URGENCY OF REGIONAL REGULATIONS IN ORGANIZING THE IMPLEMENTATION OF STATE GOVERNMENT IN MALUKU[1]

Victor Juzuf Sedubun

 

 

Pintroduction

The existence of customary law communities in Maluku has long been highly influential in various aspects, including governance, economics, natural resource management and control, and so on. Specifically, for certain administrative regions, several terms are used to refer to villages: "negara" (country) in Central Maluku, "Ohoi" (mangrove) in the Kei Islands, and other terms used in various regions of Maluku.

The word village comes from Sanskrit, namely Deca, such as hamlet, country, country, nagaro, negory (nagarom), which means homeland, land of origin or birthplace, ancestral land which refers to a unity of life with a unity of norms and has clear boundaries.[2] According to the Big Indonesian Dictionary, a village is: (1) a group of houses outside the city which form a unit. village, hamlet; (2) village or hamlet, in the sense of an inland area as opposed to a city; (3) place, land, area.[3] According to the author, from a legal perspective, the terms negeri, ohoi, and other terms for the smallest level of government in Maluku can be interpreted the same as the term village. This is in accordance with the General Provisions of Law Number 32 of 2004 concerning Regional Government (hereinafter referred to as Law Number 32 of 2004).

From a geographical perspective, a village is defined as a place or area where residents gather and live together, utilizing the local environment to meet their needs. Historically, villages have been the embryonic foundation for the formation of political society and government. Long before the modern nation-state emerged, social entities such as villages, indigenous communities, and others were crucial social institutions. The diverse villages throughout Indonesia have long been the basis of local communities' livelihoods, possessing autonomy in managing power and governance over their populations, local institutions, and economic resources.[4]

Village (country, oh, and so on known in Maluku) has its own government structure. The arrangement of state government in Maluku cannot be separated from the legal basis that serves as a reference for the arrangement of the state government itself. The implementation of state government (for this writing, the author uses the term state for the village level government in Maluku) the role of regulation by legislation is very necessary, considering that the state is a subsystem of the national government.

For this reason, it is necessary to examine the urgency of the role of statutory regulations (which in this writing is more focused on the form of legal products in the form of Regional Regulations) in organizing the implementation of State governance in Maluku.

 

State Regulation in Legislation

The State Government as a sub-system of national government within the Unitary State of the Republic of Indonesia, has the authority to regulate and manage the interests of its people. The regulation on villages is contained in Law Number 19 of 1965 concerning Desapraja (hereinafter abbreviated as Law Number 19 of 1965) which states that "What is meant by Desapraja in this Law is a legal community unit with certain regional boundaries, has the right to manage its own household, elect its ruler and have its own property."

Article 1 letter a of Law Number 5 of 1979 concerning Village Government (hereinafter abbreviated as Law Number 5 of 1979) states that:

"A village is an area occupied by a number of residents as a community unit, including a legal community unit which has the lowest level of government organization directly under the sub-district head and has the right to organize its own household within the framework of the Unitary State of the Republic of Indonesia."

According to the author, the concept of a village according to Law Number 5 of 1979 has eliminated the concept of a country for the legal community unit in Maluku. Law Number 5 of 1979 does not recognize any other designation for a village, as stated in Article 35 paragraph (1) of the Transitional Provisions which states that: "a village or what is called by another name at the same level as a village that already exists at the time this law comes into effect is declared a village according to Article 1 letter a".

This means that after the enactment of Law Number 5 of 1979, all legal community units at the village level were renamed "Desa." Furthermore, the institutional structure of existing legal community units also underwent changes. This situation remained in effect until the issuance of Law Number 22 of 1999 concerning Regional Government (hereinafter referred to as Law Number 22 of 1999).

Law Number 22 of 1999 provides a new definition of village. General Provisions, Article 1 letter o of Law Number 22 of 1999 in conjunction with Government Regulation Number 52 of 2000 (hereinafter abbreviated as PP Number 52 of 2000), states:

"A village or what is called by another name, hereinafter referred to as a village, is a legal community unit that has the authority to regulate and manage the interests of the local community based on local origins and customs that are recognized in the National Government system and are located in the Regency Area."

Meanwhile, the definition of village government according to PP Number 52 of 2000 is "the organizer of government in the village consisting of the Village Head and Village Apparatus". The provisions of Law Number 32 of 2004 concerning Regional Government (hereinafter abbreviated as Law Number 32 of 2004) which replaces Law Number 22 of 1999, Article 1 number 12, in conjunction with Article 1 number 5 of Government Regulation Number 75 of 2005 concerning Villages (hereinafter abbreviated as PP Number 75 of 2005) state:

"A village or what is called by another name, hereinafter referred to as a village, is a legal community unit that has territorial boundaries and is authorized to regulate and manage the interests of the local community, based on local origins and customs that are recognized and respected in the government system of the Unitary State of the Republic of Indonesia."

Meanwhile, according to PP Number 72 of 2005, village government is the implementation of government affairs by the Village Government and Village Consultative Body in regulating and managing the interests of the local community based on local origins and customs which are recognized and respected in the government system of the Unitary State of the Republic of Indonesia.

The above provisions mean that the naming of villages in the context of customs in Maluku, which is known as negeri, oh and so on have been recognized in Law Number 22 of 1999 and Law Number 32 of 2004. The existence of village government is also regulated in Articles 202 to 216 of Law Number 32 of 2004. These articles generally regulate the arrangement of village government which includes the duties and authorities of the village head, the duties and authorities of the village deliberative body, village finances, the formation of village-owned enterprises, and assistance tasks.

So, speaking about villages, from a legal and political perspective, it can be concluded that there are two concepts of villages, namely: first, recognized villages, namely customary law communities which are referred to by local names and; second, namely the village that was formed by the government based on statutory provisions. Thus, the author feels it is wrong if the naming of the land must use the word "back" as in the title of the Maluku Provincial Regulation Number 14 of 2005 concerning the Re-Establishment of the Land as a Unit of Customary Legal Communities within the Maluku Provincial Government Area (hereinafter abbreviated as Maluku Provincial Regulation Number 14 of 2005). It would be more appropriate if the word "back" were removed so that it becomes "Maluku Provincial Regulation Number 14 of 2005 concerning the Determination of the Land as the Name of a Unit of Customary Legal Communities within the Maluku Provincial Government Area", because the word "back" in the title of the Regulation above means that the land was once lost or died. The land was never lost or died, because even though the name of the Land was changed to Village, in the daily life of the legal community in Maluku, the practice of customs and traditions still lives on.

The above regulation also implies that the recognition, respect, existence, and administration of village government cannot be separated from higher-level laws and regulations that regulate and validate the authority related to village government. These higher-level laws and regulations naturally refer to the types and hierarchy of laws and regulations stipulated in Law Number 12 of 2011 concerning the Formation of Legislation (hereinafter abbreviated as Law Number 12 of 2011).

 

The Urgency of Regional Regulations in the Arrangement of National Governance

Regional Regulations (hereinafter abbreviated as Perda) as an integral part of statutory regulations (written law), at the level of the formation process are bound by the principle of legality as referred to in Article 136 to Article 147 of Law Number 32 of 2004, but also need to pay attention to the customary legal values ​​in the relevant region.[5] Apart from that, the formation of legal products in the regions must still refer to the types and hierarchy of statutory regulations as referred to in Law Number 10 of 2004 in conjunction with Law Number 12 of 2011.

Before the enactment of Law Number 12 of 2011, the types and hierarchy of statutory regulations were regulated in Law Number 10 of 2004. Article 7 of Law Number 10 of 2004 states:

(1) The types and hierarchy of statutory regulations are as follows:

a. The 1945 Constitution of the Republic of Indonesia;

b. Law/Government Regulation in Lieu of Law;

c. Government Regulations;

d. Presidential Regulation;

e. Regional Regulations.

(2) Regional Regulations as referred to in paragraph (1) letter e include:

a. Provincial regional regulations are made by the provincial people's representative council together with the governor;

b. District/city regional regulations are made by the district/city regional representative council together with the regent/mayor;

c. Village regulations/equivalent regulations, made by the village representative body or other name together with the village head or other name.

(3) Further provisions regarding the procedures for making Village Regulations/equivalent regulations are regulated by the relevant district/city Regional Regulations.

Before the enactment of Law Number 10 of 2004, there were various provisions related to the formation of legislation including the techniques for drafting legislation that were regulated in an overlapping manner, both regulations from the colonial period and those made after Indonesia's independence. Law Number 10 of 2004 is a mandate from Article 22A of the 1945 Constitution of the Republic of Indonesia and Article 6 of the Decree of the People's Consultative Assembly Number III/MPR/2000 concerning Legal Sources and Order of Legislation, which is intended to form a standard provision regarding the procedures for the formation of legislation.

Law Number 10 of 2004 was then replaced by Law Number 12 of 2011 which provided a new nuance in the formation of legal products, both legal products whose formation authority lies with state institutions at the central level and those whose formation authority lies with state institutions at the regional level. Why? Because its presence has provided a legal basis in the formation of legislation both at the central and regional levels, while also regulating in a complete and integrated manner both regarding the system, principles, types and content of legislative regulations, preparation, discussion and ratification, promulgation and dissemination as well as public participation.

Article 7 paragraph (1) of Law Number 12 of 2011 states that the types and hierarchy of statutory regulations are:

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 Regulation;

f) Provincial Regional Regulations; and

g) Regency/City Regional Regulations.

In relation to the administration of state government, regional regulations play a crucial role. This is evident in the provisions of Articles 203, 208, and 216 of Law Number 32 of 2002, which generally state that the administration of state government must be regulated in a regional regulation guided by higher-level laws and regulations.

Article 203 regulates the implementation of the election of village heads or kings which must be regulated in a regional regulation guided by government regulations. This provision is stated in paragraphs (1) and (3) which state that:

(1) The village head as intended in Article 202 paragraph (1) is elected directly by and from the village residents who are citizens of the Republic of Indonesia whose further conditions and procedures for election are regulated by a Regional Regulation which is guided by Government Regulations.

(3) The election of village heads within customary law communities and their traditional rights, as long as they are still alive and their existence is recognized, is subject to local customary law provisions stipulated in Regional Regulations, guided by Government Regulations.

Article 208 regulates the duties and obligations of the village head or Raja. Article 208 states: "The duties and obligations of the village head in leading the implementation of village governance are further regulated by Regional Regulations based on Government Regulations."

The role of the Regional Regulation as the basis for the implementation of state governance in Maluku is very clearly regulated in Article 216. Article 216 states that:

(1) Further regulations regarding villages are stipulated in Regional Regulations with reference to Government Regulations.

(2) The Regional Regulation, as referred to in paragraph (1), must recognize and respect the rights, origins and customs of the village.

Regarding the existence of legal products produced by the State Government, the provisions of Article 8 of Law Number 12 of 2011 can serve as the legal basis for the validity of these legal products. Article 8 of Law Number 12 of 2011 states that:

(1) Types of statutory regulations other than those referred to in Article 7 paragraph (1) include regulations stipulated by the People's Consultative Assembly, the People's Representative Council, the Regional Representative Council, the Supreme Court, the Constitutional Court, the Audit Board, the Judicial Commission, Bank Indonesia, Ministers, bodies, institutions or commissions of the same level established by law or by the Government on the orders of law, the Provincial People's Representative Council, the Governor, the Regency/City People's Representative Council, the Regent/Mayor, the Village Head or those of the same level.

(2) The existence of the statutory regulations referred to in paragraph (1) is recognized and has binding legal force as long as it is ordered by higher statutory regulations or is formed based on authority.

The above regulation means that the existence of the type of statutory regulation as regulated in Article 8 paragraph (1) is recognized if its formation is ordered by higher statutory regulations. The Regional Government (hereinafter Pemda) in forming Regional Regulations on the implementation of State government, must be able to accommodate the interests of the State community. The Regional Government provides for the people of its region according to the needs and special conditions in the region, as long as the Regional Government can still be accounted for. This is in accordance with Andrew Arden's opinion that:

"Local government does not exist in a vacuum. Its purpose is to provide for the people of their areas that are or may not be provided by others, whether the private sector or indeed other organs of government (central and appointed bodies with central or local governmental functions). Accordingly, local government is an essential part of the organization of the state as a whole and, as such, is both regulated by, and accountable to, central government, with which and with other bodies its functions co-exist".[6]

This means that a State Regulation (hereinafter referred to as Perneg) is recognized as existing if its creation is mandated by higher-level legislation. Furthermore, the contents of the Perneg do not conflict with higher-level legislation or the interests of the nation's citizens.

 

Closing Event

Recognition of the existence of villages or other designations is stated in Law Number 22 of 1999 and Law Number 32 of 2004, while recognition of the existence of State Regulations as legal products that exist in the types and hierarchies of statutory regulations is regulated in Law Number 12 of 2011. However, the validity of the implementation of State governance and State Regulations must be regulated in Regional Regulations. Maluku Provincial Regulation Number 14 of 2005 is the legal umbrella for the implementation of State governance in Maluku. With the existence of Maluku Provincial Regulation Number 14 of 2005, all Regencies/Cities can form their own Regional Regulations to accommodate the mention of legal community units at the village level in their respective regions. Thus, Regional Regulations have a very urgent role in the implementation of State governance and the formation of State Regulations.

 

 

READING LIST

Arden, Andrew. 2008. Local Government Constitutional Law and Administrative Law, Thompson Sweet & Maxwell. London.

Geertz, Clifford. 2000. The Theater State in Nineteeth–Century Bali, which translates as Theatre Country, Kingdoms in Bali in the Nineteenth Century. in Suhartono. 2000. Local Politics. Lapera Pustaka Utama. Yogyakarta.

Kurnia, Mahendra Putra, et al. 2007. Guidelines for Academic Manuscripts of Participatory Regional Regulations. Total Media Creation. Yogyakarta.

Sukriono, Didik. 2010. Village Government Legal Reform, Legal Politics of Village Government in Indonesia. Setara Press, Center for Constitutional Studies, Kanjuruhan University. Malang.

The Language Center Dictionary Compilation Team. 2001. The Great Dictionary of the Indonesian Language. Third Edition. First Printing. Balai Pustaka. Jakarta.

Law of the Republic of Indonesia Number 19 of 1965 concerning Village Administration (State Gazette of the Republic of Indonesia 1965 Number 84; Supplement to the State Gazette of the Republic of Indonesia Number 2779).

Law of the Republic of Indonesia Number 22 of 1999 concerning Regional Government (State Gazette of the Republic of Indonesia 1999 Number 60; Supplement to the State Gazette of the Republic of Indonesia Number 2779).

Law of the Republic of Indonesia Number 10 of 2004 concerning the Formation of Legislation (State Gazette of the Republic of Indonesia 2004 Number 5; Supplement to the State Gazette of the Republic of Indonesia Number 4455).

Law of the Republic of Indonesia Number 32 of 2004 concerning Regional Government (State Gazette of the Republic of Indonesia 2004 Number 125; Supplement to the State Gazette of the Republic of Indonesia Number 4437).

Law of the Republic of Indonesia Number 12 of 2011 concerning the Formation of Legislation (State Gazette of the Republic of Indonesia 2011 Number 82; Supplement to the State Gazette of the Republic of Indonesia Number 5234).

Maluku Province Regional Regulation Number 14 of 2005 concerning the Re-establishment of the Village as a Unitary Customary Law Community within the Maluku Province Government Area (Maluku Province Regional Gazette 2005 Number 14).