Corresponding Author: Heru
Pradijonrika
E-mail: [email protected]
INTRODUCTION
The State always has a text called the Constitution or
Basic Law. All constitutions have always been a power as the centre of power
itself; in essence, it needs to be regulated and limited accordingly. The
enactment of a form as a binding basic law is based on the highest authority or
the principle of Sovereignty adopted by a country. If the government adheres to
the ideology of people's Sovereignty, then the source of legitimacy is the
people. If what applies is the understanding of the king's Sovereignty, then
the king determines whether a constitution applies (Jumadi, 2016).
The Constitution is the basis used as a guideline in
the administration of a country. The figure can be in the form of a written
basic law called the Basic Law (Jimly, 2009). Shapes can be divided into two categories: political
bodies and social conditions. A political constitution is a constitution which
is merely a legal document containing articles containing basic norms in the
administration of the State, the relationship between the people and the State,
state institutions and so on. At the same time, the social Constitution has a
broader meaning than just a legal document because it contains the social
ideals of the nation that created it, philosophical formulations about the
state, social and economic system formulations, as well as formulations of the
political system that the country wishes to develop (Mahendra, 1996).
In developing national life, the Constitution is the
best choice for providing ideological bonds between those in power and those
they control (the people) (El-Muhtaj, 2017). The form is a keyword in the life of modern society.
Hence, as the most important part of the nation's life, the figure reflects a
significant relationship between the government and the people. The presence of
a form is a condition sine qua non for a country. The body not only provides an
overview and explanation of the mechanisms of state institutions, but it is
also found in the relation and position of the rights and obligations of
citizens. The Constitution is a social contract between those governed (the
people) and those who rule (rulers, government).
According to CF Strong in his book Modern Political
Constitutions (Strong, 1960), the objects of a constitution, in short, are to
limit the government's arbitrary action, guarantee the rights of the governed,
and refine the operation of the sovereign power. So important is the presence
of a constitution in a country. It is difficult to imagine how a country is
experiencing a crisis in its body. Theoretically, it can be said that all
nations and countries express the main points of view of the establishment and conceptual
principles regarding managing their lives in the form of a written or unwritten
constitution. In a welfare state, the most important thing is that the State is
increasingly autonomous in regulating and directing the functions and roles of
the State for the benefit of society.
In line with the idea of constitutional democracy,
which is inseparable from the concept of the rule of law, both rechtstaat
and the rule of law, in principle, have a fundamental similarity, namely the
recognition of the importance of constitutionally limited powers. Lord Acton,
in his "political axiom", says power tends to corrupt and absolute
tends to corrupt absolutely (power tends to rot and absolute power tends to deteriorate,
too) (El-Muhtaj, 2017).
One of the characteristics of a state, which in
English is called a legal state or a state based on the rule of law, is that it
has a different historical background and understanding. Still, both contain
the idea of limiting power (Saldy, 2021). The restriction was carried out by law which later
became the basic idea of modern constitutionalism.
Therefore, the rule of law is also referred to as a
constitutional state or constitutional State, namely a state limited by a
constitution. In the same context, the idea of a democratic state or people's sovereignty
is also called constitutional democracy, which is connected with the notion of
a democratic state based on Law (HABSARI, 2013). State law (Rechttaat), the State aims to organize
legal order, namely the order which is generally based on the law contained in
the people. The rule of law maintains legal order so that it is not disturbed
and everything goes according to Law (Cahyani, 2021).
While some experts define a rule of law state
differently, as stated by D. Muthiras, the rule of law is a country whose
composition is properly regulated in-laws so that all the powers of its
government apparatus are based on Law (Pramita Sari, 2019). The people are not allowed to act independently
according to their will, which is against the law. The rule of law is a country
ruled not by people but by laws.
For countries with a constitution, especially those
calling themselves a state of law, the body of the government functions as the
highest law and as a source of direction for all regulations in effect in the
country concerned.
A civilized nation is a nation that carries out its
legal functions in an independent and dignified manner �being independent and
dignified means that in enforcing the law, it is obligatory to side with
justice, namely justice for all. Because if law enforcement can apply the value
of justice, of course, the legal function is applied using philosophical
thinking.
Philosophers have long developed the idea of the rule
of law from ancient Greece. At first, in the republic, Plato argued that it is
possible to realize the ideal State to achieve goodness with the core of integrity.
For this reason, power must be held by people who know worth, namely a
philosopher (the Philosopher King). But in his books "The Stateman"
and "The Law," Plato stated that what can be realized is the second-best
form that places the rule of law (Muhlashin, 2021).
A government that can prevent the decline of one's
power is by law. In line with Plato, the goal of the State, according to
Aristotle, is to achieve the best life possible, which can be achieved with the
rule of law. Law is a form of collective wisdom of citizens (collective knowledge),
so the role of citizens is needed in its formation (Usman, 2015).
The concept of a modern rule of Law in Continental
Europe was developed using the German term "Rechtsstant" by Immanuel
Kant, Paul Laband, Julisu Stahl, Fichte, and others. Meanwhile, in the
Anglo-American tradition, the concept of the rule of law was developed as
"The Rule of Law" pioneered by AV Dicey (Rokilah, 2019). The purpose of this study is to analyze and find the
legal philosophical basis for the role of the House of Representatives and the
President in the Indonesian constitutional system, to analyze and discover the role
of the House of Representatives and the President in the formation of laws. The
benefits of doing this research are as knowledge and scientific treasures of
Constitutional Law in the study of Law science regarding the process of forming
laws including the use of Carry Over and Omnibus Law methods.
METHOD
This is a type of normative research, namely legal
research, a scientific research procedure to find the truth based on scientific
logic from the normative side. The normative side here is not limited to
statutory regulations, which is done by examining library materials which are
the object of writing research the form of existing library materials, both in the State
of books, journals, and regulations that have a bearing on the discussion of
problems so that writing This is also a library writing (library research).
This study used data collection techniques through the
literature study method, namely research carried out using literature (library),
which includes
laws and regulations related to legal concepts and the process of forming statutes,
books, scientific journals, mass media, and the internet, as well as other
relevant references to answer various problem formulations. Of course, this
research method will collide with the phenomena that are happening now.
Legal materials obtained from the library research
results were analyzed descriptively qualitatively, namely collecting and
selecting legal materials according to the problems studied, then described to
produce a picture or conclusion following the actual situation to answer all
existing issues.
The initial stage of the researcher treating qualitative
data is organizing and organizing the data. With a lot of qualitative data from
the data collection results, the researcher must collect the information
neatly, systematically, and completely as possible. Systematic data
organization allows researchers to:
a. Obtain good data quality;
b. Documenting the analysis performed; and
c. Storing data and analysis related to the completion of the
research.
RESULTS AND DISCUSSION
The post-New Order People of
Representatives (DPR) underwent significant changes. The amendments to the 1945
Constitution resulted in a new format for the DPR, in which the role and
authority of the DPR became stronger. In Legislation, the right is entirely in People
of Representatives (DPR). As a lawmaker, the People of Representatives (DPR) can
make laws. Based on Article 20 of the Constitution of the Republic of Indonesia
says:
Paragraph (1) The People's Representative Council can
make laws.
Paragraph (2) Each Draft Law is discussed by the People
of Representatives (DPR) and the President for mutual approval.
Paragraph (3) If the Draft Law is not mutually
approved, the Draft Law may not be submitted again at the session of the DPR at
that time.
Paragraph (4) The President ratifies the Draft Law,
which has been mutually agreed upon to become a Law.
Paragraph (5) If the President does not ratify the
Draft Law that has been mutually agreed upon within thirty days after the Draft
Law is approved, the Draft Law is valid to become a Law and must be
promulgated.
Based on Article
20 of the 1945 Constitution above, there has been a paradigm shift, especially
in making laws that originally had more executive branch power, changing
towards the legislature (legislative heavy). The People of Representatives (DPR)
is the holder of power in forming Laws. On the one hand, the President does
have a duty to approve Draft Laws to become Laws after, of course, the Draft
Laws are discussed jointly between the President and the People of
Representatives (DPR).
Based on Article
20 paragraph (5) of the 1945 Constitution, without the President's signature, a
law will take effect if it has been previously discussed by the President and
the People of Representatives (DPR). Legislative power is not controlled by the
People of Representatives (DPR) alone. Still, the President also has the right
to participate as stipulated in Article 5, Paragraph (1) of the 1945
Constitution. The President's participation in the legislative field manifests
a mechanism of checks and balances between the President and the DPR. So that
the power of the People of Representatives (DPR) as the holder of legislative
power can be minimized, even though, in the end, the law that has been mutually
agreed upon will still be promulgated if the President does not approve it.
Article 4
Paragraph (1) of the 1945 Constitution of the Republic of Indonesia says that the
President of the Republic of Indonesia holds government power according to the
Constitution. Article 5, Paragraph (1) of the 1945 Constitution of the Republic
of Indonesia states that the President has the right to submit a Draft Law to
the People of Representatives (DPR).
In this article,
the President who holds government power refers to the President's
understanding according to the Presidential system of government (Santio &
Nasution, 2021). The President, as chief executive, has powers in
the field of various laws and regulations, namely
1)
Legislative power means the President can submit
bills to the People�s of Representatives (DPR).
2)
Regimental power, which forms government regulations
to implement laws or to implement government regulations instead of rules; and
3)
Executive power contains regulatory authority,
namely regulation by presidential decree. So that the understanding of the
rights of the President in the legislative field can be understood easily
Legislative power in trias politica is the power to form laws. If
reflected in the state institution that functions as holding legislative power
according to the 1945 Constitution is the People's
Representative Council as stated in article 20 paragraph (1) of the 1945
Constitution, which reads, "DPR holds power to make laws."
The State of Indonesia has established itself as a constitutional state.
The rule of law in question is a state that rests on the belief that state
power must be exercised based on just and good direction (Qamar et al., 2018).
The rule of law requires that
every action by the State must aim to uphold legal certainty, be carried out
equally, be an element that legitimizes democracy, and fulfill the demands of
reason.
That Indonesia, based on the applicable Constitution, characterizes it as
a country based on the law (resistant) and not based on mere political power
(machtstaat) in running the wheels of state government; this is indicated by
how the process of political accumulation concerns the interests of the State
as an institution that has the authority to regulate the social life of the
community carries out the goods of the State on behalf of its people in forming
state laws and regulations.
Based on Chapter I concerning the Form and Sovereignty of the 1945
Constitution of the Republic of Indonesia, said
Article 1, Paragraph (1) of the
1945 Constitution states that the State of Indonesia is a Unitary State in the
form of a Republic.
Article 1, Paragraph (2) of the
1945 Constitution states that Sovereignty is in the hands of the people and
implemented according to the Constitution.
Article 1, Paragraph (3) of the
1945 Constitution confirms that Indonesia is a state based on law.
To exercise state power as a form of implementation of the authority of
state interests on behalf of its people will be realized by separating several
state institutions, which we are often more familiar with as the trias
politica.
The concept of trias politica
is a normative principle that powers should not be handed over to the same
person or institution to prevent abuse of power (abuse of power) by those in
power.
So trias politica is a state
power consisting of three kinds of energy, namely:
1)
Legislative power, or the power to make laws, is
often called the "rule-making function".
2)
Executive power or the power to carry out the Act is
often called the "rule application function."
3)
Judicial power or the power to try violations of the
law, which is often referred to as the "rule adjudication function."
These three state institutions will later determine state policies
related to legal politics that are adapted to the power and authority of each
of these state institutions.
Referring to the classical constitutional theory put forward by
Aristotle, the concept of the rule of law is a thought that is confronted
(contrasted) with the idea (rule of man). In the modern constitutional State, one
of the characteristics of the rule of law (the rule of law or rechtsstaat) is
marked by the limitation of powers in the administration of state power. The
restriction was carried out by statute, which later became the basic idea of
modern constitutionalism. As Julias Stahl, division or separation of powers is
one of the important elements of the continental European rule of law theory.
The idea of limiting power is inseparable from the experience of
accumulating all branches of state power in one person's hands, giving rise to
absolute power. Based on the history of the development of state thought, the
idea of horizontal separation of powers was first put forward by John Locke in
the book "Two Treaties of Civil Government."
For more than 200 years, the legislature has been a key institution in
the political development of modern countries. Observing the development of
state institutions, the legislature is the first branch of power that reflects
people's Sovereignty.
In CF Strong's view, the legislature is the government's power in the law
in so far as the statute requires statutory force. In this regard, Hans Kelsen
emphasized:
�By legislative power legislation, one does not understand the function
of creating law, for a special aspect of this function, the general creation
norm. "A law," a product of the legislative process, is essentially a
general norm or a complex of such models.
�With legislative powers, the Act does not conceive the entire function
of forming the Act, but the specific aspect of this function, the general norm
of creation. "A law" is a product of the legislative process, a
general or complex norm of these norms.
Furthermore, Hans Kelsen added the legislature's function is understood
not as the formation of all general norms. Still, a special organ, the
legislature, carries only the appearance of available criteria.
The general norms made by the legislature are called "laws."
(statutes) which are distinguished from general criteria made by an organ or a
legislative body. In the position of the legislature as the maker of all available
standards, Jimmly Asshiddiqie said
"The authority to regulate and make rules (regeling) is the domain
of the authority of the legislature, which is based on the principle of
sovereignty, is the executive authority of representatives of the sovereign
people who determine a binding regulation and limit the freedom of every
individual citizen (presumption of liberty of the sovereign people).�
As a modern country, Indonesia has adopted or practiced two models of
government systems, namely the presidential and parliamentary systems of
government, in different periods.
Throughout the period 1945 to 1959, Indonesia implemented a system of
government with three different constitutions, namely:
1)
The 1945 Constitution (1945 to 1949).
2)
Provisional Constitution of the United States of
Indonesia (1949 to 1950).
3)
Provisional Constitution of the Republic of
Indonesia 1950 (1950 to 1959).
When returning to the 1945 Constitution, through a presidential decree on
July 5, 1959, Indonesia used a presidential system of government with the
following characteristics:
1)
The President and Vice President are elected by the
People's Consultative Assembly (MPR) of the Republic of Indonesia.
2)
The President is responsible for Indonesia's
People's Consultative Assembly (MPR).
3)
There are no restrictions on the President's term of
office periodization.
With that character, Sri Soemanteri said that the Indonesian government
system contains elements/characteristics of a presidential and parliamentary
system of government. Because of this, when the
People's Consultative Assembly (MPR) resulted from the 1999 general elections,
it was agreed to maintain the presidential system of government during the four
amendments to the 1945 Constitution (revision). Even though they have used
different government systems, the power to form laws is in the same pattern,
jointly between the government and the Regional Representative Council (DPR).
For Ismail Sunny, the phrase together in Article 5, Paragraph (1) of the
1945 Constitution resembles the function of Legislation in countries that use a
parliamentary system of government.
Moh also expressed the same view. Kusnardi and Harmaily Ibrahim, if the
provisions contained in Article 5 Paragraph (1) of the 1945 Constitution were
connected with Article 21 Paragraph (2) of the 1945 Constitution before the
amendment, the 1945 Constitution did not fully adhere to (using) a presidential
government system because the President and the People's Representative Council
(DPR) jointly make laws.
This means that of the three constitutions, there is one thing in common:
the government and the People's Representative Council (DPR) have the power to
form laws. Thus the three basic laws regulate and justify the fusion between
the government and the People's Representative Council (DPR) in developing rules
or legislative functions.
Therefore, as part of efforts to purify the Presidential government
system in the amendments to the 1945 Constitution, which took place from 1999
to 2002, the provisions contained in Article 5 Paragraph (1) of the 1945
Constitution state that:
"The
President holds power to form laws with the approval of the People�s of Representatives." Changed to "The President has the right to
submit Bills to the People�s of Representatives.
It did not stop until the amendment to Article 5
paragraph (1), Article 20 paragraph (1) was also changed from "every law
requires the approval of the People's Representative Council (DPR) to "the People's Representative Council (DPR) has the power to form laws."
In Jimly
Ashiddiqie's view, after the amendment to Article 5 paragraph (1) and Article
20 paragraph (1) of the 1945 Constitution, there has been a shift in
substantive power in legislative power or lawmaking power from the President to
the People of Representatives (DPR).
In line with Jimly Asshiddiqie's view, Wicipto
Setiadi added that as the holder of state government power, the President only
has the right to submit Bills to the People's Representative Council (DPR).
This means that changes to Article 5 paragraph (1) and Article 20 paragraph (1)
of the 1945 Constitution shift the pendulum of power to make laws from the
executive to the legislature.
Even by comparing
the differences in the formulation in Article 5 Paragraph (1) of the 1945
Constitution and Article 20 Paragraph (1) of the 1945 Constitution before and
after the amendment, many people argue that the People's Representative Council
(DPR) has become stronger in the use of its legislative function. Suppose the
regulatory process of Legislation is only seen from the changes in Article 5,
Paragraph (1) of the 1945 Constitution and Article 20, Paragraph (1) of the
1945 Constitution. In that case, it is not wrong to say that the pendulum of
legislative power shifts from the executive to the legislature or changes from
the President to the People's Representative Council (DPR).
That does not mean
that the People's Representative Council (DPR) is stronger and more dominant than the President in
legislative functions. Regarding the presence of Article 20, Paragraph (2) and
Paragraph (3), Moh Fajrul Falaakh argued that the changes intended to empower
the People's Representative Council (DPR) do not mean much in terms of
legislative functions because each Draft Law is only valid if it is approved
jointly. By the President and the People's Representative Council (DPR).
Comparing the role or form of the President's involvement in the legislation
process, Baqir Manan argued that before the amendment to the 1945 Constitution,
there were four forms of the President's participation in the formulation of
the Act, namely:
1)
Design
2)
Discussion
at the People's Representative Council (DPR)
3)
Refusing
(not) to ratify the Draft Law approved by the People's Representative Council
(DPR).
4)
As
well as loading in the State Gazette and Supplement to the State Gazette.
Of the four forms of involvement, Baqir Manan confirmed that approval is
not the domain (authority) of the President in the process of forming laws.
With this mutual consent. The function of Legislation in the Indonesian
presidential government system after the amendment to the 1945 Constitution
divided the ultimate authority that should only be owned by the People's
Representative Council (DPR) into a dual source held by the People's
Representative Council (DPR) and the President.
This change in legislative power took place after the process of amending
the 1945 Constitution was completed in 2002. Still, on its way, it did not go
according to the intent of
the amendment to the 1945 Constitution of the Republic of Indonesia. Various
problems still plague the People of Representatives (DPR) in carrying out the
function of forming Legislation.
Two issues that are
in the public spotlight on the legislative function of the DPR are the minimum
quantity and quality of the People of Representatives (DPR) Legislation,
namely:
a.
In
terms of quantity, the legislative function of the People of Representatives
(DPR) cannot be carried out optimally because the legislative targets in the
national legislation program (prolegs) for four periods (1999-2004, 2004-2009,
2009-2014 and 2014-2019) have never been implemented achieved.
b.
Regarding
quality, laws initiated and ratified by the People of Representatives (DPR)
often become the object of judicial review at the Constitutional Court.
Philosophically,
the legislative function of the People of Representatives (DPR) significantly
influences the lives of many people. Every law produced is binding on the
people of Indonesia without exception. This is where the participation of the People
of Representatives (DPR) in carrying out its legislative function is the focus,
considering that this institution has the responsibility of being a forum for
democracy and public participation in governance.
Based on the
provisions of the 1945 Constitution of the Republic of Indonesia, there was a
change in the pattern of power from which originally the power was in the
executive power (executive heavy) to shift towards strengthening the
legislature (legislative heavy). With this shift, the President is not in full control
when forming laws. This shift is contained in the provisions of Article 5,
Paragraph (1). It is also reflected in Article 20 Paragraph (1), which states
that the People's Representative Council (DPR) holds the power to form laws.
This makes the People's Representative Council (DPR) more responsible for creating
rules. Therefore, the People of Representatives (DPR) has greater
responsibility for the success or failure of Legislation.
According to
the doctrine of the hierarchy of legal norms developed by Hans Kelsen, lawful means
are hierarchical and culminate in the "grundnorm" or basic criterion.
This hierarchical normative perspective is very influential in theory and
practice, so it often has implications for the understanding or institutional
structure of state power organizations that contain state positions or
'staatsorganen,' which also includes the hierarchical system itself.
Structurally,
this understanding of the hierarchy of legal norms, as described by Hans
Kelsen, has a direct impact on the institutional structure of state
organizations, which consist of various state institutions, government
positions and civil service positions, and even other public office positions.
In this formal
and structural perspective, the hierarchy of legal norms automatically causes
an absolute institutional scale. Institutions that create higher legal standards
(higher norm-creating institutions) must be considered to have a higher
position than institutions that make lower legal models (lower norm-creating
institutions).
Hans Kelsen's
theory of hierarchy of legal norms is just one part of Hans Kelsen's theory of law,
as Hans Nawiasky's opinion is not much different from Hans Kelsen's idea of
"grundnorm" which he calls "staatsfundamentalnorm"
based on the theory of "Stufenbau der Rechtsordnung."
Hans Nawiasky
formulates a hierarchy of norms that is more detailed, easier to understand,
and quoted by many of our legal scholars. According to Hans Nawiasky, the order
of legal standards includes:
1.
State
Fundamental Norms (staatsfundamentalnorm).
2.
The
Constitution is written (staatsgerundgesetz).
3.
Formal
Law (formell gesetz).
4.
We
are implementing laws and regulations (Verordnung) and autonomous regional
regulations for governor and regent/mayor decisions (autonomy satzung).
It can be said
that Hans Nawiasky is quite detailed and elaborative in explaining his opinion
regarding
i. Staatsfundamentalnorm
ii. Staatsgerundgesetz
iii. Formell gesetz
iv. Verordnung en autonomie satzung
Whereas what Hans
Nawiasky called hierarchical "Staatsfundamentalnorm" is above and is
the valid basis for the text of the written Constitution (Staatsgerundgesetz).
The text of the Constitution becomes a presupposition for the material of the law
as "Formell Gesetz," which then becomes the basis and foundation for
the formation of implementing rules and regulations at the national government
level (Verordnung).
In modern states,
the Constitution regulates the fundamental interactions between state
institutions, including the legislative function. The pattern of controlling
legislative functions is determined by the design of relations between the
executive and the legislature. The style of the government system largely
determines this.
In the literature
on constitutional law and political science, there are various variants of
government systems, but the most common is
1)
the
parliamentary system of government
2)
presidential
government system
3)
semi-presidential
system of government
The government
system has a character that is different from one another. This difference concerns
the general texture of each government system and the patterns in forming laws.
In the realm
of jurisprudence, there are many definitions of Legislation. The standard term
used can refer to the provisions of Article 1 point 1 of Law Number 12 of 2011
concerning the Establishment of Legislation (UUP3) which states:
"Formation of
laws and regulations is the making of laws and regulations which include the
stages of planning, preparation, discussion, approval or determination, and
promulgation."
The definitional
limits, as stipulated by the law on the Formation of Legislation (UUP3) in
terms of language and legal knowledge, contain a dichotomous meaning which means:
1)
The
process of forming a law.
2)
The
legal product itself
If a
theoretical search is carried out, the legislation terminology will be the same
as the Legislation itself, commonly called wet even, gesetgebung, or Legislation.
Based on reading and tracing various theories, it turns out that many experts
provide definitions of this Legislation. Some give a single meaning, and some offer
a double sense. This is because, theoretically, two main poles define the
legislation process.
The two poles
of opinion were inspired by two prominent legal experts, Von Savigny and Jeremy
Bentham. For Savigny, Law is invented, not made. This view contrasts with the idea
of Jeremy Bentham, who acculturates that law is constructed so that it can
operate effectively.
In principle,
some of the experts above believe that Legislation is not just a product but
also a process. In it, there is the interaction between the institutions
forming the law. Regarding the literal meaning of the word legislation itself, Legislation
can be interpreted into several substances; at least there are three meanings
of the word legislation, namely:
1)
The
process of making or enacting a positive law in a different form, according to
some formal procedure, organized by the branch of government to carry out this
process.
2)
The
law so enacted
3)
The
whole body of enacted laws.
Furthermore, Jeremy
Bentham and John Austin said that "legislation" is "any form of
lawmaking." �The term is restricted to a particular form of lawmaking. The
declaration of the statutory form of rules of law by the State's legislature.
The law that has its source in Legislation is called enacted or written law.�
Of course, the
views above show that sociologically, Legislation is a field where interests
and forces within society compete. Thus, the constitution-forming organs
reflect the configuration of power and interests in the community.
The articulation of
interests in society is reflected in the legislative process. Sardjito Rahardjo
stated that the big stages in stages in the formation of law, namely
1)
Social
Stages
At the sociological stage, processes take place to
finalize a problem which will then be brought into the juridical agenda. In the
socio-political background, the initial idea that something needs to be
regulated in law is processed by the people themselves, discussed, criticized, and
defended through the exchange of opinions between various groups and forces in
society. At this stage, an idea undergoes a test, whether it can be continued
as a public agenda formatted legally or stopped in the middle of the road.
2)
Juridical
Stages
If the idea is politically successful, then the form
and content will certainly change from the initial concept; it will be
continued into the juridical stage, which is work that involves the formulation
or approval of a legal regulation. This stage involves intellectual activities
that are purely juridical and are undoubtedly handled by special legal educated
personnel.
Regarding the
discussion procedure above, Ann Siedman stated that the legislative process
should pay attention to 6 (six) things, namely:
a.
Origins
of the Draft Law (a bill's heritage).
b.
Concept
(the concept paper).
c.
Prioritization.
d.
Drafting
the bill (drafting the account).
e.
Research
(research).
f.
Who
has access (who has access and supplies input into the drafting process?
In a country that
adheres to a democratic system, the distribution of various interests and
powers is accommodated through a representation system. From a democratic
perspective, it requires equal treatment of every group, is characterized by
relations and togetherness, and pays attention to public opinion. In this
context, there should be an intense exchange between the legislature and the
people.
Legislation plays
an important role in implementing the Constitution, including clarifying, and
detailing constitutional norms and regulating their performance. Legislation is
an instrument or derivative of the Constitution (daily Constitution), or it is
called basic Legislation in the United States.
The terms
legislation and statutory regulations come from the word wettelijke regels. The
two terms are not used consistently, depending on the context in which they are
used, but both the terms laws and regulations come from the word "law,"
which refers to the type and form of regulations made by the State.
Laws in Dutch
literature are known as "Wet," which has two kinds of meanings,
namely "wet in formal zin" and "wet in materiel zin,"
namely laws based on the form and method of formation as well as the meaning of
laws based on to its content or substance.
Based on this, it
can be formulated that the statutory system is the entire set of state
regulations arranged regularly in terms of form and substance.
Burkhardt Krems mentions the establishment of the
regulation
1.
Concerning
the contents of rules (Inhalt der Regulung).
2.
Form
and arrangement of regulations (Form der Regulung).
3.
The
rule formation method (Methode der Ausarbeitung).
4.
And
the process of forming regulations (Verfahren der Ausarbeitung der Regulung).
The contents of regulations can be referred to as
statutory regulations if these regulations, in addition to containing binding
legal norms in general, are also made by state institutions or authorized
officials. In the Presidential system as adopted by Indonesia, in general, the
legislative function has the following general characteristics:
1.
The
legislature tends to have broad powers to change any law. Lack of resources and
other factors can act to blunt this power. (Congress tends to have general authority
to amend any legislation. Lack of sources and other factors may serve to blunt
this power).
2.
The
potential for legislative assertiveness is greater in presidential systems, but
its realization depends on other conditions. (The potential for legislative emphasis
is greater in the presidential system, but the actual realization depends on
the presence of other states).
3.
Legislatures
in presidential systems are more likely to have specific, standing committees
and subcommittees with several professional staff to half draft, review, and
amend laws. (Legislatures in presidential systems are more likely to have
specialized and candy-standing commitments and subcommittees with several
professional staff to half draft, review, and amend Legislation).
4.
Through
the committee system, the legislature has other powers to summon expert
witnesses, members of the cabinet, advisers to the President, etc., for public
or private hearings before conducting the legislative process (Via the
committee system, the legislature has extensive power to call expert witnesses,
member cabinet, presidential advisor, etc. for public or private hearings
before for congress).
The power of the State
to form statutory regulations basically must be directed at the formation of
good statutory regulations. Regarding the size of good Legislation, it can
refer to Lon Fuller's thoughts regarding positive legal content, which must
fulfill 8 (eight) elements which include:
a.
Regulations
that serve as guidelines for authorities must be announced or published (Promulgation).
b.
There
must be general rules for decision-makers (The Generality of Law).
c.
Laws
or regulations may not apply retroactively (Retroactive Laws).
d.
Regulations
are arranged in a clear or clear formula (The Charity of Laws).
e.
The
rules may not conflict with each other (Contradiction in the laws).
f.
Regulations
may not contain demands beyond what can be done and cannot be fulfilled (Laws
Requiring the Impossible).
g.
Regulations
may not be changed frequently (Constancy of the Laws through Time).
h.
There
must be consistency between the promulgated rules and daily implementation
where the government must strictly implement these rules (congruence between
Official Action and Declared Rule).
In
international practice, several criteria have been determined for a statutory
regulation to be said to be a good statutory regulation.
CONCLUSION
After the amendment to the 1945 Constitution
resulted in a new format for the People
of Representatives (DPR), in which the role and authority of the DPR
became stronger than that of the President. Based on Article 20 Paragraph (1)
of the 1945 Constitution of the Republic of Indonesia, it is stated that the
People's Legislative Assembly holds power to form laws where there has been a
paradigm shift, especially in terms of making laws, which originally had more
power in the executive branch, now shifting towards the legislature. (Legislative
heavy). Article 5, Paragraph (1) of the 1945 Constitution of the Republic of
Indonesia states that the President has the right to submit Draft Laws to the People
of Representatives (DPR). With this shift, the President is not in full power
when forming laws. This shift is contained in the provisions of Article 5,
Paragraph (1). It is also reflected in Article 20 Paragraph (1), which states
that the People's Representative Council (DPR) holds the power to form laws.
This makes the People's Representative Council (DPR) more responsible for developing
rules. Therefore, the People of
Representatives (DPR) (DPR) has greater responsibility for the success
or failure of Legislation.
REFERENCES
Cahyani, I. (2021). HUKUM PELAYANAN PUBLIK DI INDONESIA.
SCOPINDO MEDIA PUSTAKA.
El-Muhtaj, M. (2017). Hak asasi manusia dalam konstitusi
Indonesia. Prenada Media.
HABSARI, Z. (2013). KEWENANGAN DEWAN PERS DALAM
PENYELESAIAN PELANGGARAN KODE ETIK JURNALISTIK DILIHAT DARI UNDANG-UNDANG NOMOR
40 TAHUN 1999 TENTANG PERS. UNIVERSITAS ANDALAS.
Jimly, A. (2009). Menuju Negara Hukum Yang Demokratis. Jakarta:
PT Bhuana Ilmu Populer.
Jumadi, J. (2016). MEMAHAMI KONSEP KONSTITUSIONALISME
INDONESIA. Jurisprudentie: Jurusan Ilmu Hukum Fakultas Syariah Dan Hukum,
3(2), 110�122.
Mahendra, Y. I. (1996). Dinamika tatanegara Indonesia:
kompilasi aktual masalah konstitusi, dewan perwakilan, dan sistem kepartaian.
Gema Insani Press.
Muhlashin, I. (2021). Negara Hukum, Demokrasi Dan Penegakan
Hukum Di Indonesia. Jurnal Al-Qadau: Peradilan Dan Hukum Keluarga Islam,
8(1), 87�100.
Pramita Sari, S. (2019). IMPLEMENTASI PASAL 70
UNDANG-UNDANG NO 5 TAHUN 2014 TENTANG APARATUR SIPIL NEGARA DALAM PENGEMBANGAN
KOMPETENSI ASN DITINJAU DARI PERSPEKTIF ISLAM (Studi Kasus Di Dinas Pendidikan
Kabupaten Bengkulu Utara). IAIN BENGKULU.
Qamar, N., Amas, K. S. Y. D., Palabbi, R. D., Suherman, A.,
& Rezah, F. S. (2018). Negara Hukum atau Negara Kekuasaan (Rechtsstaat
or Machtstaat). CV. Social Politic Genius (SIGn).
Rokilah. (2019). Dynamics of the Indonesia State of Law:
Between Rechtsstaat and the Rule of Law. Nurani Hukum, 2, 12.
Saldy, M. (2021). Resume Materi Hukum Tata Negara.
Santio, E., & Nasution, B. J. (2021). ANALISIS KEWENANGAN
PRESIDEN REPUBLIK INDONESIA DI BIDANG LEGISLATIF MENURUT UNDANG-UNDANG DASAR
NEGARA REPUBLIK INDONESIA 1945. Limbago: Journal of Constitutional Law, 1(1),
152�169.
Strong, C. F. (1960). Modern political constitutions: an
introduction to the comparative study of their history and existing form.
Sidgwick & Jackson.
Usman, A. H. (2015). Kesadaran hukum masyarakat dan
pemerintah sebagai faktor tegaknya negara hukum di Indonesia. Jurnal Wawasan
Yuridika, 30(1), 26�53.
