JENIS DAN TATA URUTAN PERATURAN PERUNDANG-UNDANGAN DI INDONESIA [BELAJAR HUKUM, SERI 006]

Summary

This lecture explains the hierarchy of legal regulations in Indonesia, using Hans Kelsen's pyramid theory of law. It explores how Indonesia's legal system is structured from the Constitution down to regional regulations. The lecture covers historical changes, such as the transition from a centralized to a decentralized system, and the evolving role of various legal instruments, including laws, government regulations (Perpu), presidential decrees (Perpres), and regional regulations (Perda). Key reforms in the legal framework are highlighted, along with the impact of political decisions on the legal hierarchy.

Takeaways

• 😀 The legal framework in Indonesia is based on a hierarchy of laws and regulations, starting from the highest level, which is the Constitution (UUD 1945).
• 😀 The hierarchy theory, introduced by Hans Kelsen, compares laws to a pyramid, where the highest norm is the 'norma dasar' or fundamental norm.
• 😀 Indonesia's Constitution, UUD 1945, holds the highest position in the legal system, with laws, regulations, and local ordinances structured beneath it.
• 😀 The hierarchy system ensures that lower regulations must align with higher regulations, preventing contradictions between them.
• 😀 Prior to 1966, Indonesia's legal hierarchy was not formalized, but was later structured by TAP MPR No. 20/1966, which standardized the hierarchy of laws.
• 😀 In 2004, Law No. 10/2004 on the formation of laws replaced TAP MPR regulations and introduced a more formal structure, later revised in 2011 with Law No. 12/2011.
• 😀 The politics of law influenced these changes, such as the removal of MPR (People's Consultative Assembly) as the highest state institution after the 1999-2002 amendments to the Constitution.
• 😀 The status of Perpu (Government Regulation in Lieu of Law) shifted in the hierarchy, initially placed below laws and now considered equal in status to laws after changes in the political structure.
• 😀 Presidential Decrees (Keppres) were initially included in the legal hierarchy but were later replaced by Presidential Regulations (Perpres) to clarify their role as general regulations, not individual decisions.
• 😀 Local regulations (Perda) were not explicitly included in the legal hierarchy until post-reform in 1999, with Law No. 22/1999 on regional autonomy, which gave local governments authority to create their own regulations.

Q & A

What is the main topic of this lecture?

The main topic of the lecture is the types and hierarchy of laws and regulations in Indonesia.

How many laws and regulations are there in Indonesia as of 2017?

As of 2017, the Ministry of Law and Human Rights reported that there were tens of thousands, possibly hundreds of thousands, of laws and regulations in Indonesia.

What is the 'hierarchy of laws' or 'tata urutan peraturan perundang-undangan'?

The 'hierarchy of laws' refers to the arrangement of laws and regulations in Indonesia based on their level of authority, starting from the highest, the constitution, down to lower-level regulations.

What is Hans Kelsen's 'pyramid theory' or 'Teori Piramida Hukum'?

Hans Kelsen's 'pyramid theory' posits that laws are structured like a pyramid, where the highest level is the constitution (norma dasar), followed by laws, regulations, and other legal norms in descending order of importance.

What is the role of the Constitution in the hierarchy of laws in Indonesia?

The Constitution of Indonesia, known as the 1945 Constitution (UUD 1945), is the highest legal norm in the country, forming the foundation of all subsequent laws and regulations.

How has the political environment affected the legal hierarchy in Indonesia?

Political changes, particularly the reform era after 1998, have led to shifts in Indonesia's legal hierarchy. For example, the position of the People's Consultative Assembly (MPR) was altered, and certain legal documents like MPR Decrees (TAP MPR) were removed or redefined in the legal hierarchy.

What are the key differences between the 2004 and 2011 laws regarding the hierarchy of laws in Indonesia?

The 2004 Law (Law No. 10/2004) did not include MPR Decrees in the hierarchy, whereas the 2011 Law (Law No. 12/2011) reintroduced MPR Decrees as part of the hierarchy. Additionally, the 2011 law also clarified the relationship between laws, government regulations, and presidential regulations.

What is the significance of Perpu (Government Regulation in lieu of Law) in the hierarchy of laws?

Perpu (Government Regulation in lieu of Law) is placed on the same level as laws in Indonesia's legal hierarchy. Initially, some legal frameworks placed Perpu below laws, but after political reforms, it was recognized as equivalent to laws due to its content, which often mirrors legislative action.

Why are Presidential Decrees (Keppres) no longer part of the legal hierarchy?

Presidential Decrees (Keppres) were removed from the hierarchy because they were considered individual, concrete decisions that do not have the same general, regulatory nature as laws or regulations. Instead, Presidential Regulations (Perpres) are used to address broader regulatory matters.

What role do regional regulations (Perda) play in Indonesia's legal hierarchy?

Regional regulations (Perda) were not initially included in the legal hierarchy but became important after the decentralization reforms. They are now recognized as a formal part of the legal framework, with different levels for provincial, district, and village regulations.