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Administrative Law Aspects in Regulatory Activities

Administrative Law Aspects in Regulatory Activities

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Administrative Law Aspects in Regulatory Activities

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  1. Administrative Law Aspects in Regulatory Activities Sectoral Administrative Law Session #6 Faculty of Law-Universitas Indonesia

  2. Forms of Regulation • Explicitly, 1945 Const. only stipulates several forms of regulation i.e. Law (Undang-Undang), Government Regulation in Place of Law (Peraturan Pemerintah Pengganti Undang-undang/ Perpu), and Government Regulation (Peraturan Pemerintah/ PP). • Based on Nawiasky's Theory on the Hierarchy of Legal Norms, the existence of state/administrative organs and Law 12/11, there are some other regulations that emerge and develop in constitutional/administrative practice in Indonesia. Faculty of Law-Universitas Indonesia

  3. Nawiasky’s Theory • State’s Fundamental Norm. • State’s Basic Law. • Statutes/Formal Laws/ Law in formal-procedural sense/ Primary or Original legislations. • Ordinance and Autonomous Statutes/ Law in material-substantive sense/ Quasi-legislations. Faculty of Law-Universitas Indonesia

  4. Application in Indonesia From a Nawiaskian perspective; • 1945 Const. Preambule is the Indonesian State's Fundamental Norm; • while (i) the body of 1945 Const.; (ii) Decision of the MPR; and, (iii) constitutional conventions are State's Basic Laws; • Laws passed by the President and the DPR are Formal Laws; and, • Other regulations that are substantively implementations and/or procedurally lower than Laws can either be Ordinance or Autonomous Statutes. Faculty of Law-Universitas Indonesia

  5. Formal Laws • Norms are specific and detailed. • contain sole or paired norms. • are legislative acts, based on legislative power. • are sources and bases for ordinance and autonomous statutes. Faculty of Law-Universitas Indonesia

  6. Ordinance Statutes • are Regulations that are formed by virtue of delegated legislation from Laws or other regulations higher in hierarchy. • the objective of delegated legislation is to implement legal norms of higher hierarchy. • example is GR 15/10 on Implementation of Spatial Planning, which is based on delegation from several articles in Law 26/07 on Spatial Planning. Faculty of Law-Universitas Indonesia

  7. Autonomous Statutes • are regulations formed as attributive legislation from Laws to administrative bodies. • the objective is to enable administrative bodies in exercising their authorities as stipulated in the Laws. • example is RR/Perda DKI Jakarta 08/07 on Public Order that is based on attributive authority given by Law 32/04 to the Governor and DPRD DKI Jakarta. Faculty of Law-Universitas Indonesia

  8. Definition of Regulation • Hence, Regulations are legal norms that are (i) GENERAL; (ii) ABSTRACT; and (iii) CONTINUAL. • The source is legislative power. • includes formal laws that are mutually adopted by President and DPR as the highest in hierarchy; and, • In lower hierarchies, other statutes adopted by administrative bodies based on attribution and/or delegation from the Laws. Faculty of Law-Universitas Indonesia

  9. Hierarchy in Indonesia • Laws and Govt. Reg in Place of Laws • Government Regulation • Regulation of the President • Regulation of Ministers • Regulation of the Head of Non-Ministry Govt. Inst. • Regulation of Director Generals • Regulation of other Govt. Inst. Faculty of Law-Universitas Indonesia

  10. In Regional Govt. • Provincial Regional Regulation • Regulation of the Governor • Regency/ Municipal Regional Regulation • Regulation of Regent/ Mayor Faculty of Law-Universitas Indonesia

  11. Undang-Undang • Highest regulation in Indonesia, originated directly from legislative power held by President and DPR vide 1945 Const. Art. 5.1 jo. 20. • Compared to State's Basic Laws, norms in UU are specific and detailed, hence can apply directly to/by public. Norms may be in sole or paired forms. • As the highest regulation in hierarchy, serve as sources and bases for both ordinance and autonomous statutes. Faculty of Law-Universitas Indonesia

  12. Perpu • Based on Art. 22 1945 Const. Perpu must be asked for endorsement from DPR in its following session, thus instantly change into UU. Therefore, Perpu is at the same level with UU, with the same function and subject matters. • The only difference is its temporal applicability. Perpu serves as a "temporary UU,” adopted by the President without asking DPR endorsement due to “coercive emergency situations.” Faculty of Law-Universitas Indonesia

  13. PP • PP is a delegated legislation, vide Art. 5.2 1945 Const., its only function is to implement UU. • PP may only be adopted if required by a Law. Its subject matters shall be the same with the delegating UU, but more specific and detailed. • Norms in PP can be regulating and/or a mix of regulating and deciding, but cannot be only deciding. Faculty of Law-Universitas Indonesia

  14. Perpres • Perpres is a delegated legislation from UU and PP. • However, based on interpretations to Art. 4.1 1945 Const. some experts argue that Perpres can also be autonomous, as a tool for the President to exercise its administrative authority as stipulated by the Constitution. • As with PP, norms in PP can be regulating and/or a mix of regulating and deciding, but cannot be only deciding. Faculty of Law-Universitas Indonesia

  15. Permen • Permen is a delegated legislation based on PP and/or Perpres. • All ministers are President's assistants in carrying out administrative duties. However, only technical ministries have the authority to regulate. • As with Perpres, Norms in PP can be regulating and/or a mix of regulating and deciding, but cannot be only deciding. Faculty of Law-Universitas Indonesia

  16. Reg. of Head/Chairperson of NMGI • Regulation of the Head/Chairperson of Non-Ministry Govt. Inst. is at the same level with Permen. • All NMGI usually have authority to issue regulation. The offices are usually occupied by Ministers ex officio. Faculty of Law-Universitas Indonesia

  17. Perdirjen • Perdirjen is a technical instruction/ guidelines to Permen. • Delegated authority is stipulated in regulations below UU. Faculty of Law-Universitas Indonesia

  18. Regulation of Other Govt. Inst. • Regulation of other Govt. Inst. i.e. Non-structural (administrative) bodies is an attributive delegation from relevant UU on the Inst. • Often times, such UU also explicitly delegates authority to regulate to this kind of regulation. • Authority to regulate is limited only to subject matters explicitly stipulated in the UU. Faculty of Law-Universitas Indonesia

  19. Regulations in Reg. Govt. • Perda can be attributive and/or delegated legislation, depends on subject matter. • Pergub/bup/wali is a delegated legislation as an implementation of Perda vide Art. 146 Law 32/2004. Faculty of Law-Universitas Indonesia