RJOAS April 2025
by
Hamimah Siti, Doctoral Candidate
Fadli M., Professor
Widiarto Aan Eko, Kusumaningrum Adi, Lecturers
Faculty of Law, University of Brawijaya, Malang, Indonesia
The duties and authorities of regional heads, including regents, are clearly depicted in terms of their role in regional policy activities, including the formulation of regional regulations, regent regulations, regional head decisions, and actions taken in urgent situations. This type of research is classified as socio-legal research. The author employs a legal sociology approach and a statutory approach. The legal sociology approach is a method for understanding law within a social context. The statutory approach, as explained by Peter Mahmud Marzuki, suggests that researchers need to understand the hierarchy and principles within legislative regulations. The urgency of establishing a regent regulation is high, as it is conceptually impossible for a regional regulation to function as an independent regulation without being connected to other rules such as the regent regulation. The regent regulation is valid for use in implementing a regional regulation, as it is delegated from the regional regulation, which is a higher and more general rule. Thus, a regent regulation loses its meaning when it contradicts the regional regulation it is meant to uphold.
The study of regional legal products, including regional regulations and their derivatives (decisions/regulations of regional heads), is inherently aligned with the concept of regional autonomy. The discourse and debate regarding regional autonomy have actually been ongoing for a long time, even before Indonesia’s establishment, both de facto and de jure (Prasetio, 2022). The close relationship between the discourse of regional autonomy and that of regional legal products cannot be separated from one another.
Historically, the existence of regional governance and regional legal products has been recognized since the era of ancient kingdoms, through the colonial period, and up to the present. Therefore, in examining several legal events that have occurred, organized chronologically, the historical dynamics of the existence of regional legal products in Indonesia are revealed in several eras as follows: 1. The colonial era; 2. The liberal democracy era; 3. The guided democracy era; 4. The new order era; and 5. The reform era to the present.
The authority to establish a regional regulation (verordening) was introduced in 1903. This reflects that, although regional regulations at the time were limited to regional financial matters, the concept of regional regulations as an inseparable part of decentralization has actually existed since 1903 during the Dutch East Indies period.
A modern state governed by law divides state power to ensure accountable governance and prevent arbitrary actions. Governmental power is divided into legislative, executive, and judicial branches, based on the constitutional arrangements of each country. One aspect of state governance is carried out by the government in exercising narrow administrative duties, which involves the relationship between the executive body as a legal entity and its citizens. This relationship is formed when public decisions are made to regulate and govern citizens, which at times may encroach upon private matters. The government begins to regulate the relationship between the government body and its citizens through a public decision, thus creating a higher relationship than that of the citizens. Therefore, the government has the authority to regulate the behavior of its citizens.
In line with regional autonomy, where local governments have the freedom to manage their own affairs, regional governments are granted the authority to regulate their citizens' affairs in the implementation of regional autonomy and delegated government duties.
According to Prinds, the authority to regulate arises from the existence of power. Prinds asserts that the authority to form public legal products cannot be created without proper authority (Prinds & Adisapoetra, 1982). This authority must be based on the principle of legality, grounded in laws such as the constitution and statutes. Prinds emphasizes that the authority held by the government originates from the constitution or in the context of a state governed by law, that government officials must act based on the law to uphold the rule of law (Prinds & Adisapoetra, 1982).
On one hand, in exercising public authority, governments must always comply with the prevailing law, while on the other hand, they must also be granted the authority to create their own regulations (Prinds & Adisapoetra, 1982). Furthermore, considering the powers of government officials in executing state administrative tasks, regulatory functions (regelen) are inherent alongside governance functions (besturen) (Manan, 2003). Thus, it can be stated that every government, including local governments, indeed has regulatory authority.
Power, authority, and competence are terms often considered synonymous. These three terms can be used in general government affairs or for the creation of legal regulations, which are part of general government affairs. Suwoto, using the term power, states that power can be obtained in two ways: through attributive power and derivative power (Mulyosudarmo, 1997).
In the context of Indonesia, for granting power to the head of the region (in this case, the regent), based on the 1945 constitution of the republic of Indonesia, the regent obtains attributive power as the head of the region, one of which is the authority to establish regional regulations and other regulations (regulations of the regional head and/or decisions of the regional head) in order to implement regional autonomy and delegated duties.
In contrast, S. Prajudi Atmosudirjo defines power as the translation of "power" (English) or "macht" (Dutch). Prajudi’s definition leans toward power derived from the separation of sovereignty, as in the separation of powers doctrine. Simplistically, Prajudi believes the term "power" more accurately describes executive power, legislative power, and various powers resulting from the separation or division of powers (Atmosudirjo, 1995).
Bagir Manan, in his book, states that "the use of the term 'bevoegdheid' in the public law concept is commonly equated with authority, which refers to power granted by or based on law, also known as legal authority. Within 'bevoegdheid,' there is the meaning of the ability to do or not do something based on one or several legal provisions. In 'bevoegdheid,' acts of doing or not doing are not for oneself, but are directed toward others, such as the authority to govern and the authority to regulate" (Manan, 2012).
Based on the above explanation, it can be concluded that the source of authority for a regent in forming a regent regulation comes from both attributive and delegative delegations. This is clearly stated, as the regent, as the head of the region and the regional government organizer, is granted attributive authority to form and enact regional regulations and other regulations as mandated by the 1945 constitution of the republic of Indonesia, the regional government law, and the law on the formation of laws and regulations. Furthermore, the regent’s authority is also obtained delegatively, when a regional regulation, jointly established by the head of the region and the regional people's representative council (DPRD), instructs further regulation in the form of a regent regulation.
Based on the duties and authorities of the regional head, including the regent, it is clearly depicted that the role of the regent is crucial in various activities related to policies in the region, whether in the form of regional regulations, regional head regulations, decisions of the regional head, and actions taken in urgent situations. The duties and authority held by a regent inherently come with accountability for the execution of their tasks and powers. This aligns with legal accountability in the use of authority, which is one of the principles of the rule of law, namely ‘geen bevoegdheid zonder verantwoordelijkheid’ or ‘no authority without responsibility’ (no authority without accountability) (Ridwan, 2018). The principle of accountability of authority, as a fundamental principle of the rule of law, suggests that when authority is granted, there is an inherent responsibility attached.
From the above explanation, the researcher is interested in conducting a comprehensive study to analyze the urgency of the establishment of regent regulations and the supervision of regent regulations as delegated regulations based on the regional regulations. This research aims to analyze the level of urgency of the existence of regent regulations and the supervision of these regulations as delegated regulations derived from the regional regulations.
This type of research is socio-legal (juridical sociological) research. According to Mukti Fajar (Fajar & Ahmad, 2013), socio-legal research is based on normative legal science (laws and regulations) as law in books, and then adjusted and compared with the realities that occur in the field (law in action). This means that, in addition to examining and analyzing the research object from the perspective of positive law, it also examines legal phenomena in society or social facts.
In order to analyze the legal issues in this research, the author uses both a socio-legal approach and a statutory approach. The socio-legal approach is a method for understanding law within a social context. The perspective applied is not only on formal rules but also informal rules. The desired outcome from research with a socio-legal perspective is to explain and connect, test, and also critique the operation of formal law within society. This approach encompasses several concepts, including objectivity, using inductive logic, synthesis, generalization, and data construction, both quantitative data through statistics and qualitative data through in-depth interviews, in order to capture the uniqueness of society or "thick description" (Banakar & Travers, 2005). Meanwhile, the statutory approach (statute approach), as Peter Mahmud Marzuki mentions, indicates that in this method, the researcher needs to understand the hierarchy and principles within the regulations (Marzuki, 2017). Article 1, paragraph 2 of law no. 12 of 2011 on the formation of laws and regulations states, "legislation is written regulation containing legal norms that are generally binding and established or determined by state institutions or authorized officials through procedures set out in legislation." this is further emphasized by Peter Mahmud Marzuki, who explains that the statutory approach involves using legislation and regulation (Marzuki, 2017).
Amid the dynamics of democracy in the era of regional autonomy, regional regulations appear to be the most frequently questioned, second only to disputes over the regional head election. This is understandable, considering that article 18, paragraph (6) of the 1945 constitution of the republic of Indonesia stipulates that, in the implementation of autonomy and delegated duties, regional governments are authorized to establish regional regulations and other regulations. Given this, one can imagine the sheer number of regional regulations produced in Indonesia each year, with 33 provinces and 265 cities/regencies.
The implementation of regional autonomy in Indonesia aims to achieve two main objectives: first, the equitable welfare of the people, and second, the acceleration of democratization at the regional level. It is within this context that regional regulations play a significant role, as they serve as tools to realize these two visions. However, as the volume of regional legal products continues to increase due to Indonesia's vast geographical expanse, the issue of effective oversight of these legal products has become increasingly prominent. Most discussions so far have centered around regional regulations. Naturally, the formation of regional regulations often attracts attention, as they are tangible products of regional democratic dynamics, formed by two institutions directly elected by the people through local elections. However, there is another form of regional regulation that requires serious attention in terms of oversight: the regional head regulation, which is a delegated regulation resulting from the mandate of a regional regulation and within the authority of the regional head to establish and enforce it.
Oversight is a crucial aspect in the implementation of the regional autonomy system. To achieve good governance, the key lies in maintaining a harmonious and well-coordinated relationship between different levels of government. Therefore, the central government must provide guidance and supervision over regional governance. Oversight is part of the overall governmental authority, as the central government holds the responsibility for ensuring the smooth operation of both national and regional governance. This rationale justifies the need for oversight over regional actions, as the unity of the nation-state must be preserved systematically and integrally (Soedjito, 1983). The scope of central government oversight over regional governance includes: (1) oversight of the implementation of government affairs at the regional level (including both autonomy and delegated duties); and (2) oversight of legal products established by regional governments, namely regional regulations and regional head regulations.
To analyze the urgency of oversight over regional head regulations, this can be examined from several perspectives: the perspective of regional autonomy, legal certainty, and legislative science.
First, from the perspective of regional autonomy, the implementation of regional autonomy, granted by the central government and effectively executed since January 1, 2000, has led to two simultaneous impacts: positive developments toward progress and negative aspects or shortcomings. There are at least two notable positive effects of regional autonomy, as noted by Sirajuddin et al. (2016): first, the development of regional initiatives and creativity to advance their areas and compete with other autonomous regions. With the freedom to plan their own development, regions can utilize their potential for the welfare of their people. Second, there has been a growing sense of relative independence of regions from the central government in addressing local issues. Local problems can now be solved at the regional level using local methods and by local people.
In addition to the positive effects, the implementation of regional autonomy has given rise to several negative phenomena, which undoubtedly harm the local population. These negative phenomena include: first, widespread practices of corruption, collusion, and nepotism, the sale of positions, and money politics; second, unprofessional bureaucracy, especially in administration and public services, which often receive complaints from the public for inefficiency. In some cases, these issues are exacerbated by mechanisms based more on nepotism, along with other negative phenomena that increasingly hinder the core goals of regional autonomy.
Given the potential negative impacts of regional autonomy granted by the central government, oversight is necessary. Oversight serves as one of the instruments to minimize the negative effects of regional governance. According to Jazim Hamidi and Mustafa Lutfi, there are at least four empirical issues that highlight the urgency of conducting oversight in regional governance:
- Centralization of power in the relationship between the center and the regions obstructs oversight;
- The large number of oversight institutions at the regional level, coupled with unclear division of tasks and functions, and in some cases, overlapping responsibilities;
- A lack of synergy in coordination between regional oversight institutions, with institutional egoism emerging among them; and
- The placement of human resources in oversight institutions is not based on professional considerations, with relatively weak or inadequate personnel quality (Hamidi & Lutfi, 2011).
Oversight acts as the "binding" force to ensure that regional autonomy does not deviate too far, thus reducing or even threatening national unity. However, if oversight is applied too rigidly, it may "restrict" decentralization. Therefore, oversight must be accompanied by limitations, including its form, procedure, and the institutions responsible for conducting it (huda, 2007). This principle also applies to the oversight of regional legal products, including regional head regulations. The formation and implementation of regional head regulations should be subject to oversight to ensure that the regulations remain within the framework of regional autonomy and do not deviate from its true purpose.
Second, from the perspective of legal certainty. As mentioned earlier, the regional head regulation, as a delegated regulation for the implementation of a regional regulation, plays an important role in establishing the foundation for regional governance through technical regulations. It can be argued that the regional head regulation serves as a technical guideline that elaborates on the general provisions of a regional regulation. It would be impractical to rely solely on regional regulations for the implementation of regional autonomy, as the challenges are too complex and intricate. Therefore, regional head regulations are needed to interpret and clarify the points in the regional regulation. This ensures that the abstract concepts within the regional regulation are made more concrete through the technical rules found in the regional head regulation.
This aligns with the legal certainty theory presented by Jan M. Otto and quoted by Fernando M. Manullang, which states that legal certainty in certain situations requires several conditions:
- Clear, consistent, and easily accessible legal rules issued by state authorities;
- Consistent application of these rules by governing institutions, which must also comply with them;
- Broad public agreement on the content of these rules, leading people to align their behavior with them;
- Independent and impartial judges applying these rules consistently when resolving legal disputes; and
- Concrete enforcement of judicial decisions.
These five conditions indicate that legal certainty can be achieved when the legal substance aligns with society's needs. A legal system that creates certainty must reflect the culture of the society it serves. True legal certainty (realistic legal certainty) requires harmony between the state and the people in their understanding of the legal system (Nur, 2023).
The author argues that point (b), which states that governing institutions must apply legal rules consistently and comply with them, relates directly to the urgency of oversight over regional head regulations. It is essential for local governments (specifically, the regional head) to establish regional head regulations as mandated by the regional regulation, ensuring legal certainty by adhering to the provisions in the law. The central government must oversee this process to ensure that the local government complies with the regional regulation's mandates.
Finally, from the perspective of legislative science, as discussed earlier, the formation of regulations should adhere to legal principles. Legal principles serve as the foundation for creating concrete legal norms and implementing laws. Van Der Viles, in his book het wetsbegrib en behoorlijke regelgeving (quoted by Maria Farida Indrati Soeprapto, 2006), distinguishes between formal and material legal principles.
Formal principles include:
- The principle of clear objectives;
- The principle of the appropriate organ/institution;
- The principle of necessity;
- The principle of enforceability; and
- The principle of consensus.
Material principles include:
- The principle of correct terminology and systematic;
- The principle of recognition;
- The principle of equality before the law; and
- The principle of justice in legal implementation.
The effective realization of these principles is crucial in the formation and implementation of regulations.
The existence of the regent's regulation as a delegated regulation derived from regional regulations can be concluded to have a high level of urgency for its establishment and formulation by the regent. This is because, conceptually, it is impossible to consider regional regulations as an independent or standalone regulation without being linked to other regulations, such as the regent's regulation. The regent's regulation holds valid authority to be used as an implementer of a regional regulation, as it receives delegation from the higher and more general regional regulation. Therefore, the regent's regulation would lose its meaning if it were not in alignment with the corresponding regional regulation. This situation indicates that there is a very close relationship between regional regulations and regent’s regulations; that is, a regent’s regulation will exist if there is a corresponding regional regulation. In this context, the regional regulation, as the primary regulation, will have executive power when the regent’s regulation is formed. Conversely, the absence of the regent’s regulation would make it very difficult for the regional regulation to be implemented.
To ensure this, there is a correlation with the importance of supervision over regional regulations and regent's regulations in a region. The urgency of establishing such supervision can be seen through three basic concepts: regional autonomy, legal certainty, and legislative theory. First, to ensure that the provisions in the regional regulation and the regent's regulation remain within the framework of regional autonomy and do not deviate significantly from the objectives of regional autonomy, supervision is necessary. Second, to ensure legal certainty, supervision is required to ensure that the provisions in the regional regulation and the regent's regulation are clear, consistent, accessible, and that government agencies implement these legal provisions consistently, adhering to and complying with them. Third, to ensure the principles of good legislative formulation, supervision plays a crucial role in the creation and implementation of the regent’s regulation.
Original paper, i.e. Figures, Tables, References, and Authors' Contacts available at http://rjoas.com/issue-2025-04/article_04.pdf