By: Yovi Oktaria, et al (Indonesian Young Yuris Research Team)
In the theory of parliamentary structure, there are three principles of representation that are known in the world, namely: political representation represented by the People’s Representative Council (DPR), territorial representation represented by the Regional Representatives Council (DPD), and regional representatives. functional (functional representation).
Table of Contents
The background of the formation of the DPD
- strengthen regional ties within the Unitary State of the Republic of Indonesia and strengthen national unity throughout the region
- Increase accommodation and aspirations, as well as regional interests in national policies relating to the state and regions
- encourage the acceleration of democracy, development and regional progress
- optimizing the function of regional envoys who were originally part or fraction of the MPR
Prof. Sri Soemantri gave his views on the reasons for the formation of the DPD, namely: First, the demand for filling members of the legislative body to be elected democratically by involving the voters. The existence of regional delegates and group representatives in the composition of the People’s Consultative Assembly (MPR) was replaced by the presence of the DPD. Second, as a forum to represent the voice of the regional people at the center in terms of determining national policies. There is a strong demand for separatism if the implementation of autonomy is not carried out.
Although its position is one of the state institutions that is parallel to the DPR, MPR, President, Supreme Court (MA), Constitutional Court (MK), even the Supreme Audit Agency (BPK), the DPD whose members are directly elected through elections, it turns out that in the constitution only a few are given. functions and powers. The initial goal of establishing a very noble DPD institution was not supported by the assignment of tasks that could strengthen the position of the DPD in parliament. In the constitution, article 22D of the 1945 Constitution of the Republic of Indonesia (UUD NRI 1945) states that the functions of the DPD are related to legislation, supervision, and budgeting related to regions, namely regional autonomy, central and regional relations, formation and expansion and amalgamation of regions, management of natural resources and economic resources as well as those relating to central and regional financial balance.
In the legislative process, the DPD has the authority to submit a draft law (RUU) and participate in discussing the bill on regional autonomy and other matters that have been regulated by the 1945 Constitution. Seeing the current situation which shows the weak role of the DPD, strengthening the authority of the DPD is a good thing to optimize the role of the DPD as regional representatives.
Efforts to strengthen the DPD had occurred in the decision of the Constitutional Court No. 92/2012, where in the decision the DPD can participate up to the second level of the discussion of the Law on autonomous regions, but this is not enough considering the important role of the DPD and the noble objectives of the DPD, it is necessary for the DPD to be given its fangs in the form of strengthening the authority of the DPD.
In Article 249 Paragraph (1) Letter J of Law Number 2 of 2018 the second amendment to Law 17 of 2014 concerning MD3, states that the DPD has the authority to; “monitoring and evaluating draft regional regulations and regional regulations.”
This is confirmed by the Constitutional Court’s decision No. 137/PUU-XIII/2015 and the Constitutional Court’s Decision No. 56/PUU-XIV/2016 which states that the authority of the Minister of Home Affairs and the Governor as the representative of the central government in canceling Provincial Perda, Regency/City Perda, Governor Regulation , and Perbup/Perwal unconstitutional or contrary to the Constitution. This means that the Constitutional Court has removed the authority of the Minister of Home Affairs to cancel regional regulations so that there is no longer an executive review. So that only the Supreme Court has the authority to annul Provincial Perda, Regency/City Perda, Pergub, and Perbup/Perwal.
The decision of the Constitutional Court also has an impact on the duties of the DPD and the Minister of Home Affairs as representatives of the central government, which will have the same function and authority in terms of monitoring and evaluating Raperda and Perda. The decision has implications for potential conflicts and overlapping authorities in supervising and evaluating Raperda and regional regulations between DPD and the Minister of Home Affairs. Local governments will be hampered if the results of supervision from the DPD and the Minister of Home Affairs overlap with each other. Because in Law No. 2 of 2018 concerning MD3, article 249 paragraph (1) there are no clear rules regarding the scope of supervision, the results of supervision and the form or legal force of supervision carried out by the DPD.
In Article 240 of the DPD RI Regulation Number 3 of 2018 concerning Orders, it only explains the purpose of monitoring Raperda and local regulations including activities:
- collecting data to obtain information on draft regional, district and city regulations and regional regulations;
- working meetings with regional governments and/or provincial, district and city DPRDs, including local stakeholders; and
- working visits to local governments and/or provincial, district, and city DPRDs, including local stakeholders.
Meanwhile, the evaluation of regional regulations and regional regulations includes the following activities:
- Evaluation of draft Regional Regulations and Regional Regulations as referred to in Article 239 paragraph (3) includes analysis of provincial, district, and city draft Regional Regulations and Regional Regulations.
- Evaluation results are reported in the plenary session as recommendation material.
- The recommendations as referred to in paragraph (2) shall be submitted to the DPR, the Central Government, and/or regional governments according to their respective authorities.
- DPD prepares guidelines regarding evaluation of draft Regional Regulations and Regional Regulations.
First, as an effort of the DPD in the context of harmonizing regional regulations. One of the important problems in the formation of laws and regulations is the disharmony of substance between one regulation and another. Even in 2016, there were 3,143 regional regulations that were canceled by the Minister of Home Affairs, because these regulations were considered to hinder the acceleration in facing increased investment and also hampered the spirit of diversity and national unity.
The number of problematic regional regulations that contradict higher laws and regulations illustrates the need for efforts to increase supervision of Raperda and regional regulations both preventively and repressively.
Preventive supervision is carried out in order to perfect a legal product from the formed regional regulations. Through this method, deficiencies or errors in the procedures for making regional regulations will be seen in the articles. Meanwhile, repressive supervision is carried out after the ratification of the regional regulations in question.
Second, there is control from the central government to local governments, or called executive abstract preview. Regarding regional regulations as legislative products in the regions, they should only be “previewed” by the superior government if their status is still as a draft regional regulation that is not yet binding on the public. With the executive preview, you can:
prevent the enactment of a regional regulation that is contrary to the will and logic of the people,
prevent the issuance of a regional regulation that is contrary to the law,
avoid the birth of hyper regulation.
If the regional regulation is binding on the general public, then it is better if the judiciary as a third party is not involved in the process of forming the relevant regional regulation in accordance with the system adopted and developed according to the 1945 Constitution, namely the “centralized model of judicial review”, not the centralized model of judicial review. “decentralized model”, as specified in Article 24A paragraph (1) and Article 24C paragraph (1) of the 1945 Constitution.
Third, with the monitoring and evaluation of the DPD, it will facilitate the performance of the Ministry of Home Affairs to supervise regional regulations and draft regional regulations. Supervision will be more detailed, because it is carried out by two state instruments at once. So there will be many options, inputs and considerations that can be formulated.
Fourth, because the DPD has a very important role, it is necessary to strengthen its authority. According to Jimly Ashidiqqie, the DPD has a role to strengthen regional ties, strengthen national unity throughout the region, increase accommodation for the aspirations of regional interests in the formulation of national policies and encourage the progress of regions in harmony, meaning that regional progress is balanced with one another.
Implications of the monitoring and evaluation of regional regulations and regional regulations by the DPD.
Monitoring and evaluation can be carried out if the regulation has not been promulgated and is still a draft regional regulation. Then, the DPD can provide recommendations on the draft regional regulation that is being formulated. The recommendations submitted by the DPD RI will become a new perspective regarding the relationship between the center and the regions in legislation. Furthermore, it provides direction for members and institutions to formulate monitoring targets. Then with a comprehensive study so that it can be politically justified.
If the Draft Regional Regulation has been ratified into a Regional Regulation, then the recommendations given by the DPD can be submitted to the DPR and the President to see the need for laws and regulations that are in accordance with the conditions of the people in the region. Then it can also provide input to the Judiciary institution, in this case the Supreme Court to annul local regulations that conflict with statutory regulations.
This is in accordance with Article 22D paragraph (3), regarding the supervisory function possessed by the DPD, namely “DPD can supervise the implementation of laws concerning: regional autonomy, central and regional relations, formation and expansion as well as regional mergers, resource management natural resources and other economic resources, implementation of the state revenue and expenditure budget, taxes, education, and religion and submitting the results of their supervision to the DPR as consideration for follow-up”.
Based on the article, the object of supervision of the DPD is limited to the implementation of laws related to the region, so that the supervisory function of the Regional Representative Council (DPD) does not touch the material content of the implementing regulations of the Act.