Video summary

Prof. Dr. Wicipto Setiadi, S.H., M.H. - LANDASAN KONSTITUSIONAL PEMBENTUKAN PERATURAN PER-UU

Main summary

Key takeaways

Educational

Main ideas and lessons conveyed

  • Every Indonesian law/regulation must have a constitutional basis rooted in the 1945 Constitution (the “basis/constitutional basis for the formation of legislation”).

  • Legislative power is shared between:

    • DPR (House of Representatives) and
    • President (executive), reflecting a broader theory of separation/division of state powers (as discussed by John Locke and Montesquieu, where lawmaking is assigned to the legislative branch).

  • The video emphasizes how constitutional articles determine:

    • which institution proposes bills,
    • how bills are jointly approved,
    • when a bill becomes law automatically if the President does not ratify in time.
  • It also explains:
    • types of regulations explicitly mentioned in the 1945 Constitution,
    • the basis of validity (philosophical, sociological, juridical),
    • principles for choosing legal bases (e.g., lex rules).

Constitutional basis for forming legislation: institutions and relevant articles

1) DPR (House of Representatives)

  • Constitutional authority: DPR holds the power to form laws.
  • Articles cited:
    • Article 20 paragraph (1): DPR holds power to form laws.
    • Article 21: DPR members have the right to submit bills.

2) DPD (Regional Representative Council)

  • Constitutional authority: DPD can submit bills related to regional matters to the DPR.
  • Article cited:
    • Article 22D paragraph (1): DPD may submit bills to the DPR regarding matters related to the region.

3) President

  • Constitutional authority: the President has the right to submit bills to the DPR.
  • Article cited:
    • Article 5 paragraph (1): President has the right to submit a bill to the DPR.

Joint lawmaking mechanism (DPR + President)

Main procedure described

  • Bills are discussed by DPR and President to obtain joint approval.
    • Article 20 paragraph (2)
  • If no joint approval is reached, the bill cannot be resubmitted in that DPR session.
    • Article 20 paragraph (3)
  • After joint approval, the President ratifies the bill into law.
    • Article 20 paragraph (4)
  • Automatic validity if not ratified in time:
    • If the President does not ratify within 30 days from joint approval, the bill is still valid as law and must be enacted.
    • Article 20 paragraph (5)

Key lesson stressed

  • The video highlights that, with constitutional amendment, lawmaking power shifts fundamentally toward DPR as the main holder of lawmaking power.

Differences before vs. after constitutional amendments (Article 5)

Before amendment (as described)

  • President holds power to form laws with DPR approval.

After amendment (as described)

  • Article 5 paragraph (1) changed to: President has the right to submit a bill to DPR.
  • Article 20 paragraph (1) changed so that DPR holds power to form laws.

Result emphasized: authority moves from President-centered approval toward DPR-centered lawmaking power.

Other constitutional authorities (President-centered)

A) Government Regulation in Lieu of Law (Perppu)

  • Constitutional basis described:
    • In urgent circumstances, the President can determine Perppu before a decision by the Constitutional Court.
  • Conditions (“parameters”) for urgency (as listed):
    1. Urgent need to quickly resolve legal problems by law.
    2. The required law does not yet exist → creating legal vacuum, or existing law is inadequate.
    3. The legal vacuum cannot be overcome through normal lawmaking procedures because it would take too long, while urgency requires immediate legal certainty.
  • Constitutional Court decision referenced (example for developing urgency criteria):
    • Decision Number 138/PUU-VII/… (subtitle appears misread: “138/puu 8 Sorry 7 Roman 2009”). Exact Roman numeral/format is unclear due to subtitle errors.

B) Government Regulations (Peraturan Pemerintah / “PP”)

  • Article cited:
    • Article 5 paragraph (2): President determines PP to implement laws.

C) Presidential Regulations (Peraturan Presiden / “Perpres”)

  • Article cited:
    • Article 4 paragraph (1): President holds government power according to the Constitution (used as the basis for issuing Presidential Regulations).

D) Regional Regulations (Peraturan Daerah / “Perda”)

  • Article cited:
    • Article 18 paragraph (6): regional government has the right to determine regional regulations and other regulations to implement autonomy and assistance tasks.

Laws/regulations referenced for completeness (statutory framework)

  • For a clearer/more complete explanation, the video points to:
    • Law No. 12 of 2011, as amended by:
      • Law No. 15 of 2019, and again by
      • Law No. 13 of 2022.

Basis for validity of regulations (three bases)

1) Philosophical basis

  • Tied to Indonesia’s legal ideals:
    • Pancasila
    • Preamble of the 1945 Constitution

2) Sociological basis

  • Regulations are formed to meet societal needs.
  • Focuses on empirical facts about societal/state problems and needs.

3) Juridical basis

  • Reasons/considerations showing the regulation is formed to:
    • overcome legal problems, or
    • fill legal gaps, by considering existing rules and possibly the need for new rules.

Principles for legal basis selection

The video lists principles/rules on which legal bases may be used and how to resolve conflicts:

  • A law/regulation’s legal basis must be based on laws/regulations, not on other forms such as:

    • Constitutional Court decisions
    • other judicial decisions (i.e., these are not substitutes for the “legal basis” framework described)

  • Only certain legislation types can be used as a legal basis (though in practice application may be inconsistent).

  • Conflict resolution principles (lex rules):
    • Lex posterior derogat legi priori: a newer regulation overrides an older one.
    • Lex superiori derogat legi inferiori: a higher-level regulation overrides a lower-level one.
    • Lex specialis derogat legi generali: a more specific regulation overrides a general one.
  • Revocation/modification rule by equivalence or hierarchy:
    • A currently valid regulation can be revoked or changed only by regulations of equal or higher level.
  • Some legislation types are regulated outside Article 7 paragraph (1) of Law 12/2011
    • The video directs viewers to Article 8 of Law 12/2011 for other types besides those listed in Article 7 paragraph (1).

Practical guidance: “Remembering” clause approach (dasar mengingat)

The video explains a method for identifying constitutional/legal bases when writing or researching the “Remembering” section of a law/regulation.

Step-by-step bullet method

  • Check the source institution that proposed/issued the regulation.
  • Determine which constitutional articles should appear in the “Remembering” clause:
    • If the law comes from DPR:
      • Use Article 20 and Article 21 (and related DPR-related constitutional bases).
      • The video notes: Article 5 paragraph (1) is for the government, so it is not included for DPR-sourced bills.
    • If the bill comes from the President:
      • Use Article 5 paragraph (1).
    • If related to Perppu:
      • Include the constitutional basis for “Remembering,” including Article 22 paragraph (1) (and other related laws/regulations).
    • If it is a Government Regulation (PP):
      • Use Article 5 paragraph (2) (and other related laws/regulations).
    • If it is a Presidential Regulation (Perpres):
      • Use Article 4 paragraph (1) (and other related laws/regulations).
    • If it is a Regional Regulation (Perda):
      • Use Article 18 paragraph (6).

Core consistency rule stressed: in principle, the “Remembering” clause should rely on the correct constitutional basis connected to the source/authority, though in practice other related rules may also appear.

Sources/figures explicitly mentioned

Speaker

  • Prof. Dr. Wicipto Setiadi, S.H., M.H. (course lecturer)

Theoretical / historical references mentioned

  • John Locke
  • Montesquieu

Legal references mentioned

  • 1945 Constitution of Indonesia, specifically:
    • Article 5 (paragraph (1) and (2))
    • Article 20 (paragraphs (1)–(5))
    • Article 21
    • Article 22D paragraph (1)
    • Article 4 paragraph (1)
    • Article 18 paragraph (6)
    • Also referenced: Article 22 paragraph (1) in the “remembering” examples (context influenced by subtitle errors).
  • Law No. 12 of 2011
    • amended by Law No. 15 of 2019
    • and Law No. 13 of 2022
  • Constitutional Court decision (partially unreadable in subtitles):
    • Decision No. 138/PUU 8 / (unclear roman numeral) / 2009 (subtitle text appears erroneous)

Other referenced material

  • The video title: “Landasan Konstitusional Pembentukan Per-UU” (constitutional basis for the formation of laws/regulations).

Original video