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The Ruling That Gives a Burden
The Constitutional Court building (Mahkamah Konstitusi or MK). Image: TEMPO/Wahyu Setiawan
Monday, 10 April, 2017 | 05:26 WIB
The Ruling That Gives a Burden

TEMPO.CO, Jakarta - The ruling of the Constitutional Court (MK) that revokes the authority of Minister of Home Affairs to annul regional laws is regrettable.

So far, the authority of the Home Affairs Minister is considered a breakthrough in addressing regional laws that inhibit bureaucracy in terms of investment, taxes, and retributions.

Consequently, Home Affairs Minister no longer has a legal basis when he will revoke regional laws that are not in harmony with higher laws.

This is what should have been the consideration of the Constitutional Court in making a ruling of a case two days ago because the authority of Home Affairs Minister to revoke troubled regional laws quickly is still needed so far.

The fact remains that Home Affairs Minister now does not have authority to revoke troubled regional laws. The authority to revoke troubled regional laws is not within the Supreme Court.

It can be said that the stand of MK is vague and divided.

Four out of eight judges had a dissenting opinion. It means those with a dissenting opinion. It means judged had different opinions in responding to Law Number 23 of 2014 on Regional Governments, especially article 251 that has so far become the legal basis of Home Affairs Minister in revoking troubled regional laws.

Come what may, the ruling of the MK is binding and has to be enforced.

Afterwards, the process of revoking troubled regional laws can only be done in two ways: through a judicial review to the Supreme Court and through a mechanism at the House of Representatives (DPR).

The legislative mechanism means: the government and the regional councils can formulate a new regional law to replace the troubled regional law.

The judicial review pieces is clearly not as easy as when Home Affairs Minister Proses revoked a regional law deemed a troubled one. The process at MA can take a long time because there are so many cases to be handled, especially if there are thousands of troubled regional laws that are waiting to be processed one by one.

Clearly, if the way to the MA is taken, Home Affairs Minister should process first which regional laws that are categorize as troubled regional laws.

There are so many troubled regional laws.

Non-government organization Setara Institute reported there are 2,246 regional laws that were revoked in the period of 2002-2009. In the period of 2010-2014, as many as 1,502 regional laws were annulled.

Last year, Home Affairs Minister Tjahjo Kumolo revoked 3,143 troubled regional laws. There are so many regional laws that have been revoked and as if they are always growing.

The emergence of troubled regional laws cannot be separated from the formulation process, among other minimum public participation, even without comprehensive studies.

There are also some regional laws that were ‘ordered’ as requested by constituents as a compensation of the promise of legislative members or regional leaders during campaign period.

This method has been going for years.

If that is the fact, the central government should be serious to be involved in the process of deliberating drafts of regional laws.

The formulation of regional laws is within the domain of executive review or the government’s authority, that ensures that a regional law is not against a higher law.

This should be done before a regional law is enacted, instead of reacting after the regional law is enacted.

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