Volume 16 Number 1, January-March 2022: 65-80.

FIAT JUSTISIA. Faculty of Law, Universitas Lampung,

Bandar Lampung, Indonesia.
ISSN: 1978-5186 | e-ISSN: 2477-6238.
http://jurnal.fh.unila.ac.id/index.php/fiat

A Notion of Regulatory Reform

Zainal Arifin Mochtar

Universitas Gajah Mada, Indonesia

E-mail: zainalarifinmochtar@ugm.ac.id

Submitted: February 26, 2022; Reviewed: March 21, 2022; Accepted: March 27, 2022

Article Info Abstract

Keywords: The types and hierarchies of laws and regulations
Governance; Hierarchies of are constantly changing. Law Number 12 of 2011,
Regulations; Regulatory Reform. as amended by Law Number 15 of 2019, leads to
several problems. This research aims to analyse
DOI: Indonesia's laws and regulations regarding their
10.25041/fiatjustisia.v16no1.2431 types and material contents. This is normative legal
research employing statutory, historical, and
conceptual approaches. The findings of this study
are as follows. First, TAP MPR should not be
classified into laws and regulations as stipulated by
Law Number 12 of 2011, as MPR can no longer
issue any regulations after the amendment of the
1945 Constitution. Another problem lies in the
absence of review if laws and regulations deviate
from TAP MPR. Second, it is essential to restrict
Perppu, particularly when issuing it. The President
can issue Perppu at will, for there is no definition
of compelling exigencies. It should merely be issued
during the recess periods of DPR. Third, there is no
difference between Government Regulations and
Presidential Government content. Fourth, other
regulations, especially Permen, prove problematic
due to the silo mentality, so that they conflict with
each other and even overlap higher regulations.

A. Introduction
Norms are standards of behaving in social and environmental
interactions.1 Types of norms are both written and unwritten. Written legal
norms are hierarchical. 2 All regulations in a state as the result of law-making

1 Maria Farida Indrati, Ilmu Perundang-Undangan (Legislation Theory) (Yogyakarta:

Kanisius, 1998), p. 6.
2 According to the Stuffenbau Theory, cited by Hans Kelsen, there is a normative order in

which the reason for the norm's validity is of a higher norm. As expressed by Kelsen, the
higher norms and the hierarchy in the various levels of the norms creates the norms; Hans
65
A Notion of Regulatory Reform Zainal Arifin Mochtar

are called laws and regulations. 3 The 1945 Constitution does not stipulate the
hierarchy of laws and regulations in Indonesia, including their types,
material contents, and making.4 It does not call itself the supreme law of the
land explicitly. The stipulation of laws and regulations can be found in the
law.5
Laws and regulations constitute statutory laws made by state institutions
or officials. The authority is granted through attribution or delegation of
power.6 The types and hierarchy of laws and regulations are:
a. The 1945 Constitution
b. People's Consultative Assembly Decrees (TAP MPR)
c. Laws/ Government Regulations in Lieu of Laws (Perppu)
d. Government Regulations (PP)
e. Presidential Regulations (Perpres)
f. Provincial Regulations
g. Regency/Municipal Regulations7
TAP MPR are considered laws and regulations between the 1945
Constitution and Laws. 8 After the amendment, the 1945 Constitution merely
grants MPR three authorities, including amending the constitution,
inaugurating the President, and discharging the President. There are several
problems in the hierarchy, material contents, and making process.9 TAP
MPR was derived from the status of MPR as the manifestation of the
people.10 The change in the authorities of MPR has impacted its law-making
power.11 MPR can no longer make laws and regulations but the constitution.

Kelsen, General Theory of Law and State (Cambridge: Harvard University Press, 1949), p.
24.
3
Indrati, Ilmu Perundang-Undangan (Legislation Theory), p. 3.
4 The 1945 Constitution only stipulates the legislative process in Article 20. The President

stipulates Government Regulations in Article 5 paragraph (2). Furthermore, the President has
the right to enact Perppu (Article 22 paragraph (1)). Local governments can issue regional
regulations (Article 18 paragraph (6)).
5 Even though Law Number 12 of 2011 on Law-making has been amended by Law Number

15 of 2019, there is no change in the material contents, so Law 12/2011 still serves as the
primary basis.
6 I Gde Pantja Astawa and Suprin Na’a, Dinamika Hukum Dan Ilmu Perundang-Undangan Di

Indonesia (Bandung: PT Alumni, 2012), p. 52.

7 Article 7 paragraph (1) of Law Number 12 of 2011 on Law-making
8 Nisrina Irbah Sati, “Ketetapan MPR Dalam Tata Urutan Peraturan Perundang-Undangan Di

Indonesia,” Jurnal Hukum & Pembangunan 49, no. 4 (2019): 834–46,

https://doi.org/10.21143/jhp.vol49.no4.2343.
9 Article 3 of the 1945 Constitution
10 Putu Ayu Anastasia Wierdarini, “Tinjauan Yuridis Terhadap Pengembalian Kewenangan

Istimewa Majelis Permusyawaratan Rakyat Melalui Perubahan Undang-Undang Dasar

Negara Republik Indonesia Tahun 1945,” Jurnal Yuridis 5, no. 1 (2018): 142–59,
https://doi.org/10.35586/.v5i1.320.
11 Bivitri Susanti, “Menyoal Jenis Dan Hierarki Peraturan Perundang-Undangan Di

Indonesia,” Jentera: Jurnal Hukum 1, no. 2 (2017): 128–43,

https://35.240.241.163/index.php/jentera/article/view/10.
66
Fiat Justisia: Jurnal Ilmu Hukum P-ISSN: 1978-5186
Volume 16 Number 1, January-March 2022 E-ISSN: 2477-6238

One of the most controversial laws and regulations is Perppu. Perppu is

equivalent to a law.12 The 1945 Constitution grants the President any
authority to issue Perppu in the event of compelling exigencies. 13 Due to no
parameter of the compelling necessities, it highly depends on the President.
The parliament shall review it to obtain the approval of the House of
Representatives (DPR) in its next session.14 If DPR does not approve it,
Perppu shall be revoked. 15 However, owing to the absence of the
parameter,16 Perppu can lead to the authoritarianism of the President until
DPR eventually reviews it.
Another problem in-laws and regulations are the phenomena of
delegation. They are not complete due to the hierarchy, including the level of
laws. A provision in a law is further regulated in PP, from PP to Perpres or
Regional Regulations (Perda), or directly through ministerial regulations
(Permen). Some provisions cannot be implemented as the implementing
regulations have not been made. The implementing regulations can probably
contain new and substantive matters which should be stipulated by the
higher regulations, even deviate from them.

12 Marwiyah underlines the function of Perppu to face a severe condition such as an

emergency that requires rapid treatment; Siti Marwiyah et al., “Nature ‘Matters of Urgency
the Force’ for President in Establishing PERPPU,” Journal of Law, Policy and Globalization
34 (2015): 99–104, https://www.iiste.org/Journals/index.php/JLPG/article/view/20333/20757;
Unfortunately, the existing regulations cannot be considered setting a limit for the issuance of
the emergency regulation; Fitra Arsil, “Menggagas Pembatasan Pembentukan Dan Materi
Muatan Perppu: Studi Perbandingan Pengaturan Dan Penggunaan Perppu Di Negara-Negara
Presidensial,” Jurnal Hukum & Pembangunan 48, no. 1 (2018): 1–12,
https://doi.org/10.21143/.vol48.no1.1593; So, as mentioned by Simamora, this condition
becomes very subjective and tends to be politically abused; Janpatar Simamora, “Multitafsir
Pengertian ‘Ihwal Kegentingan Yang Memaksa’ Dalam Penerbitan Perppu,” Mimbar Hukum
22, no. 1 (2010): 58–70, https://doi.org/10.22146/jmh.16208.
13 Article 22 paragraph (1) of the 1945 Constitution. As mentioned by Simamora, this

condition becomes very subjective and tends to be politically abused; Simamora, “Multitafsir
Pengertian ‘Ihwal Kegentingan Yang Memaksa’ Dalam Penerbitan Perppu”; Even in the
absence of a legal basis, it confuses the substance review agency, as mentioned by Huda in
Ni’matul Huda, “Pengujian Perppu Oleh Mahkamah Konstitusi,” Jurnal Konstitusi 7, no. 5
(2010): 73–91, https://doi.org/10.31078/jk%25x; For this reason, it is necessary to give
judicial review authority of Perpuu to the Constitutional Court; Dedy Nursamsi, “Kerangka
Cita Hukum (Recht Idee) Bangsa Sebagai Dasar Kewenangan Mahkamah Konstitusi Menguji
Peraturan Pemerintah Pengganti Undang Undang (Perppu),” Jurnal Cita Hukum 2, no. 1
(2014): 89–100, https://doi.org/10.15408/jch.v1i1.1452; Different opinion expressed by Zairin
Harahap, “Menyoal Kewenangan Mahkamah Konstitusi Menguji Perppu,” Jurnal Yudisial 7,
no. 3 (2014): 311 – 328, https://doi.org/10.29123/jy.v7i3.78.
14 Article 22 paragraph (2) of the 1945 Constitution.
15 Article 22 paragraph (3) of the 1945 Constitution
16 The discussion about which state institution has the authority to review the substance of the

Perppu continues; Iskandar Muda, “Pro-Kontra Dan Prospektif Kewenangan Uji

Konstitusionalitas Perpu,” Jurnal Konstitusi 10, no. 1 (2013): 69–88,
https://doi.org/10.31078/jk%25x; Iskandar Muda, “Fenomena Two in One Pengujian Perppu,”
Jurnal Konstitusi 15, no. 2 (2018): 257–81, https://doi.org/10.31078/jk1522.
67
A Notion of Regulatory Reform Zainal Arifin Mochtar

One of the contributing factors in hyperregulation is tens of thousands of

Permen.17 Each Minister issues those regulations as long as they are related
to their functions. Nevertheless, the Minister's authority is granted through
delegation in law-making, including delegating authority from an official or
institution to a delegate. 18 Ministers' authorities are not derived from
attribution but from the President's authority as they assist the President.19
The silo mentality of each Minister results in tens of thousands of conflicting
and inefficient Permen. Consequently, President Joko Widodo complained
about the number of regulations hindering the progress made by the
government.20 The problem becomes an open discourse on the relevance of
Permen. The stipulations of a norm should be complete and end at the level
of perpres. Ministers can only regulate through Permen in their ministries.
The problem above can also be found in other laws and regulations.
Incomplete and conflicting regulations and the absence of implementation
regulations are the other problems of laws and regulations. Consequently,
several laws and regulations must be amended immediately after their
enactment, for example, Law Number 23 of 1997 or revoked through
judicial review.21
Furthermore, the question of the institution reviewing laws and
regulations emerges. The problem continues after a norm or article, or
paragraph is deleted. Lower norms may not conflict with higher ones, given
the regulatory hierarchy. Nonetheless, after a norm is revoked through
judicial review, its implementing regulations, the number of which is more
significant, cannot immediately be amended. More norms in PP, Perpres,
Perda, and Permen need to be amended if a norm in law is amended.

17 Akhmad Muawal Hasan, “PUKAT UGM: Jumlah Peraturan Menteri Kini Sudah Di Tahap
‘Obesitas,’” Tirto.id, 2017, https://tirto.id/pukat-ugm-jumlah-peraturan-menteri-kini-sudah-di-
tahap-039obesitas039-czYj; On the subject of the hyper regulations, Seidman described it as a
situation that often happens in most developing nations; Ann Willcox Seidman, Robert B.
Seidman, and Nalin Abeyesekere, Legislative Drafting for Democratic Social Change, A
Manual for Drafter (London: Kluwer Law International, 2001), p. 15; To achieve the
objectives, Anggono outlined, the government would generally try to translate the proposed
policies into laws and regulations; Bayu Dwi Anggono, “Structuring the Laws and
Regulations in Indonesia: Issues, and Solutions,” in Regulatory Reform in Indonesia A Legal
Perspective, ed. Widodo Ekatjahjana, Kai Hauerstein, and Daniel Heilmann (Jember: Hanns
Seidel Foundation Cooperation with The Ministry of Law and Human Rights Directorate
General of Legislation, 2019), 134.
18 Astawa and Na’a, Dinamika Hukum Dan Ilmu Perundang-Undangan Di Indonesia.
19 Article 17 paragraph 1 of the 1945 Constitution
20 Andi Saputra, “Jokowi Keluhkan Banyaknya Regulasi, Kini Ada 43.005 Peraturan Di

Indonesia,” Detiknews, 2019, https://news.detik.com/berita/d-4784463/jokowi-keluhkan-

banyaknya-regulasi-kini-ada-43005-peraturan-di-indonesia.
21 Yuliandri, Asas-Asas Pembentukan Peraturan Perundang-Undangan Yang Baik (Jakarta:

Raja Grafindo Persada, 2009), p. 7.

68
Fiat Justisia: Jurnal Ilmu Hukum P-ISSN: 1978-5186
Volume 16 Number 1, January-March 2022 E-ISSN: 2477-6238

Currently, judicial review is exercised by two institutions, including

Constitutional Court (to review laws against the constitution), 22 and Supreme
Court (review statutory rules and regulations below laws against the laws).23
The judicial review by Constitutional Court is also constitutional, while
Supreme Court conducts a review of legality. However, according to
Stuffenbau Theory by Kelsen, all laws and regulations may not conflict with
the constitution. This research’s originality is the reason why the judicial
review not solely exercised by the guardian of the constitution
(Constitutional Court).
Therefore, this article provides insights into two things. First, an analysis
of the problems of laws and regulations in Indonesia. Second, a notion of
regulatory reform. This is normative legal research from legal positivist and
socio-legal points of view. It employed a statutory approach by studying all
laws and regulations related to the topic of the discussion. In addition, a
historical approach was used to reveal the regulation issues' background and
development. This study also employed a conceptual approach to views and
doctrines in law science. The researcher can develop ideas leading to
relevant legal definitions, concepts, and principles by studying the
doctrines.24

B. Discussion

1. Problems of Types and Hierarchy of Laws and Regulations

Laws and regulations in Indonesia are classified into several types and
hierarchies. The classification is regulated in Law Number 12 of 2011 on
Law-making. This law repealed Law Number 10 of 2004. The hierarchy has
at least two logical consequences. First conformity between the types and
material contents of laws and regulations. As there are several types of laws
and regulations, every type of law and regulation must conform to material
contents.25 The making of laws and regulations must also conform to the

22 Article 24C paragraph (1) of the 1945 Constitution

23 Article 24A paragraph (1) of the 1945 Constitution
24 Peter Mahmud Marzuki, Penelitian Hukum (Jakarta: Kencana Prenada Media Grup, 2005),

p. 94-95.
25 Ferry Irawan Febriansyah, “Konsep Pembentukan Peraturan Perundang-Undangan Di

Indonesia,” Perspektif 21, no. 3 (2016): 220–29,

https://doi.org/10.30742/perspektif.v21i3.586.
69
A Notion of Regulatory Reform Zainal Arifin Mochtar

hierarchy.26 Second, the hierarchy means that each law and regulation may
not conflict with higher rules. 27
The 1945 constitution is the ground for all laws and regulations. As the
fundamental law, the constitution grants DPR the authority to make laws to
regulate constitutional provisions further. Although the President, holding
the power of government, is also granted such authority, Article 20A
paragraph (1) of the 1945 Constitution explicitly provides that DPR has the
legislative function. In other words, laws made by DPR as the legislative
body and the President as the executive body are the only way to regulate
constitutional norms further.
According to Law Number 12 of 2011, there are still several discourses
upon laws and regulations. First, some laws contain material contents that
should be regulated by lower regulations as many interests from various
sectors are in-laws. Even all professions aspire to have special laws despite
existing laws on the sectors. Second, there is a phenomenon of laws and
regulations to lower rules. The concept of delegation (delegated legislation)
can be interpreted as delegating laws to one of the lower rules to regulate
norms further. Laws frequently regulate briefly. Then, the provision is
delegated to PP or Perpres, Perda, even Permen. Therefore, many regulations
at various levels regulate the same matters.
Third, the excessive number of Permen. From 2000 to 2015, there were
8,331 Permen, compared to Laws (916), Government Regulation in Lieu of
(49), presidential decrees (1,550), president regulation (2,258), and
Government Regulation (2,446).28 Lastly, the lack of control by the
government in terms of synchronization and harmonization of laws and
regulations. This figure shows hyperregulation at the level of Permen. On
average, each law is further regulated by 2-3 PP, 2-3 Perpres, and 8-9
Permen.29 The more detailed discussions on the problems of laws and
regulations in Indonesia are as follows:

26 A. Hamid S. Attamimi, “Peranan Keputusan Presiden Republik Indonesia Dalam

Penyelenggaraaan Pemerintahan Negara, Suatu Studi Analisis Mengenai Keputusan Presiden
Yang Berfungsi Pengaturan Dalam Kurun Waktu Pelita I-Pelita IV” (Universitas Indonesia,
1990).
27
M. Luthfi Husni and Darul Ulum, “Hierarki Peraturan Perundang-Undangan Negara
Republik Indonesia Sebagai Suatu Sistem,” Justicia Journal 8, no. 1 (2019): 31–40,
https://doi.org/10.32492/yusticia.v8i1.291.
28 Diani Sadiawati et al., Strategi Nasional Reformasi Regulasi: Mewujudkan Regulasi Yang

Sederhana Dan Tertib (Jakarta: Kementerian PPN/Bappenas, 2015), p. 1-94.

29 Synchronization and harmonization in the formulation of the laws and regulations could be

defined as an effort or activity to synchronize (make it be in sync) and to harmonize (to create
harmony). The harmonization is between one law and regulation with other laws and
regulations of the same level (horizontal) or hierarchical (vertical); Maria Farida Indrati,
“Meningkatkan Kualitas Peraturan Perundang-Undangan Di Indonesia,” Jurnal Legislasi
Indonesia 4, no. 2 (2007): 25; However, the synchronization and harmonization of norms is
not the main pressure point but is defeated by the transactional politics between factions in the
DPR, which appears to be more dominant; Zainal Arifin Mochtar, “Antinomi Dalam
70
Fiat Justisia: Jurnal Ilmu Hukum P-ISSN: 1978-5186
Volume 16 Number 1, January-March 2022 E-ISSN: 2477-6238

a. The Revival of the People’s Consultative Assembly Decrees (TAP

MPR)
According to Law Number 12 of 2011, TAP MPRs are categorized into
laws and regulations. Article 7 of the law stipulates that TAP MPR is higher
than laws and lower than the 1945 Constitution. The revival of TAP MPR in
the hierarchy of laws and regulations is due, among others, to several
provisions of TAP MPR, which are still valid. TAP MPR No. I/MPR/2003
states that three TAP MPR are still valid, such as 1) TAP MPRS Number
XXV/MPRS/1966 on the dissolution of the Indonesian Communist Party
(PKI) and banning of communism, marxism, and Leninism; 2) TAP MPR
Number XVI/MPR/1998 on the Politics of Economy in the Framework of
Economic Democracy; 3) TAP MPR Number XVI/MPR/1998 on the
Referendum in East Timor. Bagir Manan thinks that the existence of TAP
MPR nowadays is based on two things. First, the implied power of MPR is
recognized by the 1945 Constitution, including the authority to make legal
decisions, such as inaugurating and discharging the President and the Vice
President. Second, constitutional conventions are recognized as one of the
sources of law, for example, TAP MPR, which was already known in the
previous regimes. 30
Nevertheless, the revival of TAP MPR in the hierarchy of laws and
regulations causes problems, for example, the existence of TAP MPR as
regulation and the classification of TAP MPR as laws and regulations. Now,
MPR is unable to issue TAP MPR. Before the amendment, MPR stipulated
TAP MPR as the supreme body. Before the amendment, article 3 of the 1945
Constitution provided that MPR stipulated the 1945 Constitution and
Outlines of the State Policy. At that time, the doctrine of the division of
power was upheld. Consequently, MPR, as the supreme body, exclusively
held the people’s sovereignty and divided it among the executive, legislative,
and judicial branches.
MPR is not the supreme body anymore. After the 1945 Constitution was
amended, the doctrine was replaced by the separation of power. Since then,
MPR has had three functions and authorities such as 1) amending and
stipulating the constitution; 2) inaugurating the President and/or the Vice
President; 3) discharging the President and/or the Vice President during their
tenure following the constitution. Article 1 of the additional provisions of the
1945 Constitution only assigned MPR to review the materials and status of
TAP MPR through TAP MPR Number I/MPR/2003.

Peraturan Perundang-Undangan Di Indonesia,” Hasanuddin Law Review 1, no. 3 (2015):

316–36, https://doi.org/10.20956/halrev.v1i3.112.
30 Bagir Manan in Ni’matul Huda et al., Problematika Ketetapan MPR Dalam Peraturan

Perundang-Undangan Indonesia (Yogyakarta: FH UII Press, 2015), p. 1-258.

71
A Notion of Regulatory Reform Zainal Arifin Mochtar

Another problem lies in the types of TAP MPR categorized into laws
and regulations. The term “ketetapan” (decree) in TAP MPR means a
specific decision (beschikking). The material contents of TAP MPR were
very varied as TAP MPR contains particular matters and binds all parties. It
shows inconsistency in legal terms. According to Widayati, TAP MPR
should be changed into “Peraturan Negara” (State Regulations) considering
the material contents of TAP MPR, which are still valid (regeling).31 The
proposal shows a consistent legal term, but it is irrelevant as MPR can no
longer make TAP MPR or the regulations.
The revival of TAP MPR in the hierarchy of laws and regulations
causes problems. Moreover, the revival of TAP MPR in the hierarchy of
laws and regulations means that three existing TAP MPR/MPRS bind lower
regulations. However, laws made after the enactment of Law Number 12 of
2011 do not contain TAP MPR/MPRS in their consideration of “mengingat”
(observing), for example, the mass organizations law and Political Parties
Law.32 Moreover, Widarto concluded that the standing of the TAP MPR is
not compatible with constitutional supremacy.
In reviewing other laws and regulations against TAP MPR, there are no
legal means or institutions to review TAP MPR against the 1945
Constitution or review lower regulations against TAP MPR. It should be
noted that the hierarchy of laws and regulations means that lower regulations
conform to higher ones.33
Referring to the theory of the hierarchy of laws and regulations, Hans
Nawiasky categorized legal norms in a state into four main groups such as
Staatsfundamentalnorm (State Fundamental Norms); Staatsgrundgesetz
(State Basic Laws/State Principal Laws); Formelle Gesetz (“formal” laws)
and; Verordnung and Autonom Satzung (Implementing Rules and
Autonomous Rules). From the perspective of the theory, in terms of the
material contents, TAP MPR is closer to the basic state laws due to its
essential and principal material contents and its making by the institution
with authority to amend and stipulate the constitution as the basic norms. 34

31 Widayati, “Rekonstruksi Kedudukan Ketetapan MPR Dalam Sistem Ketatanegaraan

Indonesia,” in Problematika Ketetapan MPR Dalam Peraturan Perundang-Undangan
Indonesia, ed. Ni’matul Huda (Yogyakarta: FH UII Press, 2015), 56.
32 As also mentioned by Sarumaha, TAP MPR are now very large and significant to become a

formal and material legal source; Alpius Sarumaha et al., “Legal Implications of the People’s
Consultative Assembly Provisions in the Hierarchy of Legislation Regulatory in Indonesia,”
Perspectives of Law and Public Administration 9, no. 2 (2020): 273–83; Joko Widarto et al.,
“Constitutionality of the People’s Consultative Assembly Decree in Article 7 Paragraph (1)
Item b Law No. 12 the Year 2011 on the Establishment of the Regulation Legislation,”
Journal of Law, Policy and Globalization 52 (2016): 1–9.
33 The Elucidation to Article 7 paragraph (2) of Law Number 12 of 2011
34 Kuntari outlined that TAP MPR can be used as a legal basis in the law-making process to

align with the state purpose outlined in the constitution; Kuntari and Fitra Arsil, “Decree of
the People’s Consultative Assembly as the Legal Basis in the Law-Making Process (Analysis
72
Fiat Justisia: Jurnal Ilmu Hukum P-ISSN: 1978-5186
Volume 16 Number 1, January-March 2022 E-ISSN: 2477-6238

b. Problems of Government Regulations in Lieu of Laws

Government regulations in lieu of laws (Perppu) according to Law
Number 12 of 2011 are classified into laws and regulations. In the hierarchy
of laws and regulations, perppu is equivalent to laws. In the formal sense,
Perppu is government regulation. On the other hand, in the material sense, its
contents are similar to those of laws. 35
The constitutional ground for Perppu is Article 22 of the 1945
Constitution. It provides that the President has the right to issue Perppu if
exigencies compel. From the provision, it is highly dependent on the
President to issue Perppu and interpret the “compelling exigencies."
Nevertheless, the President cannot issue it at will.
One of the problems of Perppu is the timing. Perppu can be issued
anytime if the President considers that the "compelling exigencies” condition
is fulfilled. The Constitutional Court, in its Verdict Number 138/PUU-
VII/2009, interprets the “compelling exigencies” as follows:
1. An urgency of dealing with legal issues following laws;
2. Legal vacuum; and
3. Insufficient time to make laws to fill the legal vacuum above.
Perppu is issued during the recess periods of DPR. Therefore, it shall be
approved by DPR in its next session. In other words, once DPR starts the
session, Perppu has to be discussed. Imagine what will happen if Perppu is
issued in a session of DPR, but it is discussed in the next session. However,
from the perspective of legal reasoning, the phrase "pada persidangan
selanjutnya" (in its next session) in Article 22 paragraph (2) of the 1945
Constitution can be interpreted as the time to issue Perppu. It can undermine
the essence of Perppu as a regulation to deal with compelling necessities so
that it is a matter of urgency.
What if Perppu is issued during the session of DPR? To put it simply, if
DPR is still in its session, what is needed is speedy legislation as long as
there is a joint commitment between DPR and the President. Considering
that law-making involves those two institutions, the commitment enables
speedy legislation. For example, Law Number 17 of 2014 concerning MPR,
DPR, DPD, and DPRD was amended promptly in a couple of days.

c. Confusion over Material Contents between Government Regulations

and Presidential Regulations
The President issues government Regulations (PP) and Presidential
Regulations (Perpres). According to Law Number 12 of 2011, government

of the Decree of the People’s Consultative Assembly of the Republic of Indonesia No.
XVI/MPR/1998 on the Political Economy in Terms of Economic Democracy),” in Advancing
Rule of Law in a Global Context, ed. Heru Susetyo, Patricia Rinwigati Waagstein, and
Akhmad Budi Cahyono (Florida: CRC Press, 2020), 26.
35 Article 11 of Law Number 12 of 2011 on Law-making

73
A Notion of Regulatory Reform Zainal Arifin Mochtar

regulations are issued by the President to implement laws accordingly.

Meanwhile, Perpres is also issued by the President to contain matters
ordered by law, matters to implement a government regulation, or matters to
exercise the government's authority. From both definitions,36 PP and Perpres
are categorized into laws and regulations to implement the mandates of laws.
In addition, the elucidation broadens the scope of PP and Perpres. They
not only implement mandates explicitly stipulated in-laws but can also be
issued to satisfy the needs of the government as long as they do not conflict
with higher regulations. The elucidation of PP states, “menjalankan undang-
undang sebagaimana mestinya” (to implement a law accordingly) means
that government regulations are issued to implement a mandate of law or as
long as required without deviating from the law. On the other hand, the
elucidation of Perpres says that Perpres is issued to regulate further the
mandates explicitly or implicitly stipulated in a law or government
regulations.
From the definitions and elucidations above, the specific material
contents of each regulation are unclear. Both PP and Perpres are issued to
regulate and implement the mandates of higher regulations. Furthermore,
they can still regulate matters to exercise the government's authority under
the higher regulations. This problem of material contents is likely to cause
obscurity and inefficiency in law-making.
Ni’matul Huda states that institutions have hierarchical laws and
regulations written and made in legal orders, particularly in the civil law
system. The hierarchy reflects each law and regulation so that if there is a
conflict between two rules, the higher rule abrogates the lower one. 37 In
other words, each of the laws and regulations should contain certain material
contents. It will help the lawmakers mandate law articles to implement the
regulation, including PP and Perpres.

d. Status of Ministerial Regulations (Peraturan Menteri) and Their

Grounds
Article 8 paragraph (1) of Law Number 12 of 2011 mentions several
other laws and regulations. They include regulations issued by MPR, DPR,
the Regional Representatives Council, the Supreme Court, the Constitutional
Court, the Audit Board, the Judicial Commission, Bank Indonesia, ministers,
state agencies, state institutions, or equivalent commissions established by
law or the government by order of law, the Provincial House of
Representatives, Governor, the Regency/Municipal House of

36 Compare with: Isnu Harjo Prayitno and Musa Anthony Siregar, “Testing the Existence of
Government Regulations in the Legal Regulation System in Indonesia,” in Proceedings of the
3rd International Conference on Indonesian Legal Studies (Semarang: ICILS, 2020), 1–9,
https://doi.org/10.4108/eai.1-7-2020.2303634.
37 Ni’matul Huda and R Nazriyah, Teori Dan Pengujian Peraturan Perundang-Undangan

(Bandung: Nusa Media, 2011), p. 33.

74
Fiat Justisia: Jurnal Ilmu Hukum P-ISSN: 1978-5186
Volume 16 Number 1, January-March 2022 E-ISSN: 2477-6238

Representatives, Regent/Mayor, Head of Village or equivalent. Paragraph

(2) of the article provides that all those regulations are legally binding if they
are ordered by superior regulations or made by an authority.
In the legal doctrine, law-making is seen from the ground for authority,
such as 1) attribution, in which laws and regulations grant power; 2)
delegation or the transfer of an acquired attribution of power from higher
regulations. One of the problems of law-making beyond the hierarchy is
regulations issued by ministers or Permen. Regarding the doctrines of
attribution and delegation above, ministers seem to acquire delegation from
the President in particular government areas. However, according to Article
17 of the 1945 Constitution, ministers are the assistants of the President, and
they have no original power for several reasons.
First, ministers are appointed and discharged by the President. They
should not have original power in law-making as they are appointed without
checks and balances. It will be difficult to control and oversee the
regulations they make. Second, although Article 17 paragraph (3) of the
1945 Constitution provides that each Minister is in charge of specific affairs
in government, it should not be interpreted as original power. 38 The
constitution does not even stipulate Permen.
Ministers’ authorities are derived from the President’s. Therefore, Article
1 (general provisions) of laws should not provide that a minister has the right
to make laws. It seems as if the Minister has original power. It is the
authority of the President which can be delegated or mandated to ministers.
Each law always contains the same provider so that ministers regulate
further. Major problems will likely arise if each minister issues regulations,
hampering harmonization and synchronization.

2. Regulatory Reform
Despite improving Law Number 10 of 2004, Law Number 12 of 2011 is
not flawless. Hence, reform is necessary to guarantee legal certainty. Several
measures to take are as follows:

38
As concluded by A. Mukri Aji, "it rises to legal uncertainty and conflicting with higher
regulations"; Ahmad Mukri Aji, Muhammad Ishar Helmi, and Nur Rohim Yunus, “The
Ministerial Regulation Position in the Hierarchy of Legislation in the Indonesian Legal
System,” International Journal of Advanced Science and Technology 29, no. 2 (2020): 2214–
24; That conclusion also pointed out by Jimmy Z. Usfunan, “The Authority of the Ministerial
Regulation and the Hierarchy of the Laws and Regulations,” in Regulatory Reform in
Indonesia A Legal Perspective, ed. Widodo Ekatjahjana, Kai Hauerstein, and Daniel
Heilmann (Hanns Seidel Foundation Cooperation with The Ministry of Law and Human
Rights Directorate General of Legislation, 2019), 143–58; Putra emphasized that it cause legal
uncertainty in interpreting the Minister's authority informing the legislation; Hendra Kurnia
Putra et al., “Legal Implications of Regulating Ministerial Regulation in Indonesia’s
Regulatory System,” Journal of Arts & Humanities 9, no. 6 (2020): 12–27,
https://doi.org/10.18533/journal.v9i6.1911.
75
A Notion of Regulatory Reform Zainal Arifin Mochtar

First, TAP MPR should be excluded from the hierarchy of laws and
regulations. After the amendment of the 1945 Constitution, MPR is no
longer the supreme body. Article 3 of the 1945 Constitution can merely
amend and stipulate the 1945 Constitution, inaugurate the President and Vice
President, and discharge the President and/or the Vice President during
office. In other words, TAP MPR has no constitutional ground for being
regulations. Meanwhile, law-making is an authority. The exclusion of TAP
MPR from the hierarchy of laws and regulations does not mean that the
material contents of the existing TAP MPR are also excluded. According to
their material contents, the existing TAP MPR can be inserted into other
laws and regulations.
Second, the restriction on Government Regulation in Lieu of Laws or
Peraturan Pemerintah Pengganti Undang-Undang (Perppu). Even though
the Constitutional Court has interpreted the compelling exigencies, it highly
depends on the President to issue Perppu. It is necessary to guarantee legal
certainty. The regulation may only be issued during the recess periods of
DPR when DPR fails to make laws.
Third, a distinction should be made regarding the material contents of
government regulations and presidential regulations. The latter should only
implement government regulations further and matters to exercise the
government's authority. In other words, presidential regulations should be an
indirect explanation of laws.
Fourth, Perpres should be limited. Their number has become excessive,
and they regulate new norms. They should only regulate how to implement
higher regulations.

C. Conclusion
After the amendment of the 1945 Constitution, TAP MPR has no
constitutional ground as MPR is no longer the supreme body. Article 3 of the
1945 Constitution has been amended so that MPR cannot issue any
regulations but the 1945 Constitution. The constitution does not stipulate
TAP MPR as one of the laws and regulations. Its existence leads to
problems, such as reviewing higher and lower regulations against TAP
MPR.
Perppu remains a government regulation issued by the President.
Nevertheless, its material contents are similar to those of laws. As a
consequence, the President can amend a law using Perppu. It can even repeal
or amend a law. Perppu has caused controversy as the President can issue it
without sufficient ground.
The President issues government regulations with implements laws
accordingly. Meanwhile, presidential regulations contain law-ordered
matters to implement a government regulation or exercise government
authority. It is difficult to distinguish the material contents of government
regulations and perpres as they can be the implementing regulations of laws.
76
Fiat Justisia: Jurnal Ilmu Hukum P-ISSN: 1978-5186
Volume 16 Number 1, January-March 2022 E-ISSN: 2477-6238

Permen are recognized as laws and regulations in Law Number 12 of

2011. They contain the material contents of higher regulations, including
laws, as they can regulate substantive matters. Notions of reform are of
paramount importance to deal with the problems abovementioned through
the amendment of Law Number 12 of 2011.

References

Aji, Ahmad Mukri, Muhammad Ishar Helmi, and Nur Rohim Yunus. “The
Ministerial Regulation Position in the Hierarchy of Legislation in the
Indonesian Legal System.” International Journal of Advanced Science
and Technology 29, no. 2 (2020): 2214–24.
Anggono, Bayu Dwi. “Structuring the Laws and Regulations in Indonesia:
Issues, and Solutions.” In Regulatory Reform in Indonesia A Legal
Perspective, edited by Widodo Ekatjahjana, Kai Hauerstein, and Daniel
Heilmann, 134. Jember: Hanns Seidel Foundation Cooperation with
The Ministry of Law and Human Rights Directorate General of
Legislation, 2019.
Arsil, Fitra. “Menggagas Pembatasan Pembentukan Dan Materi Muatan
Perppu: Studi Perbandingan Pengaturan Dan Penggunaan Perppu Di
Negara-Negara Presidensial.” Jurnal Hukum & Pembangunan 48, no. 1
(2018): 1–12. https://doi.org/10.21143/.vol48.no1.1593.
Astawa, I Gde Pantja, and Suprin Na’a. Dinamika Hukum Dan Ilmu
Perundang-Undangan Di Indonesia. Bandung: PT Alumni, 2012.
Attamimi, A. Hamid S. “Peranan Keputusan Presiden Republik Indonesia
Dalam Penyelenggaraaan Pemerintahan Negara, Suatu Studi Analisis
Mengenai Keputusan Presiden Yang Berfungsi Pengaturan Dalam
Kurun Waktu Pelita I-Pelita IV.” Universitas Indonesia, 1990.
Febriansyah, Ferry Irawan. “Konsep Pembentukan Peraturan Perundang-
Undangan Di Indonesia.” Perspektif 21, no. 3 (2016): 220–29.
https://doi.org/10.30742/perspektif.v21i3.586.
Harahap, Zairin. “Menyoal Kewenangan Mahkamah Konstitusi Menguji
Perppu.” Jurnal Yudisial 7, no. 3 (2014): 311 – 328.
https://doi.org/10.29123/jy.v7i3.78.
Hasan, Akhmad Muawal. “PUKAT UGM: Jumlah Peraturan Menteri Kini
Sudah Di Tahap ‘Obesitas.’” Tirto.id, 2017. https://tirto.id/pukat-ugm-
jumlah-peraturan-menteri-kini-sudah-di-tahap-039obesitas039-czYj.
Huda, Ni’matul. “Pengujian Perppu Oleh Mahkamah Konstitusi.” Jurnal
Konstitusi 7, no. 5 (2010): 73–91. https://doi.org/10.31078/jk%25x.
Huda, Ni’matul, and R Nazriyah. Teori Dan Pengujian Peraturan
Perundang-Undangan. Bandung: Nusa Media, 2011.
Huda, Ni’matul, Saifudin, Muntoha, Agus Triyanta, Ridwan, Ali Rido, King
Faishal Sulaiman, Erlina, Dessy Ariani, and Despan Heryansyah.
Problematika Ketetapan MPR Dalam Peraturan Perundang-Undangan
77
A Notion of Regulatory Reform Zainal Arifin Mochtar

Indonesia. Yogyakarta: FH UII Press, 2015.

Husni, M. Luthfi, and Darul Ulum. “Hierarki Peraturan Perundang-
Undangan Negara Republik Indonesia Sebagai Suatu Sistem.” Justicia
Journal 8, no. 1 (2019): 31–40.
https://doi.org/10.32492/yusticia.v8i1.291.
Indrati, Maria Farida. Ilmu Perundang-Undangan (Legislation Theory).
Yogyakarta: Kanisius, 1998.
———. “Meningkatkan Kualitas Peraturan Perundang-Undangan Di
Indonesia.” Jurnal Legislasi Indonesia 4, no. 2 (2007): 25.
Kelsen, Hans. General Theory of Law and State. Cambridge: Harvard
University Press, 1949.
Kuntari, and Fitra Arsil. “Decree of the People’s Consultative Assembly as
the Legal Basis in the Law-Making Process (Analysis of the Decree of
the People’s Consultative Assembly of the Republic of Indonesia No.
XVI/MPR/1998 on the Political Economy in Terms of Economic
Democracy).” In Advancing Rule of Law in a Global Context, edited by
Heru Susetyo, Patricia Rinwigati Waagstein, and Akhmad Budi
Cahyono, 26. Florida: CRC Press, 2020.
Marwiyah, Siti, Sudarsono, Isrok, and Jazim Hamidi. “Nature ‘Matters of
Urgency the Force’ for President in Establishing PERPPU.” Journal of
Law, Policy and Globalization 34 (2015): 99–104.
https://www.iiste.org/Journals/index.php/JLPG/article/view/20333/207
57.
Marzuki, Peter Mahmud. Penelitian Hukum. Jakarta: Kencana Prenada
Media Grup, 2005.
Mochtar, Zainal Arifin. “Antinomi Dalam Peraturan Perundang-Undangan
Di Indonesia.” Hasanuddin Law Review 1, no. 3 (2015): 316–36.
https://doi.org/10.20956/halrev.v1i3.112.
Muda, Iskandar. “Fenomena Two in One Pengujian Perppu.” Jurnal
Konstitusi 15, no. 2 (2018): 257–81. https://doi.org/10.31078/jk1522.
———. “Pro-Kontra Dan Prospektif Kewenangan Uji Konstitusionalitas
Perpu.” Jurnal Konstitusi 10, no. 1 (2013): 69–88.
https://doi.org/10.31078/jk%25x.
Nursamsi, Dedy. “Kerangka Cita Hukum (Recht Idee) Bangsa Sebagai Dasar
Kewenangan Mahkamah Konstitusi Menguji Peraturan Pemerintah
Pengganti Undang Undang (Perppu).” Jurnal Cita Hukum 2, no. 1
(2014): 89–100. https://doi.org/10.15408/jch.v1i1.1452.
Prayitno, Isnu Harjo, and Musa Anthony Siregar. “Testing the Existence of
Government Regulations in the Legal Regulation System in
Indonesia.” In Proceedings of the 3rd International Conference on
Indonesian Legal Studies, 1–9. Semarang: ICILS, 2020.
https://doi.org/10.4108/eai.1-7-2020.2303634.
Putra, Hendra Kurnia, Sudarsono, Istislam, and Aan Eko Widiarto. “Legal
Implications of Regulating Ministerial Regulation in Indonesia’s
78
Fiat Justisia: Jurnal Ilmu Hukum P-ISSN: 1978-5186
Volume 16 Number 1, January-March 2022 E-ISSN: 2477-6238

Regulatory System.” Journal of Arts & Humanities 9, no. 6 (2020): 12–

27. https://doi.org/10.18533/journal.v9i6.1911.
Sadiawati, Diani, Lilly Widayati, Mumtaz Soraya N., S.Purwa Malaysianto,
Yustina Handayani Wijayanti, Mohamad Iksan Maolana, Naomi
Helena Tambunan, et al. Strategi Nasional Reformasi Regulasi:
Mewujudkan Regulasi Yang Sederhana Dan Tertib. Jakarta:
Kementerian PPN/Bappenas, 2015.
Saputra, Andi. “Jokowi Keluhkan Banyaknya Regulasi, Kini Ada 43.005
Peraturan Di Indonesia.” Detiknews, 2019.
https://news.detik.com/berita/d-4784463/jokowi-keluhkan-banyaknya-
regulasi-kini-ada-43005-peraturan-di-indonesia.
Sarumaha, Alpius, Tunggul Anshari Setia Negara, Moh. Fadli, and Herman
Suryokumoro. “Legal Implications of the People’s Consultative
Assembly Provisions in the Hierarchy of Legislation Regulatory in
Indonesia.” Perspectives of Law and Public Administration 9, no. 2
(2020): 273–83.
Sati, Nisrina Irbah. “Ketetapan MPR Dalam Tata Urutan Peraturan
Perundang-Undangan Di Indonesia.” Jurnal Hukum & Pembangunan
49, no. 4 (2019): 834–46. https://doi.org/10.21143/jhp.vol49.no4.2343.
Seidman, Ann Willcox, Robert B. Seidman, and Nalin Abeyesekere.
Legislative Drafting for Democratic Social Change, A Manual for
Drafter. London: Kluwer Law International, 2001.
Simamora, Janpatar. “Multitafsir Pengertian ‘Ihwal Kegentingan Yang
Memaksa’ Dalam Penerbitan Perppu.” Mimbar Hukum 22, no. 1
(2010): 58–70. https://doi.org/10.22146/jmh.16208.
Susanti, Bivitri. “Menyoal Jenis Dan Hierarki Peraturan Perundang-
Undangan Di Indonesia.” Jentera: Jurnal Hukum 1, no. 2 (2017): 128–
43. https://35.240.241.163/index.php/jentera/article/view/10.
Usfunan, Jimmy Z. “The Authority of the Ministerial Regulation and the
Hierarchy of the Laws and Regulations.” In Regulatory Reform in
Indonesia A Legal Perspective, edited by Widodo Ekatjahjana, Kai
Hauerstein, and Daniel Heilmann, 143–58. Hanns Seidel Foundation
Cooperation with The Ministry of Law and Human Rights Directorate
General of Legislation, 2019.
Widarto, Joko, Isrok, Mukthie Fadjar, and Muchamad Ali Safa’at.
“Constitutionality of the People’s Consultative Assembly Decree in
Article 7 Paragraph (1) Item b Law No. 12 the Year 2011 on the
Establishment of the Regulation Legislation.” Journal of Law, Policy
and Globalization 52 (2016): 1–9.
Widayati. “Rekonstruksi Kedudukan Ketetapan MPR Dalam Sistem
Ketatanegaraan Indonesia.” In Problematika Ketetapan MPR Dalam
Peraturan Perundang-Undangan Indonesia, edited by Ni’matul Huda,
56. Yogyakarta: FH UII Press, 2015.
Wierdarini, Putu Ayu Anastasia. “Tinjauan Yuridis Terhadap Pengembalian
79
A Notion of Regulatory Reform Zainal Arifin Mochtar

Kewenangan Istimewa Majelis Permusyawaratan Rakyat Melalui

Perubahan Undang-Undang Dasar Negara Republik Indonesia Tahun
1945.” Jurnal Yuridis 5, no. 1 (2018): 142–59.
https://doi.org/10.35586/.v5i1.320.
Yuliandri. Asas-Asas Pembentukan Peraturan Perundang-Undangan Yang
Baik. Jakarta: Raja Grafindo Persada, 2009.

80