Hierarchy of Laws and Regulations in Indonesia

PERTANYAAN

What is the hierarchy of laws and regulations in Indonesia? What are the principles of the hierarchy?

INTISARI JAWABAN

The hierarchy of laws and regulations in Indonesia refers to Article 7 Section (1) Law 12/2011 and its amendment which consists of:

a. 1945 Constitution of the Republic of Indonesia;

b. Decree of the People's Consultative Assembly;

c. Laws/Government Regulations in Lieu of Laws;

d. Government Regulations;

e. Regulation of the President;

f. Provincial Regulations; and

g. Regency/City Regulation.

 

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Hirarki Peraturan Perundang-undangan di Indonesia which was written by Tri Jata Ayu Pramesti and was published on Friday, 20 May 2022.

This article below is the fourth update of the article entitled Hierarchy of Laws and Regulations (Hirarki Peraturan Perundang-undangan) which was written by Ali Salmande and was first published on Tuesday, 22 March 2011. It was first updated on Friday, 4 May 2018, secondly updated on Wednesday, 18 March 2020, and thirdly updated on Wednesday, 15 April 2020.

All legal informations which are available through Klinik hukumonline.com have been prepared for educational purposes only and are general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Concept of Hierarchy of Laws and Regulations

The concept of the hierarchy of laws and regulations cannot be separated from the theory of Hans Kelsen and Hans Nawiasku. We will elaborate on both theories, as quoted by Nisrina Irbah Sati in the Decree of People's Consultative Assembly on the Hierarchy of Laws and Regulations in Indonesia (pp. 837–838).

According to Hans Kelsen, there are basically two categories of norms in law, namely the inferior norms and the superior norms. In relation to these two norms, the validity of the lower norms can be legally tested against the norms which are hierarchically located above them.

Departing from the abovementioned Hans Kelsen theory, Hans Nawiasky then elaborated that the legal norms were arranged in the form of a stupa (stufenformig) which consisted of certain parts (zwischenstufe). The hierarchies are staatsfundamentalnorm (basic norms), staatsgrundgesetz (basic and broad norms, might be stated in several regulations), formellgesetz (concrete and detailed in nature), verordnungsatzung (implementing regulations), and autonome satzung (autonomous regulations).

Hierarchy of Laws and Regulations in Indonesia

There is a hierarchy of laws and regulations in Indonesia. Article 7 Section (1) Law 12/2011 stipulates that the types and hierarchies of laws and regulations in Indonesia consist of:

1. 1945 Constitution of the Republic of Indonesia;
2. Decree of the People's Consultative Assembly;
3. Laws/Government Regulations in Lieu of Laws;
4. Government Regulations;
5. Regulation of the President;
6. Provincial Regulations; and
7. Regency/City Regulation.

According to these regulations, it can be seen that the highest hierarchy of laws and regulations in Indonesia is the 1945 Constitution. Furthermore, it is important to note that the legal force of the laws and regulations applies in accordance with their hierarchies. In addition, lower laws and regulations must not be contradictory to the higher laws and regulations.[1]

Types and hierarchies of laws and regulations other than those referred to include regulations stipulated by:[2]

1. People's Consultative Assembly;
2. House of Representatives;
3. Regional Representative Council;
4. Supreme Court;
5. Constitutional Court;
6. The Audit Board of the Republic of Indonesia;
7. Judicial Commission;
8. Bank Indonesia;
9. Minister;
10. Agencies, institutions, or commissions, that are established by Law or by the government according to orders from the Law;
11. Provincial Legislative Council (Province and regency/city level)
12. Governor, regent/mayor, chief of the village, or equivalent.

The abovementioned laws and regulations are acknowledged and have the binding force of law as long as they are regulated by higher laws and regulations or established according to authority.[3]

It should also be noted that from the above hierarchies and types of laws and regulations, the material and content of criminal laws can only be contained in Laws, Provincial Regulations, or Regency/City Regulations.[4]

In addition, each statutory regulation has a Considering Section and an Observing Section, each of which has its own content. What are the contents? You can find the answer in The Meaning of 'Considering' and ‘Observing’ under the Laws and Regulations.

Principles of the Hierarchy of Laws and Regulations

Furthermore, to answer your question, there are four principles within the hierarchy of laws and regulations, as follows:

1. Lex superiori derogat legi inferiori: lower regulations must not conflict with higher regulations. This principle applies to two regulations whose hierarchies are unequal and contradictory.
2. Lex specialis derogat legi generali: more specific regulations override more general regulations. This principle applies to two regulations that are equal in the hierarchy with the same material.
3. Lex posteriori derogat legi priori: the new regulation overrides the old one. This principle applies when there are two equal hierarchies of regulations in order to prevent legal uncertainty.
4. Regulations can only be abolished by regulations of equal or higher standing.

Also read: 3 Principles of Law: Lex Superior, Lex Specialis, and Lex Posterior and their Examples

Besides the hierarchy of laws and regulations, there are other topics for discussion that relate to regulations. Several interesting discussions can be found in the following articles:

1. Are the Contents of the Government Regulations in Lieu of Laws the Same as the Law? – Government regulations in lieu of laws are regulations that are established by the President in the event of compelling crises. However, is the content of the government regulations in lieu of laws the same as the Law?
2. Can the Decree of the People's Consultative Assembly be equated with the 1945 Constitution or the Law? - The position of the Decree of the People's Consultative Assembly which is now regulated under Law 12/2011 does not mean that the position of the decree can be equated with the 1945 Constitution or the Law.
3. Regulation of the Minister and Regulation of the Governor, Which One is Higher? – Regulation of the Minister and Regulation of the Governor are indeed types of laws and regulations. However, between the two of them, which one is higher?
4. What Are Government Regulations and Can They Be Applicable If Implementing Regulations Are Not Yet Regulated? - Government Regulation is established by the President to implement the Law. Thus, the content of Government Regulation is made to implement the Law. However, what would happen if there are no implementing regulations for the Government Regulation?
5. Inclusion of Legal Basis in the Drafting of Village Regulations - Village Regulations as regulations established by the head of the village are types of laws and regulations that are acknowledged and have the binding force of law. Should there be a legal basis for the establishment of a Village Regulation?

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. The 1945 Constitution of the Republic of Indonesia;
2. Law Number 12 of 2011 on the Establishment of Laws and Regulations as amended by Law Number 15 of 2019 on Amendment to Law Number 12 of 2011 on Establishments of Laws and Regulations.

Reference:

1. Nisrina Irbah Sati. Ketetapan MPR dalam Tata Urutan Peraturan Perundang-undangan di Indonesia, Jurnal Hukum & Pembangunan 49 No. 4, 2019.

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[1] Article 7 Section (2) Law Number 12 of 2011 on the Establishment of Laws and Regulations (“Law 12/2011”) and the elucidations.

[2] Article 8 Section (1) Law 12/2011.

[3] Article 8 Section (2) Law 12/2011.

[4] Article 15 Section (1) Law 12/2011.