A Shift in The Review Model of Local Regulation

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Abstract

After the Constitutional Court/Mahkamah Konstitusi (“MK”) Decision in the case of Judicial Review of Law Number 23 of 2014concerning Local Government against The 1945 Constitution of the Republic of Indonesia, which was pronounced in MK Plenary Session onWednesday, 5 April 2017, the authority of the executive i.e. the Governor to revoke a Regency/Municipality Regulation and Regent/MayorRegulation (Perda/Perkada) was declared as against The 1945 Constitution of the Republic of Indonesia (UUD NRI 1945). MK stated that thephrase “Regency/Municipality Regulation and” in Article 251 paragraph (2) and paragraph (4), the phrase “Regency/Municipality Regulationand/or” in Article 251 paragraph (3), and the phrase “A Deputy Governor of the Central Government does not invalidate legislationRegency/City and” and the phrase “Regency/Municipality Regulation or” in Article 251 paragraph (8) Law Number 23 of 2014 are in violationof UUD NRI 1945 and have no binding legal power. Therefore, the President—through the Minister and the Governor—no longer has theauthority to revoke Perda/Perkada. The power that holds full authority is the judiciary through the judicial review mechanism. This researchaims to explain the review model of Perda/Perkada, to identify the mechanism of Perda/Perkada revocation based on Law Number 23 of 2014,and to identify the legal implication of MK Decision in the case of Review of Law Number 23 of 2014 on UUD NRI 1945. The researchmethodology used is qualitative data collection method in the form of literature research. Research result suggests that MK incorrectly made theDecision that abolishes the executive review of Perda/Perkada, given that Law Number 23 of 2014 which grants the authority to the President—through the Minister and the Governor —to revoke a Perda/Perkada is not meant to replace or take over the judicial review authority from theSupreme Court (“MA”) as a justice or judicial authority institution, therefore the abolition of the executive review regulation is feared to resultin lack of legal certainty in the implementation of a controversial Perda/Perkada.Keywords—Local Regulation, Judicial Review, Executive Review.
Original languageEnglish
JournalAtlantis
Publication statusPublished - 2017

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