The Authority of the Regent
to cancel the Village Regulation
on Village Revenue and Expenditure
Budget based on Minister of
Home Affairs Regulation Number 20 of 2018 concerning Village Financial Management
Hendro
Kusuma Jaya1*, Moh. Muhibbin2
Universitas Islam Malang, Malang, North Java, Indonesia1,2
Email: [email protected]1*, [email protected]2
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ABSTRACT |
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Authority of the Regent,
Cancellation, Village Regulations. |
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The research aims to investigate the Regent's authority to revoke Village Regulations on Village Revenue and Expenditure Budgets following Minister of Home
Affairs Regulation Number 20 of 2018 on Village Financial Management. It employs normative legal research methods, utilizing statutory and conceptual approaches and analyzing primary, secondary, and tertiary legal sources qualitatively. The findings suggest that while Village Regulations lacking an evaluation mechanism, determined solely by the
Village Head, contravene Article 69 paragraph (4) of Law Number 6 of 2014 on Villages, the Regent/Mayor cannot annul such regulations under Article 36 paragraph (1) of Minister of Home
Affairs Regulation Number 20 of 2018 unless the Village
Head disregards the Regent/Mayor's
evaluation findings, maintaining the validity of the
Village Regulation. The Regent's authority to annul Village
Regulations ignoring Regent's evaluations, as per Minister of Home
Affairs Regulation Number 20 of 2018, conflicts with Article 24A paragraph (1) of the 1945 Constitution
of the Republic of Indonesia. |
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INTRODUCTION
Democracy
can be interpreted
as a government that comes from, by,
and for the
people; therefore, one of the
pillars of democracy is participation
The Village Consultative Board, facilitated by the Village
Government and supported through the Village Budget
for the relevant
year, conducted Village deliberations to prepare development
plans for the next year
The
Village Fund's priority usage entails selecting programs and activities that
take precedence over others for funding. This prioritization is determined
annually through regulations set by the Minister of Villages, Development of
Disadvantaged Regions, and Transmigration. Establishing these priorities guides
the Village government in its development planning, ensuring alignment with the
Village Development Plan. This synchronization streamlines the budgeting
process, as the Village Government Work Plan documents are based on the
outcomes of Village Development Planning Deliberation meetings
Furthermore,
adherence to relevant laws and regulations is crucial in managing Village
finances
The purpose of studying
community involvement in the development planning process, particularly within the context of
the Village Consultative Board and the utilization
of Village Funds, is to
elucidate how democratic principles, such as participation and empowerment, translate into tangible outcomes for local governance.
By examining the participatory nature of Village deliberations
and the prioritization
of programs based on community
needs rather than individual interests, the study aims to underscore the
importance of fostering a "sense of ownership" among community members towards development initiatives. Additionally, it seeks to understand the
regulatory framework surrounding Village finances and budgeting
processes, emphasizing adherence to laws
and regulations to ensure transparency,
accountability, and alignment with broader development plans. Through this investigation, the study intends to provide insights
into the effectiveness of community involvement in driving sustainable and inclusive development
at the grassroots
level, while highlighting the role of
regulatory oversight in ensuring governance integrity and preventing
misallocation of resources.
METHODS
The research utilizes a descriptive approach and
employs the normative juridical method to investigate the cancellation of
Village Regulations regarding Village Revenue and Expenditure Budgets, focusing
on the legal framework governing the Regent's authority. It encompasses a
comprehensive examination of relevant laws and regulations. Legal resources are
categorized into primary, secondary, and tertiary sources. Primary legal
materials, such as Pancasila, the 1945 Constitution, Laws and Regulations,
Jurisprudence, and Treaties, carry legal binding force. Secondary legal
materials, including legislative drafts, scholarly articles, and research
findings, complement primary sources for analysis and comprehension. Tertiary
legal materials, such as bibliographies, legal magazine indices, encyclopedias, directories, and legal dictionaries, serve
as supplementary resources to navigate primary and secondary legal documents.
The data collection involves meticulous study and documentation of the
necessary legal materials.
RESULTS
Status of
Village Regulations on Village Revenue
and Expenditure Budgets whose determination
is carried out without going
through the evaluation process of the Regent
first
The Minister of Home
Affairs Regulation Number 20 of 2018, following Government Regulation Number 43 of 2014 on the
Implementation of Law Number 6 of 2014 regarding Villages, and subsequently amended by Government
Regulation Number 47 of 2015, outlines the guidelines for village financial
management. These guidelines are further detailed in ministerial regulations
governing domestic government affairs, representing the Ministry of Home
Affairs' significant effort towards advancing the welfare
and development of rural communities.
Describing
the Minister of Home Affairs
Regulation Number 20 of 2018 on Village
Financial Management as progressive
and forward-thinking would not be an
overstatement. This regulation, stemming from Law Number 6 of 2014 concerning Villages, demonstrates adaptability to evolving circumstances. It innovatively merges empowerment principles with financial management practices, reflecting a bold initiative. This regulation's innovative approach in integrating empowerment principles, foundational to the formulation
of Law Number 6 of 2014, with financial
management principles, notably through the adoption of
cash-based reporting accounting standards, marks a significant stride forward.
Village
financial management planning, also known as planning, entails the projection
of village government revenues and expenditures outlined in the Village Revenue and Expenditure Budget for the
upcoming fiscal year. This planning
phase serves as the initial step in the village's financial
management procedure. The planning process, documented within the Village Revenue
and Expenditure Budget, serves as the cornerstone for the village's
financial management over a
one-year period. It is intricately
linked to the annual development
planning process regularly conducted within the village,
which culminates in the creation of
the Village Government Work Plan. Once the Village Regulation
pertaining to the Village Government
Work Plan is established, the Village Head directs
the Village Secretary to oversee
the coordination of the Village
Revenue and Expenditure Budget preparation.
The Village Government initiates the drafting
of the Village
Revenue and Expenditure Budget for the upcoming
year as early as October of the
current year. The Village Regulation pertaining to this
budget is mandated to be
finalized by the Village Head
by the end
of December or precisely by
December 31 of the current year.
This regulatory process necessitates the prior preparation
of a draft Village Revenue and Expenditure Budget. The drafting of this budget
must align with the previously
ratified Village Regulation on Government
Work Plan to ensure that funded
activities are well-planned
and by Article
79, paragraph (4) of Village Law Number 6 of 2014. Subsequently, the completed draft
Village Regulation on Village Revenue
and Expenditure Budget is presented
to the Village
Consultative Body for discussion and consensus in their deliberation forum no later than
October of the current year.
Following agreement between the Village
Head and the Village Consultative
Body, a draft Village Head Regulation
on the Elaboration
of the Village
Revenue and Expenditure Budget is prepared, coordinated
by the Village
Secretary.
In
accordance with Article 34 paragraph (1) of the Minister of Home Affairs
Regulation Number 20 of 2018 regarding Village Financial Management, the next
step in preparing the Village Revenue and Expenditure Budget entails the
Village Head submitting a draft Village Regulation on this matter to the
Regent/Mayor for assessment. This process is mandated by Article 69 paragraph
(4) of Law Number 6 of 2014 concerning Villages, which stipulates that various
drafts, including those related to revenue, expenditure, levies, spatial
planning, and Village Government organization, must undergo evaluation by the
Regent/Mayor before being officially enacted as Village Regulations. This
underscores the necessity for evaluation by the Regent/Mayor before the Village
Head can finalize the regulations, which ultimately become legally binding once
promulgated by the Village Secretary in the Village Gazette.
The assessment performed by the Regent/Mayor
serves as a means of overseeing the
fiscal management of the village
government following its jurisdiction. When examining the situation where
the Village Head determines the Village Revenue
and Expenditure Budget Regulation without undergoing an evaluation process,
several potential reasons emerge: Firstly, the Village
Head may intentionally skip the evaluation phase if the activities
outlined in the proposed regulation are either non-existent or not aligned with the Village
Government Work Plan for the year
as stipulated by the Village Regulation.
Secondly, the Village Head might
consistently argue that the sub-district
has not issued instructions
for evaluation, leading them to
perceive the evaluation stage as non-obligatory in preparing the Village Revenue
and Expenditure Budget Regulation. Lastly, the sub-district head, tasked with evaluating
as per the authority delegated by the
Regent/Mayor, may not consider the evaluation
activity as a crucial step that must be
undertaken.
The Village Regulation on Village Revenue
and Expenditure Budget, determined by the Village
Head without undergoing an evaluation
mechanism, violates Article 69 paragraph (4) of Law Number 6 of 2014 regarding Villages. However, the Regent/Mayor is unable to
nullify the Village Regulation following Article 36 paragraph (1) of Minister of Home
Affairs Regulation Number 20 of 2018 concerning Village Financial Management. This is because the
stipulations of that article can
only be invoked
if the Village
Head fails to act upon
the evaluation findings of the
Regent/Mayor, thereby allowing the Village
Regulation to retain its legal standing.
A regulation earns merit when it effectively
addresses the interests of diverse
stakeholders in accordance with the community's
needs it governs. Furthermore, it must adhere
to pertinent laws and regulations,
ensuring conformity in both its structure
and formation mechanism, thus fostering acceptance and proper implementation
in society. Village Regulations, integral to village governance, must adhere to
the standards of sound and
lawful regulation formation to be
efficacious in people's lives. Should any
regulations be deemed unsuitable or result in community
detriment due to conflicts with
higher laws and regulations, recourse can be
sought through a judicial review or constitutionality examination as per Article 24A paragraph (1) of the 1945 Constitution of the Republic of Indonesia, overseen by the Supreme Court through a judicial review process.
The authority of the
Regent to cancel the Village
Regulation on Village Revenue and Expenditure Budget was determined
by ignoring the results of
the Regent's evaluation based on the Minister
of Home Affairs
Regulation Number 20 of 2018 concerning Village Financial Management
In
Law Number 12 of 2011 regarding the Formation
of Laws and
Regulations, there is no mention
of the term "cancellation of regulations" or "cancellation of laws." However, the term "void" is explicitly referenced
in the Explanation to Article 5 letter
b of Law Number 12 of 2011 concerning the Formation of
Laws and Regulations, which states:
What
"appropriate institutional
principles or forming officials" means that a state
institution or an authorized law-forming
official must make every type
of legislation. Such laws and
regulations can be cancelled or
null and void if made
by state institutions or unauthorized officials.
A mechanism commonly
known as legal norm control can be
utilized to oversee various types of legal regulations. This control can be
implemented through political supervision, administrative oversight, or judicial review.
The supervision of legal norms essentially involves examining laws and regulations
to ensure their coherence and compliance. This process aims
to uphold justice and promote
the welfare of society by
ensuring that laws do not contradict
one another and serve the
community's interests.
The Supreme Court holds the authority
to scrutinize laws and regulations
in accordance with Article 24A paragraph (1) of the Basic Law, which grants it
the power to adjudicate at
the cassation level, review laws and
regulations for compliance with the law, and
possess other legal powers. This provision
is further elaborated in Article 20 paragraph (2) point b of Law Number 48 of 2009 regarding Judicial Power, affirming the Supreme Court's role in testing laws and regulations against the law.
Additionally, the principles outlined in Article 24A paragraph (1) of the Constitution
are echoed in Law Number 12
of 2011 concerning the Formation of
Laws and Regulations, with subsequent amendments including the most
recent Law Number 13 of 2022. Notably, Article 9 paragraph (2) of the latter
law specifies that disputes between
regulations and laws are subject to the Supreme Court's examination. Thus, the Supreme Court possesses absolute authority to assess the
conformity of laws and regulations
with legal standards.
The constitution empowers the Supreme Court with the
authority to execute judicial power, particularly through the practice
commonly known as judicial review. This grants the
Supreme Court the pivotal role of
examining laws and regulations. The primary objective behind entrusting the Supreme Court with the responsibility
to scrutinize laws and regulations
as part of its judicial functions
is to reinforce
and fortify its roles and
obligations. This aims to ensure
that the Supreme Court oversees all governmental actions or decisions,
enabling the judiciary to exercise
control over the actions of the
government. Within the framework of
this judicial review, judges are entitled to prohibit
and annul governmental actions that: (a) Are carried out in an arbitrary,
capricious, or abusive manner, deviating from the legal framework; (b) Contravene constitutional rights, authority, powers, privileges, or immunities; (c) Exceed the boundaries
of authority as defined by law
or lack legal foundation; (d) Are conducted without adherence to prescribed legal procedures; (e) Lack substantial evidence to support the
factual basis of the government's actions.
Additionally, alongside judicial
review conducted by judicial institutions, there exists
administrative/executive review performed by executive bodies. A prime example
of this is the examination of Village Regulations. The scrutiny of Village Regulations,
as stipulated in Law Number 6 of 2014, follows an administrative/executive
review model, wherein the District/City Government, represented by the
Regent/Mayor, holds the authority to conduct such reviews. Technically governed
by Article 14 paragraph (1) in conjunction with Article 19 paragraph (1) of the
Regulation of the Minister of Home Affairs Number 111 of 2014 concerning
Technical Guidelines for Regulations in Villages, the process includes:
1.
Evaluation
Stage: Here, the Regent/Mayor evaluates draft Village Regulations deliberated
and agreed upon by the Village Head and Village Consultative Body, pertaining
to aspects such as Village Revenue and Expenditure Budget, levies, spatial
planning, and Village Government organization. The Regent/Mayor possesses full
authority at this stage to nullify draft Village Regulations conflicting with
superior laws and regulations. Notably, this evaluation occurs before
ratification/determination by the Village Head.
2.
Clarification
Stage: At this phase, the Regent/Mayor clarifies Village Regulations that have
been promulgated. Similar to the Evaluation Stage, the Regent/Mayor can cancel
Village Regulations that clash with higher laws and regulations. However, this
stage involves a review of already ratified/stipulated Village Regulations.
Essentially,
incorporating Village Regulations into the legal framework, despite their placement
beneath Regional Regulations
rather than within the hierarchy
of primary laws and regulations,
holds significant legal implications. Particularly, it pertains to
the Supreme Court's jurisdiction to conduct judicial reviews, with such
reviews falling under the competence
of the Supreme Court as stipulated in Article 24A paragraph (2) of the Constitution
of the Republic of Indonesia Year 1945, in conjunction with Article 20 paragraph (2) point b of Law Number 48 of the
Year 2009 concerning Judicial Power, and Article 9 paragraph (2) of Law Number 12 of the Year
2011 concerning the Establishment of Laws and Regulations.
With over 74,000 villages
in Indonesia, this inevitably
leads to a surge in cases within the judiciary,
posing challenges to its functioning.
Emphasizing the cornerstone of the rule of
law, the principle of legality
underscores that governmental authority is derived from
adherence to laws and regulations.
Judicial review, a hallmark of a nation
committed to the rule of
law, is imperative
for its establishment,
asserting that legislative enactments must undergo scrutiny
by judicial bodies to validate
their legality. Thus, the validation
of legal products is contingent upon
their assessment by the judiciary,
reinforcing the principle of legality
and the rule
of law.
The
Law Number 6 of 2014 regarding Villages introduces an executive
preview mechanism, particularly emphasized in Article 69 paragraph (4). This mechanism mandates that drafts
of Village Regulations pertaining to Village Revenue
and Expenditure Budgets, levies, spatial planning, and village government
structures undergo evaluation by the
Regent/Mayor before formal enactment. The authority for this executive
preview, delegated to the Regent/Mayor,
is explicitly outlined in Article 34 paragraph (1) of the Minister of
Home Affairs Regulation Number 20 of 2018 concerning Village Financial Management. According to this
regulation, the Village Head submits
the draft Village Regulation to the Regent/Mayor
through the Sub-district Head or
equivalent within three days of
approval by the Village Consultative
Body and Village Head, for
evaluation. During this process, the
Regent/Mayor may involve the Village
Head and relevant village officials for assessment.
Should the evaluation reveal non-compliance with higher laws, regulations,
public interest, or the Village's
Financial Plan (RKP), the Village
Head, along with the Village
Consultative Body, must rectify the
issues within twenty working days. Failure to
address these concerns may lead
to the Regent/Mayor's issuance of a decree, in accordance with Article 36 paragraph (1) of the Minister
of Home Affairs
Regulation Number 20 of 2018, rescinding the Village Regulation.
According
to the current
legal framework in Indonesia, as outlined
in Article 8 paragraph (1) and Article 8 paragraph
(2) of Law Number 12 of 2011 concerning the Establishment of Laws and
Regulations, decisions made by the
Regent/Mayor do not hold the same
status or hierarchical position as laws and regulations. Consequently, these decisions cannot serve as legal instruments to annul Village
Regulations. Village Regulations, being legal products classified as regulations, cannot be invalidated by decisions issued
by the Regent/Mayor,
which are considered legal products of a different
nature, specifically in the form of
decisions.
The potential for conflicting
court rulings arises from the
cancellation of Village Regulations, particularly when executive bodies and judicial institutions
both wield authority in this regard. If a Village Regulation is nullified
by a decision from the Regent/Mayor,
the recourse lies in the State Administrative Court. However, if the
appeal is successful, the Regulation reinstated by the Regent/Mayor's decision becomes valid once more. Conversely, Village Regulations classified as laws and regulations
are subject to review by the
Supreme Court, which, if granting the
appeal, renders the Regulations void. This situation
presents a dualism wherein the same
issue is adjudicated differently, depending on whether
it is handled
by the State Administrative Court or the Supreme Court, resulting in legal uncertainty. Despite constitutional guarantees of legal certainty outlined in Article 28D paragraph (1), which ensures equal treatment
before the law, the discrepancy
between these legal processes jeopardizes such certainty.
Conducting
a judicial review of Village Regulations
could potentially overwhelm the Supreme Court with a flood
of cases due to the
vast number of villages in Indonesia. From the perspective
of a unitary state, it seems
reasonable to assert that the
central government holds ultimate authority over subordinate government units, including provincial, district, and city
levels. Consequently, district and city
governments might be granted certain
powers to oversee village governance, possibly through executive review mechanisms. Therefore, it is
advisable that Village Regulations, as legislative outputs of villages, undergo
scrutiny by superior government authorities while still in the draft stage,
before becoming legally binding. Legally, these regulations reflect the specific needs
and characteristics of each village,
established through the exercise of
people's sovereignty via the Village Head
and the local
Village Consultative Body, with input
from the community. This input can be
provided both verbally and in writing during the drafting process.
If the content of these regulations
conflicts with higher laws, administrative
review alone may not suffice; judicial review should ideally be available to
address such discrepancies. Despite being considered a form of legislation,
Village Regulations are unique as village governments craft them under the
oversight of regional authorities. Therefore, the authority to
assess them should not be limited
to the Supreme Court alone.
With
many Village Regulations being cancelled by the
Regent/Mayor because they are contrary to the provisions
of higher laws and regulations,
public interest and/or decency,
the steps that the Government
should take before carrying out repressive supervision should also be to
optimize in guiding the Village, especially
the making of Village Regulations. Inappropriate draft Village Regulations are immediately returned for revision, so
that the possibility of errors in making Village Regulations can be minimized as far as possible.
According
to the explanation
provided earlier, pursuant to Article
8 paragraph (2) of Law Number 12 of 2011 regarding the Establishment
of Laws and
Regulations, as Village Regulations are considered a form of legislation,
and in accordance with Article 87 of Government Regulation
Number 43 of 2014 regarding Regulations for the Implementation
of Law Number 6 of 2014 concerning Villages, together with Article 17, particularly Article 20 paragraph (3) of Minister of Home
Affairs Regulation Number 111 of 2014 concerning Technical Guidelines for Regulations in Villages, the annulment of
Village Regulations by the Regent/Mayor
is deemed to violate the
Fundamental Law, specifically Article
24A paragraph (1) of the 1945 Constitution of the Republic of Indonesia
CONCLUSION
Based on the study's findings, the author concluded two main points: First, the validity of Village Regulations regarding Village Revenue and Expenditure Budgets, established without undergoing evaluation by the Regent, remains intact. Although such regulations, determined solely by the Village Head without undergoing evaluation, violate Article 69 paragraph (4) of Law Number 6 of 2014 concerning Villages, the Regent/Mayor lacks the authority to annul these regulations under Article 36 paragraph (1) of Minister of Home Affairs Regulation Number 20 of 2018 concerning Village Financial Management. This is because the mentioned article's provisions are applicable only if the Village Head fails to heed the Regent/Mayor's evaluation, thus maintaining the status of the Village Regulation. However, it may be subject to judicial review or constitutional scrutiny under Article 24A paragraph (1) of the 1945 Constitution of the Republic of Indonesia, which the Supreme Court conducts through a judicial review process. Second, the Regent's authority to revoke Village Regulations on Village Revenue and Expenditure Budgets, disregarding the Regent's evaluation as per Regulation of the Minister of Home Affairs Number 20 of 2018 concerning Village Financial Management, contradicts Article 24A paragraph (1) of the 1945 Constitution of the Republic of Indonesia. According to relevant laws and regulations, such as Law Number 6 of 2014 concerning Villages, Government Regulation Number 43 of 2014 concerning Regulations for the Implementation of Law Number 6 of 2014 concerning Villages, Minister of Home Affairs Regulation Number 111 of 2014 concerning Technical Guidelines for Regulations in Villages, and Minister of Home Affairs Regulation Number 20 of 2018 concerning Village Financial Management, the annulment of Village Regulations is executed through executive review. Nonetheless, this conflicts with Article 24A paragraph (1) of the 1945 Constitution of the Republic of Indonesia. Therefore, in alignment with these provisions, considering Village Regulations as laws and regulations under the Law, their annulment should proceed via judicial review before the Supreme Court.
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Copyright holder: Hendro Kusuma
Jaya, Moh. Muhibbin
(2024) |
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First publication rights: International Journal
of Social Service and Research (IJSSR) |
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