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Constitutional and legislation part 2 (Legislation (Hierarchy of…
Constitutional and legislation part 2
Constitution and legislation
Legislation
Definition
General
oxford dictionary: The process of making and processing law
In Indonesia it means that the law made by the legislative and executive / Every law made by them
Narrow
Provincial regional regulations
Municipal regional regulations
Acts (Undang-undang)
Village regulations
Types of Legal System
Common law
Definition
Legal system with a judge made law
Example of states
England, Australia, and New Zealand
Advantages
Able to adapt quickly
Disadvantges
Judge has too much power
European continental law
Definition
Legal system with a codified law
Example of states
France, Netherlands, and Indonesia
Advantages
Give legal certainty
Accepted and implemented by majority
Independent and Impartial judges
The government implement law and is a subject
Court decisions are executed
Law is clear, constant, and acessible
Disadvantages
Less flexible and late to adapt
Hierarchy of Legislation
Definition
Stefenbau theory by Hans Kelsen
There is a hierarchy of law where the creation of lower law is determined by a higher law which is terminated by a highest basic norm as the supreme reason of validity of the whole legal order
the hierarchy based on Hans nawiasky
Basic norms
Laws
Regulations
Fundamental legal norms
The hierarchy based on Hamid Attamimi
Basic Norms = Main provisions of the constitution, MPR stipulation, and constitutional conventions
Law = Act or UU
Regulations = Govt., presidential, provincial, and municipal regulations
Fundamental Legal Norms = UUD 1945
Good legislation principles
Establishment of laws
Executable/enforceable
Efficient/effectiveness
The conformity between types, hierarchy and content / substances
Clarity of provisions
The proper organs/institution
Transparance
Clarity of purpose
Content of laws
Family principle
Kenusantaraan principle
Nationality
Bhineka Tunggal Ika
Humanity
Fairness
Protection
Equality before law
Legal certainty
Harmonious principle
Legislation Basis
Sociological basis
Von Savigny states "Law is the volkgeist of a society. Law is not made but it grows with society
Law and regulations should reflect the reality of the people
Law should see the trend so that law can be used in the present and in the future
Bagir Manan theories in enactment of legal norms in sociological aspect
Power based theory : The enactment of legal norms does not consider the reception of the community
Theory of acknowledgment : The enactment of legal norms considers the reception of the community
Philosophical basis
The establishment of law and regulations should adopt the philosophical values of the country
Every country determines its philosophical values and such values should be referred in establishing law and regulations
Should always try to achieve welfare and juctice
Juridicial basis
Conformity between types / the form of the law and regulation and their consent
Following certain procedures
There should be an authority from relevant institution to establish law and regulation.
Does not contradict with higher level of law and regulation
Law making process
National level
Drafting
Academic draft
Bill
Discussion and enactment
Level 1
Discussion on list of problems
Short opinion on the draft
Explanation of draft and response
Level 2
Opinion of the president
Submission of the draft to the president
Approval of the draft from fractions
Signed by the president
Final report on the draft
Planning
National Legislation Plan (Long Term)
National Legislation Plan (Yearly)
Academic Draft
Put in the state gazette
Local level
Drafting
Discussion and enactment
Planning
Put in the state gazette
Civil society