2785 6325 1 SM
2785 6325 1 SM
2785 6325 1 SM
ABSTRACT
The position of village regulations after ratification of Law Number 6 of 2014 concerning Village
Regulations is as Legislation Regulations other than legislation listed in the hierarchy in accordance with Article 7
paragraph (1) of Law Number 12 of 2011. The formation of a democratic perdes must reflect community
participation. will avoid adverse effects on the village community. BPD as an institution that carries out
government functions in the village should collaborate with village officials in the formulation of a Village
Regulation in a participatory manner by accommodating things that are the aspirations of the village
community and the needs of the village community. However, the BPD cannot carry out its roles and
functions as stipulated in the law and must refer to the making of village regulations based on community
participation. The Village government should address the obstacles faced in the formation of the Village
regulation by holding regular/consolidation meetings between village apparatus and the BPD, as well as the
community.
KEYWORDS: Village regulations, village regulations position, regulation decisions.
ABSTRAK
Kedudukan peraturan desa setelah disahkannya Undang-Undang Nomor 6 Tahun 2014 tentang
Peraturan Desa adalah sebagai Peraturan Perundang-undangan selain peraturan perundang-undangan yang
tercantum dalam hierarki sesuai dengan Pasal 7 ayat (1) Undang-Undang Nomor 12 Tahun 2011. Pembentukan
perdes yang demokratis harus mencerminkan partisipasi masyarakat. akan menghindari dampak buruk bagi
masyarakat desa. BPD sebagai lembaga yang menjalankan fungsi pemerintahan di desa harus bekerjasama
dengan perangkat desa dalam penyusunan Peraturan Desa secara partisipatif dengan mengakomodasi hal-hal
yang menjadi aspirasi masyarakat desa dan kebutuhan masyarakat desa. Namun BPD tidak dapat
menjalankan peran dan fungsinya sebagaimana diatur dalam undang-undang dan harus mengacu pada
pembuatan peraturan desa berdasarkan partisipasi masyarakat. Kendala yang dihadapi dalam pembentukan
Perdes tersebut harus segera ditanggapi oleh Pemerintah Desa dengan mengadakan secara
berkala/konsolidasi antara perangkat desa dengan BPD, serta masyarakat.
KEYWORDS: Peraturan desa, posisi peraturan desa, keputusan peraturan.
I. INTRODUCTION
Whereas the village government authority can be ascertainedin the Article 18 and
Article 19 of Law Number 6 of 2014 concerning Village. The Article 18 of Law Number
6 of 2014 states that,
Looking from the above village government authority, it can be stated that a village
has a legitimation in managing the village government. From the above explanations,
a village has strategic position as the spearhead and as a benchmark in implementing
and evaluating integral national development. In carrying out village governance,
there are village officials, one of which is Village Consultative Body (BPD) as an
institution which implements the function of government in a democratic manner.
Law of 23 of 2014 Jo.Law Number 9 of 2015 Concerning Local governments replace the
representative system in the form of Village Consultative Body (BPD). The Article 210
Law of 32 of 2004 clarifies that the members of BPD are representatives of the
residents of the village concerned who are determined by way of deliberation and
consensus.
Rules in deliberation often appear to determine who is the community leader
involved in the BPD; the rule is the elected appointment of a community leader who is
considered close to the Village Head. The result is that there is no access for ordinary
people to participate as members of the BPD. The function of the BPD is also
eliminated, in which it is only establishing a Village Regulation with the village head,
accommodating and channeling community aspirations. This contradicts to what is
explained in Law Number 6 of 2014 concerning Villages that BPD or what is referred
to by other names is an institution that carries out government functions whose
members are representatives of the village population based on regional
representation and determined democratically.
This contradicts to what is explained in Law Number 6 of 2014 concerning Villages
that BPD or what is referred to by other names is an institution that carries out
government functions whose members are representatives of the village population
based on regional representation and determined democratically. In the Village
government administration, the Village Government is the village head or what is
referred to by any other name assisted by village officials as an element of village
administration. The BPD has responsibility to supervise and request information
about the implementation of village government from the village government. The
weak participation of the community and community educators in the village is
another side of the weak practice of democracy at the village level. Hitherto, village
elites have no understanding of Village Regulation (Perdes), and the village
government. All matters related to Village Regulations, Village Development, Village
Financial management, Village Finance are all village rights and obligations that can
be valued in money as well as everything in the form of money and goods related to
the implementation of village rights and obligations, and the village government is
completed only in head of village. To realize the objectives of Village regulation, the
regulations as intended aim to realize the effectiveness of village government
administration, accelerate the improvement of the welfare of village communities,
accelerate the improvement of public service quality, improve the quality of village
government governance, and increase the village competitiveness, as referred to in
Article 7 paragraph (3) of Law Number 6 of 2014 concerning Villages, a Village
Regulation (Perdes) is needed as a binding legal rule and guidelines.
Therefore, it indicates how important the Village Regulation (Perdes) is in running
the village government. However, the problem that arises is that the village head,
using his authority as head of village, drafts a Village Regulation (Perdes) that should
be done together with the BPD. The Village Consultative Body (BPD) is an institution
that carries out government functions whose members are representatives of the
village population based on regional representation and determined democratically.
He did it himself with development planning he did both the village secretary with a
sharing system for both. The law Number 6 of 2015 Concerning Village explicated that
what is meant by village apparatus consists of the village secretary, regional
implementation, and technical implementation. Additionally, there is a BPD which
has the function to discuss and approve on the village head plans with the village
head.
Based on the explanation in the introduction which contains the background of the
existing legal problems, the BPD as an institution that carries out government
functions in the village should collaborate with village officials in the formulation of a
Village Regulation in a participatory manner by accommodating things that are the
aspirations of the village community and the needs of the village community.
However, the BPD cannot carry out its roles and functions as stipulated in the law and
must refer to the making of village regulations based on community participation.
Departing from the background of the problem above, the authors found legal
problems i.e. how the position of village regulations in the hierarchical system of Laws
in Indonesia and how to establish participatory democratic village regulations. The
answers to these questions will show to the reader about the position of village
regulations and the establishment of participatory democratic village regulations.
As detailed above, in carrying out the governmental authority, the village needs a legal
instrument that is used as a means of running the wheels of the village administration.
The legal instruments used are Village Regulations, Village Head Regulations, and
Village Head Decrees. From the explanation of Article 55 Paragraph (3) of Regulation
Number 72 of 2005, it is clear that the position of village regulations is a further
elaboration of higher legislation.
In the Article 7 Paragraph (1) of Law Number 12 of 2011 concerning the types and
hierarchy of rules in Indonesia that consist of:
1. The 1945 Constitution of the Republic of Indonesia;
2. People's Consultative Council Decree;
3. Law/Government Regulation In Lieu of Law;
4. Government Regulation;
5. Presidential Regulation;
6. Province Regulation; and
7. Regency/Municipality Regulation.
Based on the elucidation above, it indicates that the formation of Village Regulations
adheres to participatory and responsive principles since it involves the community in
its formation process, as well as it must provide opportunities for the community thru
the BPD to inquire and/or ask for further information on matters relating to the
accountability. In the general explanation of Law Number 23 of 2014, it is stated that
the village head is basically responsible to the community of the village who in the
procedures and procedures of their responsibility are conveyed to the Regent or
Mayor through the sub-district head. The village head is obliged to provide a
statement of the accountability report to the BPD and to the people to convey
information on the main points of accountability but it is still intended.
F. Position of Village Regulations Post Law Number 12 Year 2011 Concerning the
Formation of Legislative Regulations
Position of Village Regulations, hierarchy of Legislation. Prior to the enactment of Law
Number 12 of 2011 concerning the Formation of Legislative Regulations, village
regulations are one of the categories of regional regulations which includes the type
and hierarchy of statutory regulations as stipulated in Article 7 paragraph (2) letter c
after the enactment of Law Number 12 of 2011, the village regulations are no longer
explicitly stated as a type and included in the hierarchy of statutory regulations.
G. The Establishment of Democratic Village Regulations
The formation of democratic regulations based on community participation is based
on presenting formal village leaders, village structures, (Village apparatus) i.e.
neighborhood,hamlet, and presenting informal community leaders i.e. traditional
leaders, religious leaders, youth leaders, and women leaders in the village. Since the
formation of village regulation (perdes) is undemocratic, it will have a negative impact
on the community of the village.Village regulations establishmentshould be based on
the principles of Village administration, namely legal certainty, orderly governance,
orderly public interest, openness, proportionality, professionalism, accountability,
effectiveness and efficiency, local wisdom, diversity, and participation, responsiveness,
aspirational, democratic, and not orthodox. In substance, the formulation of Village
regulations needs to be complemented by academic studies, so that the Village
regulations that are compiled can really answer the needs of the Village community
and answer the problems to be regulated, while the preparation of academic studies
becomes important. In academic studies, there are three substance problems, namely
(1) Answering the question of why a new Village Regulations (perdes)are needed, the
scope of content material and the main components of the Village Regulations
(perdes), and (3) the process that will be used to draft and validate the Village
Regulations (perdes).
The district government has the authority to carry out a guidance and supervision of
the implementation of Village Administration, in which it is in accordance to the
mandate of Law Number 6 of 2014 concerning Villages and Government Regulation
Number 79 of 2005 concerning Guidelines for Guidance and Supervision of Regional
Government Administration. Guidance and supervision are intended so that the
authority of the Village in implementing the Village autonomy is not mistaken. The
stages of drafting a Village Regulations (perdes) are (1) problem identification, (2)
identification of the legal baseline or legal basis and how the Village Regulations
(perdes) can solve the problems, (3) preparation of technical studies, (4) following the
drafting procedure for the Village Regulations (perdes). The next stages are the
preparation of the Village Regulation Draft (Raperdes) within the BPD, the
preparation of the Village Regulation Draft (Raperdes) in the Village Government, the
process for obtaining the BPD approval, the legalization process, Village sheets, and
the mechanism of village regulation monitoring. The BPD carries out its functions, the
function of articulation and aggregation of the citizens’ interests, the legislative
function (making village regulations together with the village head), the budgeting
function (making the Village income and expenditure budget), 4. The controlling
function (supervision). The formulation of Village Regulations without democratic
participation has an impact on the attitudes of the communities, the productivity of
village regulations and the village government. The communities do not respect the
village regulations, this can ensue since the communities are not given information
about the Village Regulation draft by the Village Government. The communities
generally still have a strong legal culture, which is based on patronyms and egoism,
because they are not used to it, submitting opinions or asking directly to the village
leadership, it is more passive. The communities obey to what the Village Head says or
orders. The solution is that the Village regulations must be informed to the
communities, either at the preparation stage (Raperdes), discussion or
implementation or evaluation (perdes). Changing the legal culture of the Village
community from a patronyms legal culture to an egalitarian culture that must be
spearheaded by village government officials and BPD members, as well as community
leaders. In addition to the Village Head and BPB establishing communication with the
villagers, due to good communication, a participatory democratic perdes will be
created.
Two-way or reciprocal communication will be established. Enlightenment of the mind
so that the communities do not feel indoctrinated, yet there is freedom of speech
according to their thoughts and conscience.The village government also does not feel
that they are imposing their will, because what is the concept or design of the village
government has been studied and discussed in a balanced manner with the
communities. The realization of a unity of the word, movements and steps between
the village government and communities in constructing the village, especially in
constructing a participatory democratic village. (Sutrisno PHM, 2012) The formation
of a village regulation, built responsively, responding to the wishes of the community,
the development of Village regulations that will be realized, must be in accordance
with the goodwill of the community. To the Village and BPD, in themechanism
planning for the formation of a perdes, which is democratic, not authoritarian, should
be in accordance with the opinion of Moh Mahfud MD. Certain political
configurations will affect certain legal products. (Mahfud MD, 2010) The power
holders in the village, in the formation of perdes, if it is implemented in a democratic
way will create a responsive product character, in contrast, if the village power holder
in the formation of perdes is authoritarian, it will produce the character of a
conservative or orthodox Village law product. Based on the opinion of Moh Mahfud
MD, the conservative or orthodox character of Village law products will harm the
rights of the Village community. Finally, the village law product cannot be
implemented to build the village properly (Good Governance).
The formation of a democraticperdes; the democratic, comes from the word demos
which means "people" and kratein which means "power". This means that the people
have the power to carry out the village administration. Democracy is considered as the
most popular system, the best system in regulating the relationship between the
people and the rulers. The formation of perdes needs to apply a legal system.
According to Lawrence M. Friedman, the legal system consists of three components,
structure, substance, and legal culture. The structure of the Village Head and BPD,
must be completely created by the institution. The Village Institution consists of the
Village Head/Pekon, Secretary, Treasurer, administrators of other fields,
neighborhood/hamlet, and Village Deliberative Council/Village Consultative Body.
The substance of village administration, in Law Number 6 of 2014 concerning Villages,
is good enough, the implementation of democratic, participatory village regulations
must be in accordance with the legal substance of village administration, as regulated
in Article 24 of Law Number 6 of 2014 concerning Villages, namely legal certainty,
orderly governance, orderly public interest, openness, proportionality,
professionalism, accountability, effectiveness and efficiency, local wisdom, diversity,
and participation. However, in the implementation of the law substances, it has not
been fully implemented. This can be due to the lack of village governance, based on
the principles of justice, utility, and benefit. If it is analyzed using the theory of law
work by Robert B. Siedman. The legal system will work, if it is influenced by the social
forces, of which forces moves the law; moreover, the social forces consist of political
economy and legal culture. The legal culture is divided into two, namely the internal
legal culture of village government and the external legal culture of government
(Village, Village Head and BPD). Legal culture is a good attitude or behavior, values,
views of society.
The formation of Village Regulations must also apply a good system, where the
structures (Village Head and BPD) work well, implement a good legal culture,
attitudes, behavior, values, and views of the community, which obeys the law.
Additionally, the application of the legal system by the internal structure of the
Village Head and BPD needs to apply a legal culture, so that the formation of perdes
will run well. Moreover, legal culture conducted by the external of village head and
BPD also needs to be implemented; thus, the formation of village regulation will run
well.
According to Soerjono Soekanto, a legal culture is a non-material culture or spiritual
culture. The core of legal culture as non-material or spiritual culture is values which
are abstract conceptions of knowing what is good (so it must be obeyed) and what is
bad (so it must be avoided).These values are the basic ethics (about what is good and
bad) that contains of (orders, prohibitions and permissions) and human behavior
patterns as well. The values are at least 3 (three) aspect i.e. cognitive, affective, and
conative aspects. The cognitive aspect is related to the ration or thought; the affective
aspect is related to feeling and emotion; while the conative aspect is related to the will
to do or not do. Darmodiharjo and Shidarta postulate that a legal culture is actually
synonymous with legal awareness, in which it is a legal awareness of the legal subject
as a whole. A legal culture is an important component in the law system, loss of these
components, it will weaken and eliminate the meaning of other components.
Friedman asserts that a legal culture functions as a motor engine justice. The
formation of village regulations (perdes) applies fair regulations for the people of the
Village. Justice must be felt by everyone, not enjoyed by a few.Laws apply universally
and continuous in relation to the rules of nature. The law never changes and never
disappears and applies itself. Justice is not enough to just be guided by the articles; it
is necessary to pay attention to the sense of justice for humans.According to Werner
Menski, a law is a universal phenomenon, yet it is manifested in several different ways;
legal experts as professionals and theorists have tended to centralize the law to
minimize non-state sources of law, including ethics and especially society and cultural
elements, seriously planning to live with various regulatory systems, whether
something is legal or not finally. Refers to the statement of Werner Menski, the law is
only rules that must be obeyed, with values, attitudes and views that are good to be
obeyed and implemented, do not stick to written regulations, because there are
regulations that are not written abstractly, relating to the legal culture.
B. Suggestions
For the suggestions, it is better if the Village Government in the process of
forming Village Regulations which includes the Village regulation program must
receive evaluation and supervision from the Regent/Mayor. Concerning to this,
testing of village regulations is carried out with an executive preview and/or
executive review testing process which is the authority of the Regent/Mayor. The
Village government should address the obstacles faced in the formation of the
Village regulation by holding regular/consolidation meetings between village
apparatus and the BPD, as well as the community; the village head brings in tutors
from the sub-district to provide direction on the village regulations, the village
government always consolidates and urges the community to participate active in
constructing the village regulations.
REFERENCES