Ministerial Authority in Formulating Regulations Related to Presidential Lawmaking Doctrine

Abstract

As ministerial regulations increasingly play a larger role in government administration, they have become one of the main forms of legislation. This has resulted in a significant increase in the quantity of ministerial regulations, including those formed under the mandate of higher regulations, and those formed under the authority of ministers. According to the doctrine of making presidential laws, the president has a constitutional mandate to form implementing regulations for laws (delegated legislation). This normative research examines the basis for the formation of ministerial regulations in a presidential system. It analyzes quantitative data by using samples from ministerial regulations issued between 2005 and 2020 by 12 ministries. The analysis reveals that 65% of ministerial regulations come from ministerial authority (attribution), while 35% stem from higher regulatory directives. This has resulted in a proliferation of ministerial regulations in Indonesia. In the presidential system, the president holds the authority to formulate implementing regulations, with ministers acting as presidential aides and not lawmaking agents. Nevertheless, the unchecked formation of ministerial regulations on the basis of authority has contributed to a power imbalance, wherein ministerial regulations have gained ascendancy at the expense of presidential legislation products. This divergence from the Indonesian Constitution’s Article 4, Paragraph (1), and Article 5, Paragraph (2) dilutes the role of presidential legislation products as implementing regulations. It deviates from the established tenets of the presidential system in Indonesia, wherein the president is designated as the law executor rather than the minister.