AUTHORITY OF STATE INSTITUTIONS IN ESTABLISHING LAWS UNDER THE CONSTITUTION OF THE DEMOCRATIC REPUBLIC OF TIMOR-LESTE
Author: Dr. Lourenco de Deus Mau Lulo, L.Dir., MD.
Email:enco681@yahoo.com/lourencodedeusmaululo2019@gmail.com
Faculty of Law Peace University of Timor-Leste (UNPAZ) Supervisor:
1. Prof. Dr. I Gusti Ngurah Wairocana, SH., MH 2. Prof. Dr. I Wayan
Parsa, SH., M. Hum 3. Dr. I Nyoman Suyatna, SH., MH
CHAPTER I PRELIMINARY 1.1Background Problems
Timor-Leste is a democratic legal state,
as stipulated in the Preamble to the Constitution of the Democratic Republic of
Timor-Leste that, "it is necessary to establish a democratic and
institutional culture that is appropriate for a rule of law, where respect for
the Constitution and for democratically elected institutions, is a foundation
that cannot be questioned. By interpreting deep feelings, ideals and trust in
God from the people of East Timor. "With regard to the division of
authority of state institutions according to the provisions of the Constitution
of the Democratic Republic of TimorLeste, there is uncertainty, because Article
69 that, state institutions in carrying out their functions must comply with
the principle of separation of powers and interdependence according to the
Constitution. In addition, the authority to form legislation is owned by
legislative and executive bodies. In a dissertation entitled "The
Authority of State Institutions in the Formation of Legislation Based on the
Constitution of the Democratic Republic of Timor-Leste" this study was
carried out on the issue, based on the legal aspects of the law, namely: legal
philosophy, legal theory and legal dogmatic. Philosophical aspects, the
authority to form legislation is the authority of attribution obtained through
the constitution. In terms of ontology, in the context of the rule of law, the
source and limits of power are determined by law and must be used in the
corridor of law. Epistemologically, in order to avoid the accumulation of power
that can lead to acts of abuse of power, the concept of a state of law also
requires separation or division of powers. From an axiological aspect, power is
decisive not only because it is obtained by subjecting the weak party through
physical strength, but rather lies in the power of the voice of human
conscience. As formulated in the opening third paragraph of the Constitution of
the State of Timor-Leste that, "it is necessary to establish a democratic
and institutional culture that is suitable for a rule of law, where respect for
the Constitution and for democratically elected institutions is a basis that
cannot be questioned. Furthermore, the fourth paragraph, which states that
"By seriously reaffirming its determination to fight all forms of tyranny,
oppression, control and separation of social, cultural and religious, to
maintain national independence, respect and guarantee human rights and rights
the human rights of citizens, to ensure the principle of separation of powers
in the structuring of the State, and to establish the basic core rules of
multi-party democracy, with the aim of building a just and prosperous country
and developing a united and friendly society. "Theoretical aspects, the
authority of state institutions in the formation of laws and the development of
human rights, democracy and the division of power, can be justified through
several theories, namely: the theory of trias politics, the theory of
authority, and the theory of legislation. Based on the theory of Trias politics
proposed by Montesquieu that, in every country there are always three branches
of power organized into government structures, namely: Legislative, Executive,
and Judicative which relate to the establishment of laws and laws of the State.
Theory of authority, said that, authority is a formal power that is owned by an
official or institution, therefore, authority is a right that is owned by an
official or institution that acts to exercise its authority, based on the
prevailing laws and regulations.
Juridical aspect, the division of
authority of state institutions in the formation of laws, according to the
provisions of Article 69 of the RDTL Constitution of 2002 states that, state
institutions in carrying out their respective functions must follow the
principle of separation of powers, and the principle of separation of powers in
question, that state sovereignty institutions, must be separated both in their
form and in carrying out their respective functions. In the formulation of the
sentence "interdependence" can be interpreted that, among state
institutions in carrying out their authority functions not separately, because
there are sentences of interdependence, such things will affect the process of
governance, because of the intervention of political interests between state
institutions that mutually other.
Sociological aspects, the authority of the
Government in carrying out its duties and functions as a public service is not
efficient, because the government as an executive institution as well as a
legislative body, this will have an impact on the abuse of authority and
arbitrariness in carrying out its functions.
Starting from the above description, in
the writing study of this Dissertation, it only focused on the authority of
State institutions in the formation of laws which were limited to the authority
of the legislative institutions and the authority of the executive institutions
in the formation of laws based on the RDTL Constitution. The formulation of the
research title is as follows: "Authority of State Institutions in
Establishing Laws
Under the Constitution of the State of the Democratic
Republic of East Timor."
1.1 Problem Formulation
Based on the background description above,
the researcher identified the problems examined as follows:
1)
The philosophical foundation of the authority of
State institutions in the formation of laws based on the Constitution of the
Democratic Republic of Timor-Leste
2)
Distribution of authority over material content
of the law between the National Parliament and Government.
3)
Application of a draft law based on the
Constitution of the Democratic Republic of Timor-Leste.
1.2 Scope
The scope of the problem in this study is:
1. Conduct an assessment of the
philosophical foundation of the authority of state institutions in the
formation of laws based on the Constitution of the Democratic Republic of
Timor-Leste.
2
Conduct an assessment of the distribution of the
material authority of the contents of the law between the National Parliament
and the Government
3
Conduct an assessment of the applicability of
the proposed draft law from the Government regarding legislative licensing.
1.4. Research purposes
Basically, every scientific writing has
goals to be achieved, therefore, in this writing can be stated general goals
and specific objectives as described below.
1.4.1 General Purpose
The general objective of this research is
to analyze holistically and critically on the philosophical, theoretical,
juridical, and sociological rationale of the authority of State institutions in
drafting legislation both legislative and executive institutions and analyzing
the applicability of proposed legislation from the National Parliament and the
Government.
1.4.2 Special Purpose
Based on the problems examined in this
study, there are specific objectives as follows: a) Conduct an analysis of the
philosophical foundation of the authority of state institutions in the
formation of laws based on the Constitution of the state of the Democratic
Republic of Timor-Leste. b) Analyze the nature of the distribution of material
authority in the contents of the law between the National Parliament and the
Government under the Constitution of the country of the Democratic Republic of
Timor-Leste c) Conduct an analysis of the importance of the juridical
provisions of the application of laws established by the executive body based
on the constitution and in the implementation of the State Government of the
Democratic Republic of Timor-Leste.
1.5 Benefits of Research
Writing a scientific work is certainly
beneficial for every academic institution, government, researcher or individual
who needs it. Therefore, in this writing the benefits achieved can be divided
into theoretical benefits and practical benefits as follows:
1.5.1 Theoretical Benefits
Theoretically, this research is expected
to contribute ideas for the development of Legal Sciences, especially in the
State Law and State Administration Law, in addition, provide thought and
knowledge about the principles of the formation of legislation in the RDTL
Country.
1.5.2 Practical Benefits
In practical terms, the results of this
study are expected to contribute to the thinking of science in general and
especially Constitutional Law and State Administration Law, and this research
is expected to solve the problems often faced by State institutions, especially
the authority of State institutions in the formation of laws. in general and in
particular the Republic of Timor-Leste's Democratic Republic.
1.6 Research Methodology
This section outlines the research methods
used, to analyze the "authority of state institutions in forming laws,
based on the Constitution of the Democratic Republic of Timor-Leste". The
term research method consists of two words, namely the word method and the word
research. The word method comes from the Greek language methodos which means
the way or to a road. While research is a thorough examination and
investigation.
1.6.1 Type of research
The type of research used in the writing
of this dissertation is the type of normative legal research that focuses on
the problem of the existence of blurred norms between Article 69 of the 2002
RDTL Constitution, the principle of separation of powers, and Article 97 of the
2002 RDTL Constitution, concerning the initiative of the law. Furthermore,
Article 96 concerning legislative licensing by the National Parliament to the
Government and the material for legislative licensing to the Government as
stipulated in Article 96 paragraph (1) Letter (a) to (l), and paragraph (3)
Article 96 states that, the law regarding legislative licensing cannot be used
more than once and is no longer valid when the Government is terminated, with
the expiration of the legislative period or with the dissolution of the
National Parliament.
1.6.2 Type of Approach
Jhony Ibrahim explained that in normative
legal research several models of approaches can be used: statute approach, case
approach (comparative approach), historical approach, philosophical approach
(philosophical approach) and conceptual approach (conceptual approach).
1.7 Source of Legal Material
In normative legal research, a source of
legal material consisting of primary source authorities such as laws, court
decisions and secondary sources (secondary sources or authorities) is used,
such as books written by experts, various articles law reform organization and
others.
1.7.1 Primary Legal Material
Primary legal material is a legal material
that is authoritative, meaning that it has authority. Primary legal materials
consist of legislation, minutes in the making of legislation and decisions of
judges.
1.7.2 Secondary Legal Materials
This secondary legal material consists of
literature and papers, scientific works, journals and articles relating to the
object of research, including articles obtained through internet search.
1.7.3 Legal Materials
Tertiary legal material is a legal
material that supports primary legal materials and secondary legal materials by
providing understanding and understanding of other legal materials, such as the
Indonesian Big Dictionary and Legal Dictionary.
1.7.4 Legal Material Collection Techniques
The collection of legal material used in
this study is to use the literature study method to obtain primary and
secondary legal materials, which have been synchronized systematically and then
studied further based on existing legal theories so that scientific formulation
can be obtained to answer the legal issues discussed in this legal research.
1.7.5 Legal Material Analysis Techniques
To get results on the problems under
study, the primary legal materials and secondary legal materials, with the
legal materials analysis techniques used in this study are analytical
techniques "description, interpretation, evaluation, argumentation and
systematization. Description techniques are a condition or position of legal or
non-legal propositions.
1.8 Writing Systematics
Based on the problem formulation,
research objectives, and research design as described above, this study is
presented in a system consisting of four chapters as follows: CHAPTER I In the
form of a preliminary chapter consisting of background, problems, objectives,
benefits of research, theoretical basis, research methods, and research
systematics; CHAPTER II Discusses the theoretical foundation. In this chapter,
outlines several theories, concepts, and principles related to the above
problems both in general and specifically about the authority of State
institutions in the formation of laws; CHAPTER III The form of discussion of 2
(two) problems, namely, first, the philosophical basis for the division of
authority of state institutions in the formation of laws based on the
Constitution of the Democratic Republic of Timor-Leste; and second, the
division of authority over the material content of the law between the National
Parliament and the Government; CHAPTER IV In the form of discussion of problem
3, outlines the applicability of proposed legislation based on the Constitution
of the Democratic Republic of Timor-Leste; and the last is Chapter V Concluding
remarks and suggestions.
THEORETICAL FOUNDATION
2.1 Trias Politica Theory
The Democratic Republic of Timor-Leste,
is a democratic rule of law, has 4 (four) state sovereignty institutions,
according to the provisions of Article 67 of the RDTL Constitution of 2002 that
State sovereignty institutions consist of: President of the Republic, National
Parliament, Government, and Court. The country's sovereignty institutions, in
carrying out their functions, must follow the principle of separation of
powers, according to the provisions of Article 69 of the RDTL Constitution of
2002 that state sovereignty institutions, in relation to each other and in
carrying out their functions, must follow the principle of separation of powers
and interdependence established in the Constitution. The idea of establishing
this state institution, based on the theory of trias politics, but not
absolutely implementing the idea of Montesqeiu because in the Constitution of
the Democratic Republic of Timor-Leste, there are 4 high state institutions,
namely the President of the Republic, the National Parliament, the Government
and the Court.
1)
Legislative Powers
According to the provisions of Article 92
of the RDTL Constitution, the National Parliament is an institution of
sovereignty of the Democratic Republic of East Timor which represents all
Timorese citizens and is given legislative authority, supervision and political
decision making. Furthermore, Article 96 paragraph (1) of the 2002 RDTL
Constitution, the National Parliament allows the Government to form a proposed
law.
2)
Executive Powers
Under the provisions of Article 103 of the
RDTL Constitution of 2002, the Government is the sovereign body responsible for
directing and implementing the general policy of the state and is the highest
general government body. Subsequently Article 115 paragraph (3) of the RDTL
Constitution of 2002 stipulates that, the Government has exclusive legislative
authority over matters concerning its own arrangement and working procedures,
as well as for the administration of the State, both directly and indirectly.
3)
Judicial Power or Judicative Powers
In the provisions of Article 118 paragraph
(1) to paragraph (3) of the RDTL Constitution of 2002, it is stipulated that
the Court is a body of sovereignty with the authority to uphold justice, in the
name of the people.
2.2 Authority Theory
In essence, authority is an implication of
legal relations. In state administration law (HAN). The legal relationship that
occurs is between the ruler as the governing subject, and the community as the
subject being governed. This is in line with what was conveyed by A.V. Dicey,
as quoted by Tedi Sudrajat, that:
The administrative law determines (1) the
constitution and the relations of the organs of society which are charged with
the care of those social interests (interests collectively) which are the
object of public administration, by which they are different representatives of
society among the state is the most important, and (2) the relation of the
administrative authorities toward the citizens of the state.
According to R. Sri Sumantri, that authority
is obtained by a person through 2 (two) ways namely by attribution or by
delegation of authority: a) Attribution, which is the authority attached to a
position. In a review of constitutional law, this attribution is indicated in
the authority possessed by government organs in carrying out its government
based on the authority established by the legislator. b) Delegation of
authority (delegation), namely the delegation of authority is the surrender of
some of the authority of the superior to the subordinate to assist in carrying
out the duties of his duty to act alone. Based on the explanation of the theory
of authority above, relating to the authority of state institutions in the
formation of laws according to the provisions of Article 96 the National
Parliament can allow the Government to propose laws is attribution authority.
2.3 Theory of Legislation
The theory of legislation is used in the
research and writing of this dissertation, to justify the norms and explain the
mechanism (process) of the formation of legislation by the legislative and
executive bodies based on the RDTL Constitution and the hierarchy of laws and
regulations, the principles of the formation of regulations good legislation.
2.3.1 Definition of Legislation
In the context of legal formation, the
important thing to note is the grouping of laws, based on their form and
nature, namely in the form of written and unwritten law. The unwritten law in
Timor-Leste's constitution is recognized as being in Article 2 paragraph (4) of
the RDTL Constitution which says that. "The state recognizes and respects
the norms and customs of Timor-Leste that are not in conflict with the
Constitution and any other law, especially with regard to customary law."
The nature and function of the laws and regulations in the concept of the rule
of law are interesting and will always be interesting to do when associated
with the idea of establishing good legislation for several reasons: First; One
element of the rule of law is that every action of the Government / government
must be based on the applicable laws and regulations. In the explanation of
Article 1 paragraph (1) it is said that the State of the Democratic Republic of
Timor-Leste is a country based on law (Rechtsstaat), not based on mere power
(Machtsstaat).
Second; If it is associated with the type
of modern welfare state adopted by the constitution where the Government is
given very broad authority to actively participate in interference in all
socio-cultural and economic fields. With such broad Government authority, if it
is not fenced off with good and fair legal rules, and supervision of the use of
strict authority can lead to arbitrariness from the Government.
Third; In general, the purpose of
legislation is to regulate and organize life in a country so that the people
governed by the law obtain certainty, usefulness and justice in the life of the
state and society.
2.3.2 Act
The law is divided into two, namely the
law in the material sense and the law in a formal sense, which is a literal
translation of "wet in formele zin" and "wet materiёle zin"
known in the Netherlands. The law in the material sense is a decision or decree
of the ruler which is seen from its contents called the law and binds everyone
in general. The law in the formal sense is the decision of the ruler, which is
referred to as law, as seen from the way it was formed.
2.3.3 Legislation of the State of RDTL
Legislation is one of the guidelines in
the process of developing a country based on law, the State of Timor-Leste is a
democratic, democratic state, which gained full independence in 2009, from the
United Nations, through its mission, Unitet Nation Transition of East Timor
(UNTAET). After obtaining full independence, many obstacles faced in the
process of building a nation that just emerged from prolonged suffering for
several centuries living in the colonies of the colonies, one of the obstacles
is the process of development in the field of law, until now the legal problem
has been in the spotlight of the international community in general, and
especially the people of Timor-Leste, they have not felt their rights protected
by law.
2.3.4 Establishment of Law
Establishment of the law is a plan or plan
in shaping the law. The law is essentially a product of the evaluation of
reason which is rooted in human conscience about justice regarding human
behavior and the situation of human life.
2.3.5 Platform for Establishment of the Law
Every statutory law can be said to be good
(good legislation), legal according to law (legal validity) and effective
because it can be accepted by the public naturally and is valid for a long
time, so it must be based on the basis of legislation. Philosophical foundation,
namely the philosophical basis or views or ideas that are the basis of ideals
when pouring desire and wisdom (government) into a plan or draft state
regulation; Juridical foundation, is a legal provision that becomes the legal
basis (rechtsground) for the making of a regulation; Political foundation, is
the line of political policy that becomes the next basis for policies and
direction of state governance. A law is said to have a sociological foundation
if the provisions are in accordance with general beliefs or public awareness.
2.4 Principles for Establishing the Law
The principles of the formation of laws
and regulations used in this Dissertation are very important because the
principles of the formation of laws are the basis or guidelines in the
formation of the law, therefore, the principles of the formation of laws are
used to justify the authority of state institutions in the formation of laws,
which are established by the legislative and executive institutions of the
State of Timor-Leste. These principles are the basis or guidelines that are
used as a basis for thinking, opinion and acting, in accordance with the
provisions that apply and are limited in binding. The limited purpose here is
that, the body or official is authorized to think, opinion and act, must be in
accordance with the principles set forth, must not act outside the principles,
and material content determined, because the Principles of the formation of
legislation is a guideline or a sign in the formation of good legislation.
According to Amiroedin Sjarief, by submitting five principles, as follows: a)
Principle level hierarchy;
b) Legislation
cannot be contested;
c)
Legislation that is specific to the exclusion of
general laws (lex specialis derogate lex generalis);
d) Legislation
does not apply retroactively;
e)
The new law excludes the old law (lex posteriori
derogat lex periori
A more detailed opinion was raised by I.C
van der Vliesdi on the principles of the law of the formation of laws and
regulations, namely formal principles and material principles. Formal
principles include:
1)
The principle of clear objectives (beginsel van
duetlijke doelstelling);
2)
The right organ /institution principle (beginsel
van het juiste organ);
3)
Principles need regulation (het
noodzakelijkheids beginsel);
4)
Principles can be implemented (het beginsel van
uitvoorbaarheid);
5)
Consensus principle (het beginsel van
consensus); While those who enter the material principle are as follows:
a)
The principles of correct terminology and
systematics (het beginsel van duitdelijke terminologie en duitdelijke to
systematiek);
b)
The principle can be recognized;
c)
The principle of equal treatment in law;
d)
Legal certainty principle, The principle of law
enforcement is in accordance with individual circumstances.
The last opinion was expressed by A. Hamid
S. Attamimi, as quoted by Maria Farida, who said that, the establishment of
legislation, which should follow the guidelines and guidance given by the
ideals of the rule of law, termed guiding stars, the principle state of law and
constitutionalism, where a country adopts constitutionalism. Furthermore, A.
Hamid Attamimi, said, if it is connected to the division of formal and material
principles, then the distribution is as follows:
1. Formal
principles:
a)
A clear objective principle.
b)
The principle of the need for regulation.
c)
The right organ / institution principle.
d)
The principle of the appropriate content
material.
e)
Principles can be implemented.
f)
Principles can be recognized.
2. Material
principles:
a)
Principles in accordance with the legal
aspirations and fundamental norms of the state.
b)
Principles in accordance with the basic laws of
the country.
c)
Principles in accordance with the principles of
the state based on law.
d)
Principles in accordance with the principles of
government based on the constitution.
Various opinions expressed by the experts above basically
refer to how a law is formed, in terms of materials that must be contained in
the legislation, as well as the manufacturing techniques, accuracy of the
forming organs and others, deduced from the description of experts, namely:
1) Principles of General law
a)
Legislation does not apply retroactively.
Legislation made only applies to legal events that occur after the legislation
was born. However, ignoring this principle is possible to occur in order to
fulfill community justice.
b)
Principle of hierarchical compliance (lex
superior derogat lex inferior)
c)
Legislation that is specific to the exclusion of
general laws and regulations (lex specialis derogat lex generalis);
d)
The prevailing laws and regulations cancel the
previous laws and regulations (lex posteriori derogate lex periori);
2) Material Principles / Substantive Principles
In general, the principles that can be
used as a reference in assessing the substance / material of the laws and
regulations are:
1)
The values of human rights and gender justice
that have been included in the constitution;
2)
Guarantee of integrity of national law; and
3)
The role of the state versus society in a
democratic country.
In general, the principles that can be
used as a reference in assessing the substance / material of the laws and
regulations are:
a)
The values of human rights and gender justice
that have been stated in the constitution;
b)
Guaranteed integrity of national law; and
c)
The role of the state versus society in a
democratic country.
2.5 Government System Theory
The government system theory is used in
this dissertation, to find out the relationship between executive institutions
and the legislature as a continuation of exploration of the concept of division
or separation of powers.
2.5.1 Parliamentary Government System
The Parliamentary Government System is a
government system in which parliament has an important role in government.
Parliamentary governance system is a system of government in which the
relationship between the executive and the representative body (legislative) is
very close to the following characteristics:
a)
The head of state can be king / queen /
president. However, it is not responsible for all policies taken by the
cabinet.
b)
The head of state is only a symbol of the state
because the head of government is the prime minister.
c)
Parliament has power as a representative body
and legislative body. MPs are elected by the people through elections.
d)
The executive (cabinet) is accountable to the
legislature. If the parliament issues a motion of no confidence in the
minister, the cabinet must return the mandate to the head of state.
e)
In the two-party system, those appointed as
cabinet-formers as well as prime ministers are the leaders of election-winning
political parties.
f)
In many party systems, cabinet formators must
form a coalition cabinet, because the cabinet must get the support of the trust
of the Parliament.
g)
The head of state can overthrow the National
Parliament. Then the cabinet must form a new Parliament through elections.
2.5.2 Presidential Administration System
The presidential system of government is a
government where the executive position is not responsible to the people's
representative body, in other words the executive power is outside the (direct)
supervision of Parliament.
The characteristics of the presidential government system
are:
a)
The President is the chief executive who heads
his cabinet who is all appointed by him and is responsible by him.
b)
The President is not elected by the legislative
body, but is elected by a number of election.
c)
The President is not responsible to the
legislature and cannot be imposed by the legislature.
d)
As a balance, the president cannot dissolve the
legislature.
e)
Quasi and referendum government systems.
2.5.3 Semi-Presidential Government Systems
Mixed government system (mixed system or
hybrid system) is a Government system that seeks to find common ground between
Presidential Presidential Systems and Parliamentary Government Systems. The
dual function of the President as in the
Presidential Administration System, the President is
retained. But as the head of the Government, the President shared power with
the prime minister which led to dual executive systems.
2.4.4 System of
State Administration of the Democratic Republic of Timor-Leste In the
opening of the RDTL Constitution, the third paragraph (three) states that,
"it is necessary to establish a democratic and institutional culture that
is appropriate for a rule of law, where respect for the Constitution and for
democratically elected institutions is a foundation that cannot be questione.
By interpreting deep feelings, ideals and trust in God from the people of East
Timor;
The characteristics of the Government
system based on the provisions of the Timor-Leste Constitution, it can be
concluded that the State of Timor-Leste adheres to its system of government is
a parliamentary system of government. Such matters can be traced based on the
provisions of the provisions of the authority of State institutions in the RDTL
Constitution as follows:
1)
According to the provisions of Article 74
paragraph (1) that, "The President of the Republic is the Head of State
and the symbol and guarantor of national independence and the unity of the
State and the smooth work of democratic institutions. The President of the
Republic of the head of state is only a symbol of the state because the head of
government is the prime minister. The President of the Republic is directly
elected through democratic, free, direct, public and secret elections.
2)
According to the provisions of Article 92, it explains
that, "The National Parliament is an institution of sovereignty of the
Democratic Republic of Timor-Leste which represents all Timorese citizens and
is given legislative authority, supervision and political decision
making." Parliamentarians are elected by the people through elections.
Furthermore, Article 95 of the RDTL Constitution concerning the authority of
the National Parliament paragraph (1), the National Parliament has the
authority and responsibility to make laws concerning basic issues concerning
domestic and foreign policy; and paragraph (2), the National Parliament,
exclusively, has the authority and responsibility to make laws concerning the
contents of which are regulated in the section of letters (a) to letters (q) in
paragraph (2) Article 95 of the RDTL Constitution.
3)
Article 103 explains that, "The Government
is the sovereignty body responsible for directing and implementing the general
policy of the state and is the highest Public Administration body" and
Article 104 paragraph (1) that, the Government consists of Prime Ministers,
Ministers and State Secretaries "Furthermore, the authority of the
Government as stipulated in Article 115 of the RDTL Constitution.
4)
Article 118 of the judicial institution,
paragraph (1) explains that "the Court is a body of sovereignty with the
authority to uphold justice, in the name of the people" hereinafter
paragraph (2), states that, in carrying out its functions, the court has the
right to obtain assistance from Government officials other, and paragraph (3),
that a court decision is binding and is above the decision of any other
authority.
On the basis of the authority of the State
institution as described above, it was concluded that the system of governance
of Timor-Leste was a system of Parliamentary Government.
2.6 Concept of State of Law
Based on the Constitution of the State of
the Democratic Republic of Timor-Leste, in the implementation of the tasks and
functions of state power (functions of state power) must follow the principle
of separation of powers and independence in the implementation of its functions
and interdependence between one institution to another, as stipulated in
Article 69 of the Constitution RDTL in 2002. Historically the development of
the rule of law in classical times contained two main types of state law,
namely the type of continental Europe, which was based on the rule of law
(rechtsouvereiniteit), which had the core of the Rechtstaat (legal state) and
Anglo Saxon type, which had the Rule of Law. Rechtstaat is a concept in
Continental European legal thought which was originally borrowed from German
law, which can be translated as "legal state", "state of
law", "state of justice", or "state of rights" where
the exercise of governmental power is limited by law.
In the concept of the "State of
Law" rechtsstaat, it is idealized that what must be made the commander in
the dynamics of state life is the law and this is in accordance with the RDTL
constitution in Article 1 paragraph (1) and article 2 paragraph (1) and (2).
This is one of the concepts of Supremacy of law. The concept of the State of
Law of East Timor or referred to as the philosophy of the state, namely
"Estado de Direito Demokratiko". Based on the RDTL Constitution, in
the concept of the State of Law of Timor-Leste it also has the goals and ideals
of the State as well as stipulated in the provisions of Article 6 of the RDTL
Constitution concerning the objectives of the state "Objectivo do
Estado". Therefore, the concept of the State of Law of Timor-Leste is the
rule of law of Law Mix (a combination of legal concepts rechtsstaat with the
concept of the rule of law), can be seen from elements of the rule of law based
on philosophical, sociological and juridical grounds, as follows:
1) The philosophical element of "respect for human
dignity" means that the State upholds the values and norms that have been
adopted by the community as inheritance inherent in every citizen, as in the
provisions of Article 2 paragraph (4) explains that, "The state will
recognize and respect East Timorese norms and customs that do not conflict with
the constitution and any other laws that are specifically related to customary
law. 2) The sociological element of the people's desire in the sense that the
process of administering the government with the aim of prospering the wishes
of the people, as stipulated in Article 6 paragraph (1) of the purposes of the
State in the letter (b) explains that, "To guarantee and promote rights
and fundamental freedoms of citizens and respect for the principles of a
democratic state based on the force of law;
3) Juridical Elements, containing "legal
sovereignty" in the sense that, the State of TimorLeste is a State based
on legal force (supremacy Law). Therefore, every act of implementing the
government must be based on the law (the principle of legality). Thus, the
principle of check and balance can be guaranteed well.
Distribution of the authority of state
institutions in the Formation of law between the parliament national and
Government
1.9 The philosophical foundation of the authority of state institutions in the establishment of laws based on the RDTL Constitution
The term "Institution" as defined
by Mac Millan is a set of real relationships of norms, beliefs, and values that
are centered on social needs and a series of important and repetitive actions.
In the RDTL Constitution, the institutions in question, there are those whose
names are explicitly mentioned and there are only those functions that are
explicitly mentioned. According to Jimly Asshiddiqie, these institutions can be
distinguished from two aspects, namely in terms of function and hierarchy. For
that there are two criteria that can be used, namely (i) criteria for
hierarchies of normative source forms that determine their authority, and (ii)
the quality of their main or supporting functions in the state power system.
3.1 Distribution of authority over the material content of
the formation of a Law between the National Parliament and the Government
The application of the division of powers
in Timor-Leste consists of two parts, namely the horizontal distribution of
power and the vertical division of power.
a) Horizontal division of powers
Horizontal division of power is the distribution of power
according to the functions of certain institutions (legislative, executive and
judicial). The division of power at the level of the central government has
shifted, The shift in question is a shift in the classification of state power
which generally consists of three types of power (legislative, executive and
judicial) into four state powers, namely:
1)
The power of the presidential institution, is
the President of the Republic of Indonesia exclusively and exclusively
responsible for: Officially promulgating the law and ordering the issuance of
resolutions from the National Parliament that ratify agreements and ratify
treaties and international agreements; Carry out the authority which is the
core of the functions as Commander of the Armed Forces, and use veto power over
any law within 30 days, starting from the date of receipt; as confirmed in
Article 85 of the 2002 RDTL Constitution.
2)
Legislative power, the National Parliament is
the sovereignty of the state of the Democratic Republic of Timor-Leste which
represents all Timorese citizens and is given legislative authority,
supervision and political decision making. Authority of the National Parliament
as affirmed in Article 95 paragraph (1) of the RDTL Constitution of 2002, that
the National Parliament has the authority and responsibility to make laws
concerning basic issues concerning domestic and foreign policy.
3)
Executive power, is the power to function in
carrying out the laws and administration of the State government. This power is
held by Prime Minister as affirmed in Article 103 that, the Government is the
sovereignty body responsible for directing and implementing the general policy
of the state and is the highest general government body as stated in Article
104 paragraph (1 and 2) that, (1) Government consists of the Prime Minister,
Ministers and State Secretaries, and (2) The Government may have one or more
Deputy Prime Ministers and Deputy Ministers.
4)
Judicial power (judicial), or what is often
called judicial power is the power to conduct justice in order to enforce law
and justice. As stipulated in Article 118 paragraph (1-3), paragraph (1)
Article 124 paragraph (1 and 2) that, paragraph (1) of the Supreme Court is the
highest court and guarantor of uniform law enforcement, and has jurisdiction in
all regions of the country, and Paragraph (2) The Supreme Court is also
authorized and responsible for upholding justice on legal matters, as well as
matters relating to the Constitution and elections.
b) Vertical division of powers
Vertical division of power is a division
of power according to its level, is the division of power between several
levels of government. Article 5 paragraph (1 and 2) (Decentralization), which
states that, paragraph (1), in terms of regional arrangement, the State will
respect the principles of decentralization of general government, and paragraph
(2), the law will determine and determine the characteristics from each
regional level, as well as the authority of each government agency.
3.2 Authority of the National Parliament
The National Parliament is an agency
consisting of representatives of the people who are elected and responsible for
legislation and control of the state's financial budget; House of
Representatives. Arranging the law-making authority under the RDTL State
Constitution consists of the legislative body as an institution that has the
authority to form laws, in addition, constitutionally, the National Parliament
allows the Government to form laws based on Article 96 paragraph (1) In
addition, the Government by Attribution has the authority to form legislation
according to the provisions of Article 97 paragraph (1) section of letter (c)
of the 2002 RDTL Constitution. In paragraph (2) Article 96 KRDTL that, the law
on legislative licensing will determine the principal, understanding, scope and
validity period of the permit, and the permit can be renewed, and paragraph (3)
determines that the law on legislative licensing cannot be used more than once
and is no longer valid when the Government is terminated, with end of the
legislative period or with the dissolution of the National Parliament.
3.3 Authority of the Government
Under the provisions of Article 103 of the
2002 RDTL Constitution, the Government is the sovereign body responsible for
directing and implementing the general policy of the state as the highest
public governance body. Furthermore, Article 104 of the RDTL Constitution The
composition of the government cabinet is as follows:
1) The
Government consists of the Prime Minister, Ministers and State Secretaries.
2) The
government can have one or more Deputy Prime Ministers and deputy Ministers. 3)
Amount, Name and authority of ministries, State Secretariat shall be stipulated
by Government law.
Under the provisions of Article 137 of the
RDTL Constitution (the basic principle of general government) paragraph (1) the
implementation of general government aims to fulfill the public interest, by
respecting the rights and interests of citizens and bodies in the constitution
and paragraph (2) general government will be prepared to prevent excessive
bureaucracy, providing services to the people that are easier to use and
ensuring the input of people who are interested in their management efficiently
and paragraph (3) of the law will determine the rights and guarantees of citizens,
which are related to actions that may be affect their rights and worthy
interests.
3.4 Draft Law
The draft law is one of the stages of the
formation of legislation, to produce legislation that is responsive in
accordance with community expectations, the establishment of laws relating to
the interests of the people needs to be preceded by careful field research and
normative assessment, while the empirical approach aims to find out the
expectations, community support and substantial issues that are regulated.
Establishment of a law that clearly regulates the distribution of authority,
supervision, functions, tasks, good coordination in realizing a clean and
democratic government because it prevents:
a) Utilization
of authority.
b) Abuses.
c)
Corruption, collusion, nepotism.
Thus, the Government's actions in the
development process to avoid acts of abuse of authority, so as to ensure a
clean government, the Government must fulfill the following requirements:
a) Government
based on law.
b) Accountability.
c)
Transparency.
d) Participation.
In the formation of the law, it is
expected to clearly regulate the authority of the Government, so that the
Government does not act outside the authority regulated by law.
3.5 Distribution of Content of the Law
According to A. Hamid Attamimi, that the
content of the law is an important matter to be researched and sought, because
the formation of the law of a country depends on the ideals of the State and
the theory of state adopted, on sovereignty and the division of power in the
state held it.
3.5.1 Content of the Law from the National Parliament
In the process of preparing the proposed
draft law from the National Parliament called Projecto da Lei. Based on the
provisions of Article 92, and Article 95 paragraph (1), 97 paragraphs (1 a and
b), 98, and Article 99 of the RDTL 2002 Constitution, the implementation of the
draft law is an initiative proposed by the National Parliament Members as
regulated in Article 86 Parlamento Nacional 2002 (RDTL National Parliamentary
Rules of Procedure) and Article 97 paragraphs (1 a and b) of the RDTL
Constitution, namely: paragraph (1) A initiation and determination: (Authority
to initiate laws owned by):
(a) Aos
Deputados; (Parliamentarian);
(b) As
Bancadas Parlamentares; (Factions in Parliament). Furthermore, Article 86 of
the Regimento do Parlemento Nasional 2002 (RDTL National Parliamentary Rules of
Conduct) dated June 18, 2002, namely: A iniciativa de lei compete aos
Deputados, as bancadas parlamentares e ao Governo (initiative of the draft law
can come from Members of Parliament National, from factions in the National
Parliament and the Government).
3.5.2 Content of the Law from
the Government
Based on the Constitutional system is a
pair of state insights based on law. Pursuant to Article 96 paragraph (1) of
the RDTL Constitution of 2002, determines the delegation of authority to the
Government to make laws that regulate matters which constitute further
arrangements of the Constitution, and the establishment of the law requires the
approval of the National Parliament. In addition, the Government has the
authority to form Government regulations that regulate the procedures for
further implementation of the law, as well as the Government's authority to
form Regulations in carrying out government, so that all Timor-Leste
regulations can be grouped into two parts:
1)
A draft law requiring approval from the National
Parliament, called Proposta da Lei (draft law), after being approved by the
National Parliament, the bill becomes law.
2)
Decision-law is a decision with the force of
law, which comes from executive power, which is regulated in the legislative
system in several countries. Decisions can apply to economic, fiscal, social,
territorial and security arrangements, with effective legitimacy of
administrative regulations and the power of the law, since the issuance of
sanctions and publications in official journals or newspapers).
APPLICATION OF THE PROPOSAL
OF LAW DESIGN BASED ON TIMOR-LESTE CONSTITUTION
In essence, the enactment of the law is,
one of the requirements of legislation. In this section of the chapter, the
author describes the applicability of the law proposed by the Government
through legislative licensing laws to the Government, and the adoption of the
proposed draft law by the President of the Republic and the publication in the
gazette (journal da Republika) as follows:
4.1 Applicability of the Proposed
Bill in Article 73 of the RDTL
Constitution, announcement of legislation and decisions; paragraph (1) that
laws and decisions will be issued by sovereignty bodies in the State Gazette.
Subsequently paragraph (2) that, negligence to issue legislation or decision as
referred to in paragraph (1) Article 73 above that, the decisions of state
sovereignty institutions and regional Government, must be published in the
state sheet, if not published then, the law or the decision is canceled or not
valid, and in paragraph (3) that, the form of the announcement of legislation
and other decisions, and the consequences of such negligence, will be
determined by law. In connection with the validity of the law the RDTL country
can be explained as follows:
1) Philosophical
foundation
Philosophically, the authority of state
institutions in the formation of legislation is to support the implementation
of development in the field of constitutional law and is a manifestation of
efforts to achieve the goals of the nation mandated in the constitution. In the
opening and Article 1 paragraph (1) of the 2002 RDTL Constitution, it is
clearly stated that social justice for all Maubere people is the basis of one
of the national philosophies, therefore every citizen has the right to get the
best social justice. As in the Opening of the 2002 RDTL Constitution, and
Article 1 paragraph (1), then in the provisions of Article 6 letter (b) that,
to guarantee and promote the fundamental rights and freedoms of citizens and
the respect for the principles of a democratic State by force of law.
2) Juridical
foundation
Legislation in the State of Timor-Leste,
the material of the law clearly stated in Article 95 paragraph (2) and Article
96 paragraph (1) of the RDTL Constitution of 2002. Material content of the law
that is authorized by the National Parliament is stipulated in paragraph (2)
while Article 96 paragraph (1) of the National Parliament allows the Government
to propose a bill based on predetermined content. Furthermore, concerning the
initiative (initiative) of the law as stipulated in the provisions of Article 97
that; (1) The authority to initiate the law is owned by:
a) Member
of Parliament;
b) Fractions
in Parliament;
c)
Government.
(2) It
is not permissible to submit a draft law, the concept of laws or amendments
relating to, in an ongoing budget year, the addition of State expenditures or
the reduction of State revenues as stipulated in the Budget and State Revenue
or Correction Budget.
(3) The
draft law and the draft law that is rejected cannot be submitted again during
the same legislative session when it has been closed.
(4) The
draft law and draft law which are not responded to, do not need to be
re-submitted during the next trial period, except in the case of the expiration
of the law making period.
(5) The
draft law does not apply again at the time of dismissal of the Government.
Based on the consideration of the National
Parliament for the proposed draft law from members of the National Parliament,
factions in the National Parliament and the Government, depending on the period
of the ongoing legislative process. When a proposed bill is accepted, the draft
law is enacted, and if the National Parliament has held 10 hearings of the
bill, but without making a final decision (rejected), the draft law is no
longer valid. 3) Sociological foundation
The authority of state institutions in the
formation of laws, as one form of legislation departs from the reality that
exists in society. This reality can be in the form of developing aspirations,
existing problems and demands for the interests of changes. 4.2 Ratification and Enactment of the Law
by the President of the Republic of TimorLeste
The enactment of the law is one of the
conditions for a democratic rule of law, therefore, every law of decisions made
or issued by an authorized official or State institution, laws and regulations
can be applied must be published through the State Gazette (Journal da
Republika). According to the provisions of Article 73 of the RDTL Constitution
of 2002 paragraph (1), laws and decisions will be issued by sovereignty bodies
in the State Gazette, paragraph (2) Failure to issue legislation or decisions
as referred to in paragraph (1) at for or general decisions taken by the
sovereignty institutions of the State or regional Government resulting in
cancellation and invalid and paragraph (3), the form of announcements of
legislation and other decisions resulting from such negligence will be
determined by law invite.
5.1 Conclusions
Based on the description of the discussion
of the three problems above, it can be concluded as follows:
1.
The philosophical consideration for the division
of authority of state institutions, in the Constitution of the Democratic
Republic of Timor-Leste, is to avoid the accumulation of authority in one of
the state institutions, which can lead to acts of abuse of power. Considering
the State of the Democratic Republic of Timor-Leste (NRDTL) is a rule of law,
then to obtain, use its authority and limits, it must be clearly regulated so
that it can be accounted for according to the laws and regulations, and in
addition, in order to control each other between state institutions with each
other, to guarantee a system of checks and balances.
2.
Distribution of authority the contents of the
Act between the National Parliament and the Government are:
a) In
the provisions of Article 95 paragraph (1) of the RDTL Constitution, the
National Parliament has the authority and responsibility to make laws
concerning basic issues concerning domestic and foreign policies. The content
of the Law which is the authority of the National Parliament as stipulated in
paragraph (2) Article 95 of the RDTL Constitution, furthermore, the National
Parliament has the authority to submit a bill through the Law initiative as
stipulated in Article 97 paragraph (1) of the RDTL
Constitution
b) Material
content of the Law from the Government;
In the provisions of Article 103 of the 2002 RDTL
Constitution, the Government is the sovereign body responsible for directing
and implementing the general policy of the state as the highest public governance
body. Furthermore, Article 115 paragraph (3) the Government has the exclusive
authority to form regulations that govern the procedures for implementing
government either directly or indirectly. In addition, in the provisions of
Article 96 the National Parliament can allow the government to propose laws on
content matters as set forth in paragraph (1), through statutory initiatives as
stipulated in Article 97 of the 2002 RDTL Constitution.
3. The application of the legislative licensing draft
proposal depends on:
a)
The term of office of the legislature, meaning
when on a trip; The Republican President dissolves the National Parliament, so
the proposed draft law cannot be continued, and or
b)
The term of office of the Government, meaning,
if in the course of government; The President of the Republic dissolved the
Government and dismissed the Prime Minister, so the proposal for the
legislative licensing bill cannot be continued.
c)
When the legislative licensing draft proposed by
the Government is rejected twice in a row by the National Parliament.
5.2 Suggestions
Based on the above conclusions, advice can
be given to those who have a role in the formation of the laws of the State of
Timor-Leste, both directly and indirectly involved in the process of forming the
law, to consider the following:
1) Amendments to the constitution are needed, to clarify
the division of the authority of state institutions based on the principle of
separation of powers or division of powers so that in carrying out its
functions, it can avoid abuse of authority and guarantee the principle of
checks and balances. Unclear division of authority of state institutions in
carrying out their functions, so that the sentence becomes unclear which can
have an impact on abuse of authority, arbitrariness, so that ultimately the
practice of corruption occurs; and overlapping authority that has an impact on
the governance process. 2) It is necessary to establish a law to limit the
legislative licensing of the National Parliament to the Government, so that the
Government in implementing the law is in accordance with its authority, with
the intent:
a)
To clearly regulate the contents of the law that
is given to the executive, so that in the implementation of its functions as an
institution the implementation of the law can be carried out effectively and
efficiently.
b)
It is necessary to establish a law on the
hierarchy of laws and regulations, in order to determine the content of each
level of legislation that is formed, in order to avoid conflicts of norms,
blurring of norms, and void norms.
c)
It is necessary to establish a national
legislative body to draft a bill on content that is the authority of the
National Parliament and the Government, so that there is a clear division of
authority to submit material for the bill between the National Parliament and
the Government can be formed.
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