SETTLEMENT OF REGION DISPUTES THROUGH THE CONSTITUTIONAL

Zuhdi Arman1 Universitas Putera Batam, Batam, [email protected]

ABSTRACT Regional boundaries have an important meaning as the limits of regional government authority in carrying out regional government functions. Implies the emergence of conflicts between regions regarding the assertion of territorial boundaries because it is related to upholding the existence and sovereignty of each local government. In this research, the purpose of writing is not only to describe the conflict resolution process through the administrative process, but also relates to the settlement process through a review of the 1945 Constitution of the Republic of Indonesia by the Constitutional Court. The method used in this research is normative juridical. Through this research the writer can find research that is contrary to legal principles. Whereas Regulation of the Minister of Home Affairs Number 76 of 2012 is the correct regulation that is able to resolve conflicts in border areas. The administrative process regulated in Law Number 23 Year 2014 has not been able to resolve the problem of border area conflict even though the decision is a final decision but also has legal remedies as a review in court.

Keywords: Settlement, Regional, Constitutional, Court.

1. Introduction Democracy’s reformation era was of the 1945 Constitution amendments such an abstract and universal concept. (also known as the 1945 Constitution of Those kinds of democracy has been the Republic of Indonesia) which states applied in many countries in various that sovereignty is in the hands of the forms, which results in various titles, people and carried out according based such as constitutional democracy, on the constitution (Franciscus, Xaverius peoples democracy, guided democracy, W., Yustisia Jurnal Hukum: Volume 8 liberal democracy, and so on. One of Number 1, 2019: 109). democracy’s system which has been The Unitary State of the Republic practiced in Indonesia is constitutional of Indonesia is divided into a number of democracy. It’s adjusted regulations are provincial areas and the province is explicitly stated in article 1 paragraph 2 divided into districts and cities, each of

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which has a regional government, which the people in the system of the Unitary is regulated by law. One of the State of the Republic of Indonesia. constitutional aspects of the Based on this formulation, in the administration of the state and autonomous region there are elements, government since Indonesia's namely: a) elements of the territorial independence is the issue relating to boundary. It can be stated that an area the implementation of autonomy as a must have an area with clear unitary state subsystem. The idea of boundaries so that it can be autonomy as an alternative to the distinguished between one region and choice of federal state form has been another. b) elements of government. laid since the days of the independence The existence of government in the movement. At the time of drafting the regions is based on the legitimacy of the 1945 Constitution of the Republic of Law which gives authority to the Indonesia, autonomy was included as regional government, to carry out one of the subjects discussed and then governmental affairs that have the contained in the 1945 Constitution of authority to regulate based on their the Republic of Indonesia (Bagir Manan, own creativity. c) elements of society. 2004: 21-22). Government has a role in Society as an element of regional promoting good governance (Citra, government is a legal community unit, 2015: 514). both gemeeinschaft and gesselchaft, After the wave of reforms in clearly having traditions, customs, and Indonesia, one of the issues that customs that have colored the local surfaced was the improvement of government system, starting from the central and regional relations. The birth form of thinking, acting and certain of Law Number 22 of 1999 concerning habits (Sunamo, 2015: 15). Regional Government has presented a Since the era of regional new paradigm in the administration of autonomy, regional boundaries have regional government in Indonesia. With important significance as management a broad and complete basis of authority boundaries for each region so autonomy, the implementation of that the uncertainty and disagreement regional government becomes more in the area's boundaries has caused meaningful, because there is freedom many disputes regarding these for the region to regulate and manage boundaries related to the development its own household affairs, according to of politics, economy, culture of the the conditions and potential of each world community and local region (Mexsasai Indra, 2013: 1). communities in interpreting regional The autonomous region itself boundaries. In the Republic of Indonesia contains the understanding of a legal Law, it has actually been regulated society unit that has territorial regarding the mechanism for resolving boundaries, which is authorized to regional border crossings, namely regulate and manage government Permendagri Number 76 of 2012 which affairs and the interests of the local replaces the previous Permendagri community according to their own namely Number 1 of 2006 concerning initiative, based on the aspirations of Guidelines for Boundary Affirmation

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which focuses on the resolution of non- with scholars' views on law that has litigation disputes. high qualifications (doctrine) and However, the Constitutional Court comparative law. Because this research has a gap in the resolution of regional is a normative study, statutes and border disputes which is the entry point conceptual approaches are applied. The in the settlement of border disputes statute approach is applied by between regions, namely through the examining laws and other related Testing of the 1945 Constitution of the matters legal regulations concerning the Republic of Indonesia towards the legal issues in question. This is an formation of regions due to the formal approach using the law and the rules. In legal form of the formation of an addition, a conceptual approach is autonomous region based on in the applied using perspective and the provisions of laws and regulations, one concept of several experts to analyze of the contents is the boundary of an the data collected, together with the established autonomous region. doctrines that grow in the legal However, the tendency to resolve discipline as the basis of this research to regional border disputes through the build on legal arguments to solve the examination of the Law on the 1945 legal problems under study (Marzuki, Constitution is indeed interesting to 2009: 93). discuss, by making an effort to examine the formation of a region against the 4. Result and Discussion (Calibri 14 1945 Constitution, it has changed the bold) flow of disputes that were initially 1. Authority of the Constitutional Court in between one region and the region Resolving Regional Border Disputes others become interregional areas with The Constitutional Court is a new State Institutions. institution in the branch of judicial power that explains the judicial function. This is in accordance with the 2. PROBLEM STATEMENT provisions of Article 24 paragraph (2) of Based on the results of the the 1945 (Mexsasai, 2013: 149) preliminary explanation above, the Constitution of the Republic of author specifically focused on how to Indonesia: Judicial power is exercised by complete regional border disputes a Supreme Court and a judicial body through the constitutional court? that is under it in the general court, religious court, military court, state 3. Research Method administration court environment , and A study of normative law was used, a Constitutional Court. If related to bearing in mind the exclusive character conflicts over territorial borders, the of this study itself which method is authority of the Constitutional Court normative. This method is useful for rests with the authority to review the analyzing the correlation rule of law, Laws on the 1945 Constitution of the justice and contracts. However, Republic of Indonesia. With regard to doctrinal learning is used to analyze the authority to examine the Laws on legal principles, legal literature, along the 1945 Constitution of the Republic of

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Indonesia in Article 24C paragraph (1 ) interpretations of the law, even though The 1945 Constitution of the Republic there are new government regulations. of Indonesia, Article 1 number 3 letter a Thus this step can be used as a juncto Article 10 paragraph (1) letter a barometer for local government and the juncto section eight of Law Number 24 people of Indonesia regarding legal Year 2003 concerning the Constitutional awareness and rule of law, which is in Court with the authority to decide on accordance with the choice of the the petition of the applicant regarding Indonesian people that Indonesia is a losses from individual Indonesian state of law. citizens, customary law community unit, The emergence of the issue of public or private legal entity, and state constitutionality, then that is where the institution. judiciary appears to treat the law as Law Number 24 of 2003 to examine something that must be studied again the constitutionality of the Act, the theoretically carefully on the basis of Constitutional Court through its the constitutional basis, never on the decision can declare that the material basis of eligibility. If the judiciary formulation of an Act has no legal force concludes that the relevant Act because it is contrary to the Basic Law. contradicts the constitution, then the Likewise with a law, the Constitutional judiciary can overturn the Act (Leonard, Court can cancel its validity because it is 2005: 87). not in accordance with and is not based In the theory of toesting, a on the 1945 Constitution of the distinction is made between material Republic of Indonesia. The law is toesting and formele toesting. The produced by the House of difference is usually associated with the Representatives together with the difference between wet in materialile President in the administration of the zin (Law in the material sense) and wet state based on the law governing the in formele zin (Law in the formal sense). life of the state community. Thus the Both forms of testing by Law Number Law produced by the legislature (the 24 of 2003 concerning the House of Representatives with the Constitutional Court are distinguished President) is balanced by the existence by the term "Formation of Law" and of a test (formal and material) of the "Content of Law" (Leonard, 2005: 16). judicial branch of the Constitutional Whereas as stated in Article 51 Court (Nurbadri, 2008: 161-162). paragraph (1) of the Constitutional The settlement through the Court Law that "The Petitioner is a party Constitutional Court, according to the that considers his constitutional rights author, is a step that provides legal and / or obligations impaired by the certainty compared to a settlement coming into effect of the Law, namely: based on Permendagri No. 76/2012 1) Indonesian citizenship concerning affirmation of regional 2) Customary law community unit as boundaries which tends to settle by long as it is still alive and in means of non-litigation which only leads accordance with the development of to lengthy, seemingly endless debates society and the principles of the which in turn makes Different

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Unitary State of the Republic of in the case of a regional border dispute Indonesia governed by Law that is resolved through a judicial 3) Public or private legal entities review in the Constitutional Court is a 4) State institutions public legal entity or regional head or who has constitutional authority over In the constitutional court ruling in the public legal entity so that it can be case decisions No. 06 / PUU-III / 2005 represented, as stated in the law. Law and 010 / PUU-III/ 2005 formulate more Number 23 of 2014 concerning Regional stringent legal standing requirements Government in Article 65 paragraph (1) based on the applicant's constitutional letter e that the regional head has the rights, namely: authority that is, represents his Region 1) the applicant's constitutional rights inside and outside the court, and can granted by the 1945 Constitution of appoint a legal representative to the Republic of Indonesia represent him in accordance with 2) that the applicant's constitutional statutory provisions. So based on the rights are deemed by the applicant legislation above, the regional head has to have been impaired by the Act the authority to represent the region in being tested dispute resolution in court. 3) that the intended loss is specific With regard to the constitutionality (special) and actual or at least of the judicial review of the Law on the potential according to reasonable 1945 Constitution of the Republic of and ascertained reasoning Indonesia must see the applicant's legal 4) a causal relationship (causal verband) standing, constitutional impairment of between the loss and the enactment the applicant and the contents of the of the Act to be tested Law which contradicts the 1945 5) the possibility that the petition Constitution of the Republic of granted, then the constitutional Indonesia. there are at least five impairment postulated will or no constitutional requirements for longer occurs. fulfillment namely. First, the applicant's Not everyone can be an applicant constitutional rights granted by the to the Constitutional Court and be an 1945 Constitution of the Republic of applicant. The existence of only legal Indonesia. Second, that the applicant's interests as known in civil procedural constitutional rights are considered by law and state administrative procedural the applicant to have been impaired by law cannot be the basis. In civil law, it is a law being tested. Third, that the known as adagium pint daction, ie if applicant's constitutional impairment there is a legal interest, you can file a must be specific and actual in nature, or lawsuit. Which if there is a legal interest at least potential in nature which may file a lawsuit. What is meant by according to logical reasoning and can standing or persona standi in judicio is certainly be ensured. Fourth, there is a the right or legal position to file a causal relationship (clausal verband) lawsuit or petition in court (standing to between the loss and the enactment of sue). the law petitioned for trial. Fifth, there In the above explanation it is clear is a possibility that with the granting of that the legal standing of the applicant

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the petition the postulated hands of the central government constitutional impairment will not or no through the Ministry of Home Affairs longer occur and the Governor's position is only as a (http://www.hukumonline.com/berita/ solution to disputes between baca/hol12943/kerugian-konstitusional- autonomous regions (Mexsasai, 2013: warga-negara harus-penuhi-lima-syarat, 200). accesed on 18 September 2019). The legal basis for resolving disputes Based on this, the petition for the in the administration of government examination of the Law on the affairs and also including regional formation of the region can be tested border disputes is in Article 370 of Law for its constitutionality against the 1945 Number 23 of 2014 concerning Regional Constitution of the Republic of Government namely: Indonesia and the applicant must have 1) In the event of a dispute in the a clear legal standing whose administration of inter-regional / constitutional rights have been regency / municipal governmental impaired by the presence of the Act and affairs in one provincial Region, the can be proven before the court. governor as the representative of the Central Government resolves the dispute in question. 2) In the event of a dispute in the 2. Settlement of Regional Border administration of inter-Provincial Disputes through Administrative Government Affairs, between the Efforts Provincial Region and the Regency / Whereas in the 1945 Constitution of City Region in its territory, and the Republic of Indonesia, it is stated between the Provincial Region and that if the territory of the country is the Regency / City Region outside its further divided into provinces and territory, the Minister shall settle the regencies / cities, the form and dispute in question. structure of government shall be based 3) In the event that the governor as a on the Law. The mandate of this representative of the Central constitution is the legal basis for the Government cannot resolve the formation of regional government with dispute as meant in paragraph (1), all its functions and authorities, the handling shall be carried out by including in the matter of regulating and the Minister. managing the household of the region. 4) The Ministerial Decree relating to the Completion of administrative efforts settlement of disputes as referred to is a settlement carried out within the in paragraph (2) and the handling of government itself. In the event of a dispute resolution as referred to in border dispute over an autonomous paragraph (3) is final. region within a province, the Governor 5) Further provisions regarding the shall resolve it. But in practice the procedure for resolving disputes Governor does not have the authority between Regions in the to determine the status of the disputed administration of Government Affairs region because the authority is in the

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shall be regulated by Ministerial Home Affairs Regulation No. 76/2012, Regulation. steps for resolving border disputes More specifically the resolution of between regions with the stages of the regional border disputes is regulated in Governor facilitating the resolution of the provisions of Regulation of the border disputes by inviting Bupati / Minister of Home Affairs Number 76 of Mayor meetings where disputed areas 2012 Concerning Guidelines for are held, the Governor is given the Confirmation of Regional Bounds Article opportunity to hold meetings three 25 namely: times. with the Regent / Mayor. After 1) In the event of a dispute in the the meeting limit is held three times, affirmation of a regional boundary, a then based on the provisions of Article regional boundary dispute is 28 paragraph (2) Regulation of the resolved. Minister of the Interior Number 76 of 2) Settlement of regional boundary 2012 the Governor decides on the disputes between regencies / cities dispute over the regional boundaries, in one province is carried out by the and if the Governor does not take the governor. decision, The Governor hands over the 3) Settlement of regional boundary next process to the Minister of Home disputes between provinces, Affairs (Mexsasai, 2013: 264). between provinces and regencies / In this case the Minister of Home cities in their territories, and Affairs issued a formal decision in the between provinces and regencies / form of a Minister of Domestic Affairs cities outside their territories, shall Regulation (Permendagri) concerning be carried out by the Minister of the affirmation of regional boundaries Home Affairs. that are final and binding and no legal With the two regulations above, remedies can be made against the Article 370 of Law Number 23 of 2014 Minister of Domestic Affairs Regulation. concerning Regional Government in However, even though it has been conjunction with Article 25 of the confirmed that it is final it does not rule Minister of Home Affairs Regulation out the possibility of being resolved Number 76 of 2012 Concerning through litigation by the Supreme Court Guidelines for Regional Boundaries, and the Constitutional Court by Judicial which is used as a reference for Review because the Minister of Home resolving border disputes between Affairs Regulation is not a decision of regions in Indonesia. In accordance with the Judiciary so that the final nature is the mandate of Article 25 of the only in the Administrative process and it Minister of Home Affairs Regulation is possible to take legal action the other Number 76 of 2012, it is clear that the is for those who feel disadvantaged by resolution of disputes in the affirmation the decision. of boundaries between regencies / The emergence of loopholes to settle cities is carried out in stages starting regional boundary disputes to the first from the level of the Government Constitutional Court through the below, namely the Governor. Pursuant examination of the Law Against the to Articles 26 to 32 of the Minister of 1945 Constitution of the Republic of

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Indonesia, this is because the formal problem, so according to the authors, legal form of the formation of an resolving regional border disputes autonomous region is based on the through litigation can be used as the provisions of the Law which contains main option to obtain legal certainty. the wrong contents. autonomous area The research results and the boundaries that are related to regional comprehensive discussion are deeply boundaries with adjoining regions and and clearly presented. Results can be their normalization is too general. Even presented in figures, graphs, tables and though the potential for disputes can others that make the reader understand occur at the village level. However, in easily. The discussion must be clearly some recent laws concerning the and deeply conducted. The discussion formation of autonomous regions, more can be made in several sub-chapters. detailed regulations on regional boundaries up to the village level have 5. Conclusion been made, such as the Law of the 1. Conclusion Republic of Indonesia Number 21 of Border disputes between regions are 2012 concerning the formation of issues that can be examined by the Pangandaran Regency in West Java constitutionality of the Constitutional Province, Law of the Republic of Court. In resolving regional border Indonesia Number 22 of 2012 regarding disputes, the state has actually the formation of the west coast district prepared a set of legal rules such as in Lampung province, Law of the Regulation of the Minister of Home Republic of Indonesia Number 23 of Affairs Number 76 of 2012 concerning 2012 concerning the Formation of Guidelines for Confirmation of Regional South Regency in the Boundaries and Law Number 23 of 2014 province of , Law of the concerning Regional Governments to Republic of Indonesia Number 24 of resolve regional boundaries of disputes 2012 concerning the Formation of the through Administrative Settlements by Regency in the Governors and Ministers Domestic is Province of West Papua (Mexsasai, final, but in practice Permendagri as a 2013: 273). result of dispute resolution through Based on the description above, administrative efforts does not solve according to the author, although the the problem even though it is final, regency dispute resolution mechanism even those who feel disadvantaged over has been regulated through the the issuance of the decision can review provisions of Article 25 of the Minister it to the Supreme Court of the Ministry of Home Affairs Regulation Number 76 of Home Affairs and can even test the of 2012, challenged the Juncto Regional Law on the Formation of the area to the Boundary Guideline Article 370 of Law Court The Constitution as the basis for Number 23 of 2014 concerning Regional the constitutional impairment of the Governments, which resolves border applicant. dispute mechanisms through The 2. Suggestion administrative approach has not been Considering the importance of the able to resolve the border dispute territorial boundaries of an area as a

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symbol of authority over the area, it is Financial Statements necessary to establish legal rules Disclosures Across ASEAN governing the mechanism for resolving Countries, Procedia Social and disputes over regional borders that Behavioral Sciences have more legal certainty. Considering Sources of Scientific Work: that the issue of regional boundaries is Mexsasai Indra, 2013, Konsep a constitutional issue, it is deemed Penyelesaian Sengketa necessary to have a legal reform Perbatasan Antar Daerah involving the Constitutional Court as a Dikaitkan Dengan Pemekaran court that is capable of providing legal Daerah Di Indonesia, Disertasi, certainty in the resolution of regional Program Doktoral Ilmu Hukum, border disputes. Fakultas Hukum Universitas Padjajaran: Bandung. References Nurbadri, 2008, Konflik Batas Wilayah Books: Diera Otonomi Daerah dan Bagir Manan, 2004, Menyongsong Fajar Upaya Penyelesaiannya Studi Otonomi Daerah, Pusat Studi Kasus Konflik Batas Wilayah Hukum Fakultas Hukum UII: Antara Kabupaten Tebo Yogyakarta. Dengan Kabupaten Bungo, Leonard W. Levy, 2005, Judicial Review, Thesis, Fakultas Hukum Nuansamedia: Bandung Universitas Diponegoro: Marzuki, Peter Mahmud, 2009, Semarang. Penelitian Hukum (Legal Websites: Research), Kencana Prenada http://www.hukumonline.com/berita/b Media Group: Jakarta. aca/hol12943/kerugian- Mexsasai Indra, 2011, Dinamika Hukum konstitusional-warga-negara Tata Negara Indonesia, Refika Aditama: harus-penuhi-lima-syarat, Bandung. accesed on 18 September Sunamo H, Siswanto, 2012, Hukum 2019. Pemerintahan Daerah di Indonesia, Sinar Grafika: Jakarta. Journals: Franciscus, Xaverius W, 2019, The Consept And Its Implementation Of Indonesian Legislative Elections Based On The Pancasila Democracy Perspective, Yustisia Jurnal Hukum: Volume 8 Number 1. Citra, Sukmadilaga, 2015, Good Governance Implementation In Public Sector: Exploratory Analysis of Government

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