Analisis Penghapusan Syarat Tidak Bertentangan dengan Peraturan Perundang-Undangan Dalam Penggunaan Diskresi Pada Omnibus Law Cipta Kerja

Abstract

The new regulation on discretion, abolishing the requirement of "not contradicting the laws and regulations" in Article 175 paragraph (2) of the Job Creation Law raises pros and cons because Indonesia is a legal state and at the same time a welfare state which requires responsive action to achieve this. The purpose of this study is to describe and analyze the new regulation of discretion and its implications. The method used is normative juridical. The results of the study show that first, the new discretionary arrangement opens the expansion of the use of discretion so that it is contrary to the concept of the rule of law. Second, the new discretionary rule implies the formation of a State Administrative Decree which eliminates the principle of certainty and the principle of not abusing authority, but on the other hand, this regulation is intended to support responsive problem solving, especially in emergency conditions such as the Covid-19 pandemic. Local governments with the concept of fiscal decentralization are part of the concept of regional autonomy, through discretion, are believed to be more effective and efficient.