Legal Uncertainty in Testing of Legislation Due to Weak Implementation of the Principle of Lex Superior Derogat Legi InferIORI

Abstract

The principle of lex superior derogat legi inferiori is a fundamental principle in the hierarchical system of Indonesian laws and regulations, which emphasizes that lower norms must not contradict higher norms. However, in practice, this principle is often ignored in the process of drafting, harmonizing, and testing regulations, both by the legislative and judicial institutions. This study aims to analyze the forms of weak implementation of the principle of lex superior derogat legi inferiori, identify the causal factors, and assess its implications for legal certainty. The study uses a normative juridical method with a statutory, conceptual, and case approach through an analysis of decisions of the Constitutional Court and the Supreme Court. The results show that the weak implementation of this principle is caused by regulatory disharmony, low legislative quality, overlapping authority, passive norm oversight mechanisms, and low compliance by administrative officials with the regulatory hierarchy. The resulting implications include norm conflicts, legal uncertainty in policy implementation, decreased regulatory legitimacy, increased burden of judicial review, and hampered business certainty. This research emphasizes the importance of strengthening regulatory harmonization mechanisms and improving the quality of legislation to ensure legal certainty and a more orderly regulatory system.