Lex Speciali Derogat Legi Generali is a law principle meaning that the special regulations will override the general rule. This principle was made so that the special case will be regulated by the certain or specialized law too. The principle of Lex Speciali Derogat Legi Generali used because some cases need to have their own law because sometimes the general law can’t always regulate the specific cases.
The other reason in using this principle is to avoiding the clash between the laws, for example by using this principle we may analyze when there’s clash between constitutional (UUD) and law (UU) because there are possibly some points of those laws that doesn’t match each other. There are two legal entities in this state that can do such judicial review (uji materiil) to our laws. The first entity is the Supreme Court. Supreme Court is the entity that can do judicial review to the regulation below law, for example Supreme Court can review regional regulation.
Then the second entity that can do judicial review toward the law also is Constitutional Court. Constitutional Court can do judicial review when there’s a clash between the law and the constitution. In practicing this principle there are some conditionals to be concerned; another law consist in the general law are still exist, and the provision of lex specialis must be suitable with lex generalis. Law in Indonesia use this principle in dealing with cases. For example article 18 of 1945 Constitution mentions that governor, deputy, and major have to be elected democratically.
On the other hand there’s Law no. 13 of 2012 regarding Distinction of Daerah Istimewa Yogyakarta which regulates that the governor of DIY will be elected based on lineage. Law no. 13 of 2012 regarding Distinction of Daerah Istimewa Yogyakarta is theoretically is the opposite of what stated in article 18 of 1945 Constitution. But using the principle of Lex Speciali Derogat Legi Generali, the law regarding the distinction of DIY, is not violating the 1945 Constitution because the 1945 Constitution is the Lex Generali, while Law no. 3 of 2012 regarding Distinction of Daerah Istimewa Yogyakarta is the Legi Speciali. Law no. 13 of 2012 is needed because there is a special case regarding the history of leadership in Yogyakarta which the governor and the vice governor culturally chosen based on the lineage not the election just like other province. Therefore article 18 of 1945 Constitution is too general and can’t regulate the distinction of DIY so that the law was made. Another example of this principle is when there’s a corruption case regarding the driving license simulator.
There was a dispute in order to handle the case and the dispute was between two entities, KPK and Polri. In solving the dispute, the principle of Lex Speciali Derogat Legi Generali was used. KPK is regulated by Law no. 30 of 2002 but Polri just obeys the KUHAP and KUHP. In this case, Law no. 30 of 2002 is Lex speciali and KUHAP and KUHP is Lex generali. So the Lex Speciali should put aside the Lex Generali. The principle of Lex Speciali Derogat Legi Generali is really needed when there’s two or more law that are not suitable to each other. This principle will lead to the law that should be used to solve certain cases.