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Law lecturer of Universitas Pancasila Mochamad Isnaeni Ramdhan as Applicant’s Expert after delivers his testimony at judicial review session on Act of Legislation Establishment, on Wednesday (12/8), at Plenary Room, the Constitutional Court Building. Photo PR/Ifa

 

 

 

The Constitutional Court holds further judicial review session on Act Number 12 Year 2011 of Legislation Establishment (Undang-Undang Pembentukan Peraturan Perundang-undangan –UU P3) under agenda hearing Applicant’s Expert testimony. The session reviews Applicant’s petition which registered in Case Number 59/PUU-XIII/2015. It is held on Wednesday (12/8), at Plenary Room, the Constitutional Court Building.

The Applicant presents law lecturer of Universitas Pancasila Mochamad Isnaeni Ramdhan as Applicant’s Expert.  

Delivering his testimony, Ramdhan says an Act is a unified system which always associated with the scheme of the legislation. Ramdhan then links his argument with Applicant’s petition. According to him, the elucidation of Article 7 (1) letter b Act of Legislation Establishment is an official elucidation, although it is not binding. It is then cause limitation on People’s Consultative Assembly Decree (Ketetapan Majelis Permusyawaratan Rakyat –TAP MPR), in which the valid decree is only the decree stipulated in MPR Decree Number 1 Year 2003. It closes the enactment of MPR Decree Number 18 Year 1998 of removal on MPR Decree Number 2 Year 1978 of Eka Prasetya Pancakarsa which contained the stipulation of Pancasila as State’s fundament.  

“As we know, the elucidation of Article 7 (1) letter b Act of Legislation Establishment is an official elucidation, although not binding. Thus, in the elucidation of Article 7 which limits MPR Decree prevailed –only those determined on MPR Decree Number 1 Year 2003, it closes the enactment of MPR Decree Number 18 Year 1998 which removes MPR Decree Number 2 Year 1978 of Eka Prasetya Pancakarsa and the determination of Pancasila as State’s fundament,” explained Ramdhan in front of Justice Panel led by Deputy Chief Anwar Usman.

According to Ramdhan, Applicant’s petition concerns on Pancasila implementation in the legislation. He argues the petition is a form of concern over inconsistent legislation as legal product in systemic paradigm.

“Moreover, it needs to be understood that Applicant’s legal standing regarding the intention to implement the Pancasila in the legislation to the lowest level. It needs to be appreciated as a form of concern over inconsistent legislation as legal product in systemic paradigm,” explained Ramdhan.

Responding Expert’s testimony, Constitutional Justice I Dewa Gede Palguna asks expert’s view regarding philosophical review on the position of 1945 Constitution Preamble with articles within the Constitution and the relation between Acts with the Constitution. Moreover, Palguna also asks expert’s view regarding the function of elucidation in an Act.

“You say the elucidation is not binding, right? Why the elucidation needed if it is not binding? Why it is needed and why it becomes problem if for example it is removed? After all, it is not a binding part from norm provision. Justice Panel is willing to get explanation from your expertise perspective,” said Palguna.

Answering the question, Ramdhan says the 1945 Constitution Preamble is philosophically a guide in forming articles within the 1945 Constitution. Ramdhan further revises his previous statements. According to him, elucidation is not considered as norm, instead of not binding. Elucidation is an official explanation of a regulation and a guide to follow up the regulation.  

“Although elucidation is neither binding nor considered as Act norm, it is still an official explanation. Thus, legislator considers elucidation is a guide to follow up the regulation,” explains Ramdhan.

Last Session

Moreover, Deputy Chief Anwar Usman as session head delivers that the Court assesses the session for this petition is enough. He then asks the Applicant to deliver conclusion. “According to the Court, the session for this petition is enough. Later, the Applicant is only need to deliver conclusion. If there is any additional explanation, The Applicant could insert it in the conclusion. The conclusion shall be submitted not later than Friday August 21, 2015, 14.00 WIB. Please deliver this information to the other Applicant,” said Anwar.

The petition is filed by Yudi Latief, Adhie M Massardi, et al. as Indonesian citizens who have democracy program. The purpose of the program is the Pancasila determined as State’s Fundament. The Applicant is harmed by the elucidation of Article 7 (1) letter b Act of Legislation Establishment which considered erasing formal provisions of Pancasila as State’s Fundament. The elucidation of Article 7 (1) Act of Legislation Establishment states: 

 “MPR Decree are provisional and prevailing MPR Decree as referred in Article 2 and Article 4 MPR Decree Number: I/MPR/2003 of Matter and Legal Status Review on provisional decree and prevailing decree Year 1960 until Year 2002, dated August 7, 2003,” (“Ketetapan Majelis Permusyawaratan Rakyat adalah Ketetapan Majelis Permusyawaratan Rakyat Sementara dan Ketetapan Majelis Permusyawaratan Rakyat yang masih berlaku sebagaimana dimaksud dalam Pasal 2 dan Pasal 4 Ketetapan Majelis Permusyawaratan Rakyat Republik Indonesia Nomor: I/MPR/2003 tentang Peninjauan Terhadap Materi dan Status Hukum Ketetapan Majelis Permusyawaratan Rakyat Sementara dan Ketetapan Majelis Permusyawaratan Rakyat Tahun 1960 sampai dengan Tahun 2002, tanggal 7 Agustus 2003.”)

 

According to the Applicant, the deletion could be occurred because MPR Decree Number 1 Year 2003, particularly on Article 6 number 91, had placed the decree Number 18 Year 1998 as a decree which no need further legal action, either it was final (Einmalig), removed, or completed to be done. In fact, the determination of Pancasila as State’s Fundament is stated on Article 1 MPR Decree Number 18 Year 1998. The Applicant assesses formal provision which determined the Pancasila as State’s Fundament has lost due to the elucidation of Article 7 (1) letter b Act of Legislation Establishment. (Triya IR/Prasetyo Adi N)

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