Material judicial review hearing of the People\\'s Consultative Assembly, House of Representatives, Regional Representatives Council, and Regional Legislative Council (MD3 Law), Thursday (8/3) in Plenary Courtroom of the Constitutional Court Building. Photo by Humas MK/Ganie.
Although the law is not officially signed by President Joko Widodo yet, several parties collectively filed a judicial review of the People\\'s Consultative Assembly, House of Representatives, Regional Representatives Council, and Regional Legislative Council (MD3 Law) to the Constitutional Court (MK). In a hearing held by the Constitutional Court on Thursday (8/3), the Panel of Justices of the Constitutional Court reviewed the preliminary petition for three cases of material review of the law. The petition was filed by the Forum of Legal and Constitutional Studies (FKHK) and individual Petitioners (No. 16/PUU-XVI/2018); the Indonesian Solidarity Party (PSI) (No. 17/PUU-XVI/2018); as well as two individual Petitioners, namely Zico Leonard Djagardo Simanjuntak and Josua Satria Collins (No. 18/PUU-XVI/2018).
The Petitioners challenge Article 73 paragraph (3), Article 73 paragraph (4) letters a and c, Article 122 letter k, and Article 245 paragraph (1) of the MD3 Law. The provision that the Petitioners question is the subpoena of citizens and legal entities based on mass organizations by the House of Representatives. In the petition No. 16/PUU-XVI/2018, the Petitioners argue that the articles are an effort to meet the House of Representatives and the citizens as the holder of sovereignty. This is contradictory to the House’s constitutional design that is presented as an instrument to control the behavior of the authority rather than the behavior of the people.
"The subpoena instrument is given by the people to control the authority if its action or policy harms the interests of the people. [That is] because when choosing representatives in the House through voting booths in the elections, the people never want, and even think about being subpoenaed themselves," said Irman in the session led by Constitutional Justice Aswanto.
Not Conforming to Constitutional Design
Meanwhile, on the provision of the The House of Representatives\\' ethics council (MKD) as stipulated in Article 122 letter k of the MD3 Law, the Petitioners consider it contrary to the constitutional design of the House. The a quo article stipulates that the MKD may take a legal action and/or other steps against individuals, groups of persons, or legal entities that undermine the honor of the House and its members.
"When viewed from the House constitutional design, it becomes contradictory because legal efforts made by the House should be directed to non-individual authorities, groups of people, or community-based legal entities that have a weaker position than members of the House," he explained.
Irman explained that it should be noted that when mass organization-affiliated individual, group of people, or legal institutions criticize the House, the criticism is not an act that can be categorized as undermining the honor of the House. On the contrary, he added, the criticism is addressed to the House in order to maintain its honor because, Irman said, when there is criticism, it means there are things that people think should be corrected in order to maintain the honor of the House.
"It is an anomaly when the people criticize the House, who are their representatives [in the government], and by the House the people are later said to be demeaning [the House] and then are processed legally through the House’s ethics council. It should be noted that acts that are considered demeaning the House and its members is when there is a decision or recommendation of the House it is not obeyed; that is what is categorized as degrading the honor of the House, including its members," Irman said.
On the enforcement of the phrase “langkah hukum” ("legal action") in Article 122 letter k of the MD3 Law, Petitioners No. 18/PUU-XVI/2018 claimed the potential for direct entry of the criminal domain to make criminal law remedium premium in the processing of cases related to the honor of the House and/or its members, that is contrary to the principle of criminal law as ultimum remedium.
"Basically, criminal law emerged as an enforcement mechanism of social order in the community. The enactment of criminal law is the last resort when in society there are individuals who disturb the social order and it can no longer be restored," Zico Leonardo said.
Silence People\\'s Criticism
Similar sentiment was conveyed by the legal counsel for the Indonesian Solidarity Party (PSI), Kamaruddin, who claimed that Article 122 letter k of the MD3 Law has silenced the people’s criticism. "This article has a great potential to [limit] the criticism of the people who are the Petitioner’s constituent. What we mean by the Petitioners is the Indonesian Solidarity Party. And it has the potential to limit the role of the Petitioner\\'s function or the Indonesian Solidarity Party in the performance of the House, and this article is an attempt to silence the voices of the people as an attempt to criminalize, as practiced in the New Order era," he read the petition No. 17/PUU-XVI/2018.
In relation to the immunity right of House members as stipulated in Article 245 paragraph (1) of the MD3 Law, PSI argues that such provision could threaten fair legal certainty and equal treatment before the law for every citizen. "Whereas Article 245 paragraph (1) of MD3 Law grants immunity right to members of the House of Representatives against all allegations of criminal acts committed by members of the House and it is not related to the implementation of duties as House members. This is clearly a discriminatory treatment and injures the sense of justice," Kamaruddin explained.
Law Not Numbered Yet
Responding to the three petitions, Constitutional Justice I Dewa Gede Palguna as the Chairperson of the Panel of Justices emphasized that the MD3 Law had not been passed into law so it does not have a number yet. He is concerned that the Petitioners\\' petition will be hindered related to the number of the law. For that, he asked the Petitioners to include the number of the MD3 Law after it is passed into law.
"This law has no number yet? This is the problem. Because, if there is no number, the object can be incorrect. Therefore, of course we suggest that the number is included later when it is available," he advised.
Furthermore, in relation to the case No. 17/PUU-XVI/2018, Justice Palguna suggested that the PSI improve its legal standing as a political party. "The elaboration on legal standing, you are a political party, but have no representation in the House, so have not participated in making this law, so prima facie, [you] can file this petition. However, the problem is that there must be clarity in the elaboration of your legal standing because it is the way for this petition to be acceptable," he explained.
Similar suggestion for improving the legal standing was also addressed by Justice Palguna for case No. 18/PUU-XVI/2018. He requested that the Petitioners clarify their legal standing and constitutional impairment by the enactment of the articles being reviewed.
Meanwhile, Constitutional Justice Saldi Isra requested that the Petitioners revise the petitum of the petitions especially for case No. 17/PUU-XVI/2018. "Then, Petitum 2 and 3 should be merged. Thus, state [the provisions] contrary to the 1945 Constitution of the State of the Republic of Indonesia and having no binding legal force," he explained.
The panel of justices also gave the Petitioners time to revise the petition for 14 working days. The next hearing will be held with the agenda to examine the petition revision. (ARS/LA/Yuniar Widiastuti)
Friday, March 09, 2018 | 16:36 WIB 79