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Petitioners’ attorney Irmanputra Sidin conveying the petition in the institutional dispute case between DPD 2014–2019 Period and DPD April 2017–September 2019 Period, on Monday (21/1) in the Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.

Gusti Kanjeng Ratu Hemas and Farouk Muhammad, Deputy Speakers of the Regional Representatives Council (DPD) 2014–2019 Period, as well as Nurmawati Dewi Bantilan, DPD member of 2014–2019 Period filed a petition on institutional dispute (SKLN) to the Constitutional Court. In the case No. 1/SKLN-XVII/2019, the Respondents are Oesman Sapta (DPD Speaker of April 2017–September 2019 Period), Nono Sampono (DPD Deputy Speaker I of April 2017–September 2019 Period), and Darmayanti Lubis (DPD Deputy Speaker II of April 2017–September 2019 Period). The preliminary hearing of the institutional dispute was presided over by Deputy Chief Justice Aswanto, accompanied by Constitutional Justices Arief Hidayat dan Saldi Isra. It took place on Monday (21/1) in the Plenary Courtroom of the Constitutional Court.

Attorney Irmanputra Sidin said that the Respondents had harmed the constitutional authority of the Petitioners granted by Article 22C paragraph (3); Article 22D paragraphs (1), (2), and (3); Article 23 paragraph (2); Article 23E paragraph (2); and Article 23F paragraph (1) of the 1945 Constitution being implemented since April 4, 2017. Irman added that DPD RI was a state institution consisting of members who had been elected from each province through general elections. Through the electoral process, elected DPD members from each province elected the chairman following their terms of office as stipulated in the Regulation of Regional Representatives Council of the Republic of Indonesia Number 1 of 2014, reinforced by the Supreme Court Decision Number 20P/HUM/2017. Other instruments were formed to support the leadership in running the institution for five years.

"Meanwhile, the Respondents are the DPD with new leaders with a 2.5-year term, from April 2017 to September 2019, and [they were appointed] on April 4, 2017 as leaders after the issuance of the Decree of the Supreme Court Decision Number 20P/HUM/2017. This is a simple indicator of illegitimate takeover of authority," said Irman. 

Furthermore, Irman explained that this takeover was related to the inseparability between the leadership and the institution; as long as the leadership had not been legally established, the Indonesian DPD was not able to carry out its constitutional authority. As the leader of a pluralistic institution, the absolute element that must be fulfilled is a legitimate leader. This is because the leader is the only instrument that can lead DPD meetings and conclude the results of the session for decision-making, and submit a performance report in the DPD plenary session in accordance with Article 261 of the MD3 Law. As a result of the appointment of the Respondents, two cloned state institutions exist, resulting in a dispute between the Respondents and the Petitioners on the exercise of authority.

"Therefore, the legality of the leadership of a state parliament is mutatis mutandis with the legality of the institution itself. As a result, takeover of authority from one state institution will lead to dualism and of course be detrimental to the constitutional authority of the legitimate state institution, namely DPD of the Republic of Indonesia 2014-2019 Period, or the Petitioners," explained Irman. 

In addition, Irman explained that if later other leaders besides the legitimate leaders emerge, the institution will automatically be cloned. Each leader can claim their membership to carry out the authority of the institution, which can determine the legitimate political ranks between the two leadership camps. Leaders who have succeeded in having themselves legitimized will carry out the constitutional authority of DPD RI even though the position was obtained illegally. 

Based on the arguments in the petitum, the Petitioners requested that the Court declare the Petitioners legitimate leaders of DPD RI for the 2014-2019 period. In addition, the Petitioners requested that the Court restore the rights of the Petitioners as speaker and members as well as their status and dignity. "To declare the Respondents not having constitutional authority to exercise the authority of DPD RI and to declare the Respondents\' positions as leaders of DPD RI for April 2017-September 2019 period null and void," said Irman. 

Legitimacy of Leadership

Responding to the petition, Deputy Chief Justice of the Constitutional Court Aswanto observed that the petition submitted focused more on the legitimacy of the leadership of DPD RI. Therefore, the Petitioners need to build a convincing argument that this is not a personal issue, but of institutional authority. "So it is not only questioning [who] the legitimate leaders [are]. Is the Petitioners or the Respondents? So, emphasize that this is [about] the authority of the state institution," he advised. 

Constitutional Justice Saldi Isra observed that in this institutional authority dispute, it was necessary for the Petitioners to emphasize that they acted on behalf of the state institution. That is because the petition also states that the Respondents also represented themselves as the state institution. 

"Therefore, there needs to be an additional argument, when does a leader represent himself as his institution\'s representative? Can you act alone or is there a mechanism that must be passed or fulfilled? This is important to make clear that the Petitioners truly act on behalf of the institution and the argument must be strengthened," Justice Saldi explained. 

Internal Institutional Dispute 

Meanwhile Constitutional Justice Arief Hidayat saw the petition as having a new theoretical nuance. PMK stipulates that there are restrictions on institutional disputes, but in this case the Petitioners presented new theories by expanding the meaning of the institutional dispute in question. "So it does not reflect Article 1 number 7 of PMK. How to build a narrative from this argumant that can then eliminate that limit so that the expansion can be accepted as something that needs to be considered," he explained. 

In addition, he also asked the Petitioners to find examples of other countries that has a constitutional court in resolving internal institution disputes that cannot be resolved by the institutions themselves, as proposed in the a quo petition. "This is a new problem theoretically, so the Constitutional Court needs to be shown an example that can indeed strengthen the Court\'s view in observing this dispute," Justice Arief said. 

Before closing the session, Justice Aswanto said that the Petitioners could submit the revised petition no later than Monday, February 4, 2019 at 10.00 WIB to the Registrar\'s Office of the Constitutional Court. (Sri Pujianti/LA/Yuniar Widiastuti)

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