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Thursday, April 8, 2021 | 14:26 WIB

Justice Saldi Isra speaking at a webinar on “Lawmaking after Amendment to the 1945 Constitution” organized by Andalas University Law Faculty’s Center for Constitutional Studies (PUSaKO) and the Hanns Seidel Foundation (HSF), Thursday (8/4/2021). Photo by Humas MK/Panji.

JAKARTA, Public Relations—Constitutional Justice Saldi Isra spoke at a webinar on “Lawmaking after Amendment to the 1945 Constitution” organized by Andalas University Law Faculty’s Center for Constitutional Studies (PUSaKO) and the Hanns Seidel Foundation (HSF) on Thursday, April 8, 2021.

He began his keynote speech by saying that the lawmaking process throughout the history of Indonesia is very interesting. “As from time to time there are significant differences in lawmaking in Indonesia,” he said.

The 1945 Constitution pre-amendment didn’t talk much about lawmaking procedures despite it being a fundamental issue, because the founding fathers focused on other pressing issues. “The founding fathers focused on preparing for the independence within the limitations of the Constitution,” he explained.

The supra-structural politics of lawmaking in the 1945 Constitution pre-amendment was simple, leading to multiple interpretation of lawmaking. “In the original or pre-amended 1945 Constitution, the lawmaking procedure was simple. I tried to investigate why it was [and found that] there was no in-depth discussion about lawmaking in the still vague design of the constitution. Would our constitution implement the presidential or the parliamentary government system? In theory, the government system will lead to detailed elaboration of the lawmaking procedure,” he explained.

Fundamental Difference

Justice Saldi futher explained the fundamental difference of the lawmaking process between the presidential and parliamentary systems, which concerns the relations between the executive and legislative powers. In the parliamentary system, the executive and legislative intertwine in parliament. Meanwhile, in the parliamentary system, because the executive is also a member of the parliament, both the mempers of the parliament (MPs) and the executive, who is also a member of the parliament, make the law. So, in lawmaking in the parliamentary system, there is no strict separation of the executive and the legislative.

On the other hand, in the presidential system, the executive and the legislative have different positions. The MPs and the president are elected. This applies in Indonesia. It differs from the parliamentary system, in which the people only elect the MPs.

“When the MPs and president are elected in different elections, it affects lawmaking,” Justice Saldi said. He stressed that in the 1945 Constitution pre-amendment, there wasn’t any in-depth discussion about the legislative functions and lawmaking.

He further explained that the reimplementation of the 1945 Constitution with a presidential decree on July 5, 1959 meant that the limited legislative functions in the 1945 Constitution returned. At the time, the lawmaking process was still under early discussions. The only document that the People’s Representative Council of Mutual Assistance (DPR-GR) could study was that of the lawmaking process under the Provisional Constitution of 1950 (UUDS 1950), when Indonesia applies the parliamentary system.

“The DPR’s rules of procedure under UUDS 1950 became a reference for lawmaking after the return to the 1945 Constitution. At that time, the executive and legislative started discussing lawmaking. The 1945 Constitution formed by the founding fathers didn’t create a forum for discussion between the executive and the legislative about lawmaking,” he said.

Amendment to the 1945 Constitution

Justice Saldi explained that in the beginning of the 1998 Reform, Indonesia started looking into amending the 1945 Constitution. Judging from the records of the amendment to the 1945 Constitution, it started with a simple idea. During the Old and New Order, the people witness a long presidential term limit and vast presidential power. It prompted the idea of amendment.

“An idea emerged that the presidential power must be limited. On one hand, there was an idea to limit presidential power. On the other hand, there was an idea to strengthen the DPR. The discussions were intense. However, in state administration, any discussion over one point in the state design will not stop only there. For example, if we are to strengthen the DPR, it will impact other state institutions,” he explained.

As a result, the amendment to the 1945 Constitution was comprehensive. One of the amendment points was the relations between the DPR and the judiciary, especially in filling in the Supreme Court justice vacancies. After it was settled, a new issue arose—cases piled on in the Supreme Court, so another body must ease the burden. This spurred the establishment of the Constitutional Court.

“Nowadays there has been discussion on a limited amendment to the 1945 Constitution. It is improbable [as] any discussion on one issue in the Constitution will affect other issues. For example, any change made to the DPR will affect its relations to the MPR, the DPD, the Constitutional Court, the Supreme Court, etc,” Justice Saldi said.

He added that one of the key issues would be lawmaking. Therefore, the amenders made a more ideal design of lawmaking. However, the records of the amendment to the 1945 Constitution on lawmaking don’t show any discussion over lawmaking in the presidential system.

“That is because the amenders of the 1945 Constitution agreed on maintaining the presidential system,” he added.

Justice Saldi urged the figures in the webinar who would like to write books on lawmaking to understand the lawmaking design by referring to the Constitutional Court Decision No. 92 of 2012, which elaborates on lawmaking.

Writer: Nano Tresna Arfana
Editor: Nur R.
Uploader: Panji

Translator: Yuniar Widiastuti
Editor: NL

Translation uploaded on 4/9/2021 11:29 WIB

Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.

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