Constitutional Justice Saldi Isra reading out the Court’s legal considerations at the ruling hearing of the material judicial review of Law No. 23 of 2014 on the Regional Government, Tuesday (5/31/2022). Photo by Humas MK/Ifa.
Constitutional Justice Saldi Isra reading out the Court’s legal considerations at the ruling hearing of the material judicial review of Law No. 23 of 2014 on the Regional Government, Tuesday (5/31/2022). Photo by Humas MK/Ifa.
Tuesday, May 31, 2022 | 14:45 WIB
JAKARTA, Public Relations—The Constitutional Court (MK) passed a ruling on the provision on the filling of the provincial DPRD (Regional Legislative Council) leadership in Law No. 23 of 2014 on the Regional Government. In the verdict of the Decision No. 31/PUU-XX/2022, the Court granted part of the petition filed by East Kalimantan DPRD (Regional Legislative Council) member Hasanuddin.
“[The Court] adjudicated, grants the Petitioner’s petition in part,” said Deputy Chief Justice Aswanto at the ruling hearing on Tuesday afternoon, May 31, 2022.
The Court emphasized that the formulation of the phrase “inaugurated by a Ministerial Decree” in Article 112 paragraph (4) of the Regional Government Law was a common phrase in legitimate decrees and/or actions by authorized government institutions or officials.
“In the context of the a quo case, the Ministry of Home Affairs have the authority to inaugurate provincial DPRD leadership based on a decision of a plenary meeting of the provincial DPRD. Such a phrase can also be found in various provisions such as [that regarding] the membership of the provincial DPRD, [which] is also officiated by a ministerial decree,” Constitutional Justice Saldi Isra explained, reading out the Court’s opinion.
The drawn-out process of replacing the DPRD leadership, the Court asserted, would lead to legal uncertainty. This could actually lead to the denial to justice. Based on this legal consideration, the phrase “inaugurated by a Ministerial Decree” is conditionally unconstitutional as long as it not be interpreted as “necessitates an administrative follow-up insofar as the internal process within the political party and the DPRD had been carried out in accordance with the provisions of the legislation.” Therefore, according to the Court, to avoid disruption to the regional government and for the sake of legal certainty, such an interpretation requires that the a quo administrative action must be carried out immediately in accordance with the provisions of the legislation.
Based on the aforementioned legal considerations, because the Petitioner had requested in his petitum that Article 112 paragraph (4) of Law No. 23 of 2014 along the phrase “inaugurated by a Ministerial Decree” be declared conditionally constitutional and legally binding only if interpreted as “a formal decision based on the authority of the minister and is declarative by requiring to follow up on the administrative process on the decision on the privilege of political parties based on the order of the most seats in the Provincial DPRD as a result of the election vote acquisition in determining the leadership of the Provincial DPRD,” the Court asserted that the phrase “inaugurated by a Ministerial Decree” was contrary to the principle of legal certainty as referred to in Article 28D paragraph (1) of the 1945 Constitution if not interpreted as “necessitas an administrative follow-up insofar as the internal process within the political party and the DPRD had been carried out in accordance with the provisions of the legislation.”
“As such, although basically both the Petitioner’s petitum and the Court’s opinion have similarities in terms of the phrase in question, it must be interpreted so that it remains constitutional and has binding legal force. However, the Court has [a different view] with regard to the terms of its constitutionality. Thus, the Petitioner’s petition is legally grounded in part,” Justice Saldi stressed.
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The case No. 31/PUU-XX/2022 was filed by East Kalimantan DPRD (Regional Legislative Council) member Hasanuddin, who challenges Article 112 paragraph (4) of the Regional Government Law, which reads, “The chairperson and deputy chairperson of the Provincial Regional Legislative Council shall be inaugurated by a Ministerial Decree.”
At the preliminary hearing on Wednesday, March 23, 2022, legal counsel Ilhamsyah asserted that the Petitioner believed there to be legal uncertainty concerning H. Makmur, East Kalimantan DPRD chair for 2019-2024, who had been dismissed by the Decree of the Chair and Secretary-General of the Golkar central executive board (DPP) No. B-600/Golkar/VI/2021 on the Interim Change of Leadership of the East Kalimantan Province DPRD dated June 16, 2021; the Decree of the East Kalimantan Province DPRD No. 36 of 2021 dated November 2, 2021; the Letter of the East Kalimantan Province DPRD No. 160/II.I-1407/Set-DPRD addressed to the Minister of Home Affairs through the East Kalimantan Governor dated November 16, 2021 regarding the Proposal to Replace the Chair and Certify a Candidate for Substitute Chairperson of the East Kalimantan Province DPRD for the remainder of the 2019-2024 term.
“The Petitioner’s legitimacy as the chair of the East Kalimantan DPRD seems to have been ignored by H. Makmur, who is still the chair of the East Kalimantan DPRD, is still acting as the chair of the East Kalimantan DPRD, and is still signing various DPRD letters for various events, and so on,” Ilhamsyah explained.
Therefore, in the petitum, the Petitioner requested that the Court declare Article 112 paragraph (4) of Law No. 23 of 2014 unconstitutional and not legally binding if the phrase “inaugurated by a Ministerial Decree” not be interpreted as “a formal decision based on the authority of the minister and is declarative by requiring to follow up on the administrative process on the decision on the privilege of political parties based on the order of the most seats in the Provincial DPRD as a result of the election vote acquisition in determining the leadership of the Provincial DPRD.”
Writer : Nano Tresna Arfana
Editor : Nur R.
PR : Muhammad Halim
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 6/2/2022 08:13 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
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