Constitutionality of Presidential Regulation Questioned

Bonatua Silalahi, the Petitioner, challenging Law No. 12 of 2011 on Lawmaking, Monday (12/5/2022). Photo by MKRI/Bayu.

Monday, December 5, 2022 | 15:53 WIB

JAKARTA (MKRI) — The Constitutional Court (MK) held a preliminary hearing of the judicial review of Law No. 12 of 2011 on Lawmaking on Monday, December 5, 2022. The petition No. 116/PUU-XX/2022 was filed  by Bonatua Silalahi and his company PT Bina Jasa Konstruksi, who question Article 1 point 6 of Law No. 12 of 2011, which reads, “Presidential Regulation means Legislation issued by the President to implement superior Legislation or to exercise the government’s authority.” He also questions Article 7 paragraph (1) and Article 13 of the Lawmaking Law and its elucidation.

Virtually, the Petitioners argued that presidential regulations can be formed without any clear reason or mandate from a superior legislation. “Before this law was amended, there was no such clause, during President Megawati’s term. So, I became interested in [questioning] why the president can make regulations without any mandate from the 1945 Constitution that orders the DPR and the president to form a law, then the law orders the formation of a government regulation, then the government regulation forms the presidential regulation,” Silalahi explained.

Silalahi further explained that the Lawmaking Law is problematic because it does not mention that the position of the presidential regulation is different from that in the 1945 Constitution. “This indicates that the [presidential regulation] is not legislation as regulated in our Constitution and it can be ascertained that it is not directly based on the 1945 Constitution,” he said.

In the petition, the Petitioners explained that the a quo article, which stipulates that the presidential regulation (perpres) is a new and statutory regulation direct under the government regulation (PP) and higher than the provincial and city/regency regulation, could create legal uncertainty for the Petitioners regarding the basis for forming the presidential regulation, especially those to exercise government power. The Petitioners also believe that the phrase ‘or to exercise the government’s authority in the article could also lead to multiple interpretations, including the presidential regulation being allowed to be made without any mandate from a law or higher statutory regulation. In addition, the formation of a presidential regulation can also result in intervention and even an exchange of power. For this reason, the Petitioners requested that the Constitutional Court declare the presidential regulation not a direct derivative of the 1945 Constitution and eliminate the phrase ‘or to exercise the government’s authorityand declare it null and void.

Justices’ Advice

In response, Constitutional Justice Enny Nurbaningsih advised the Petitioners to revise their legal standing. “Observe how to write [terms] formally. Writing the 1945 Constitution as ‘UU 45’ is inappropriate. Mention it in full first, ‘UUD Negara Republik Indonesia’ then write in brackets as ‘UUD 1945.’ The writing must be meticulous,” she said.

She added that it must be clarified whether the Petitioners act as individuals or a legal entity. “It is up to you, but if you do so as a legal entity, you must be able to prove that the legal entity exists and who can represent it based on what. Show who have the right to represent it in court and who. Clarify it,” she advised.

Meanwhile, Constitutional Justice Manahan M. P. Sitompul advised that the Petitioners observe the Constitutional Court Regulation (PMK). “You probably have not read it. Do you know what it is? You see there the complete format of a petition. It details that [the petition comprises the petitioner’s] profile, Constitutional Court’s authority, [the petitioner’s] legal standing, the posita, and the petitum. These five components must be clear. Also read Articles 10 and 11 of the PMK No. 2 of 2021,” he explained.

Justice Manahan also advised the Petitioners to elaborate their constitutional impairment. “What was your or your company’s constitutional impairment [due to] Article 13, Article 1 point 6, which you petitioned. What harm did you or your company suffer that the norms should be revised or annulled?” he asked.

The panel, chaired by Constitutional Justice Wahiduddin Adams, gave the Petitioners 14 workdays to revise the petition.

Writer        : Utami Argawati
Editor        : Lulu Anjarsari P.
PR            : Andhini S. F.
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 12/6/2022 10:53 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.

Monday, December 05, 2022 | 15:53 WIB 213