Constitutionality of MPR’s Authority Questioned

The Petitioner’s legal counsels reading out the subject matter at the preliminary hearing of the material judicial review of the Lawmaking Law, Monday (7/10/2023). Photo by Humas MK/Ifa.

JAKARTA (MKRI) — The Constitutional Court (MK) held the preliminary hearing of the material judicial review of the elucidation to Article 7 paragraph (1) letter b of Law No. 12 of 2011 on Lawmaking on Monday, July 10, 2023 in the plenary courtroom. The petition No. 66/PUU-XXI/2023 was filed by the Crescent Star Party (PBB), represented by chairman Yusril Ihza Mahendra and secretary-general Afriansyah Noor.

At the on-site hearing, the Petitioner, represented by legal counsel M. Iqbal Sumarlan, asserted that with the amendment of articles regulating the People’s Consultative Assembly (MPR) in the 1945 Constitution, the removal of the elucidation as an integral part of the basic law, means there has been a fundamental change of the MPR as the only institution that exercises the sovereignty of the people and is the “highest state institution” and at the same time as the embodiment of “all Indonesian people.”

“Nonetheless, none of the articles of the 1945 Constitution amendment prohibits the MPR from making decrees either of a beschikking nature such as inaugurating the president and vice president and dismissing them as a result of impeachment, or to make decrees of a regulating nature (regeling) to elaborate the arrangements in the 1945 Constitution, which cannot be regulated by law. Therefore, the mention of the existence of MPR decrees as one type of legislation, whose hierarchy is below the Constitution and above the law, is something that is academically acceptable and justified,” said Iqbal before the panel led by Constitutional Justice Wahiduddin Adams.

The Petitioner believes regulating MPR decrees has saved the state during at least three constitutional crises. First, the temporary MPRS issued a decree that prohibited Marxism and Leninism after the G30S (30 September Movement) of the Indonesian Communist Party (PKI) rebellion in 1965, after previously Supersemar-bearer General Soeharto dissolved the PKI on March 3, 1966. Second, the MPRS issued a beshickking stipulation to establish the Supersemar-bearer as the acting president of the Republic of Indonesia after President Soekarno was dismissed by the MPRS in 1967. Third, the MPR issued a decree regarding the president’s accountability through memoranda I and II that could dismiss the president. This provision made the impeachment of President Abdurrahman Wahid legal and constitutional. Fourth, the MPR issued Decree No. VII/MPR/1973 on absence of the president and/or vice president, which was used as to impeach President Soeharto and swear in President B.J. Habibie before the Chief Supreme Justice, when the MPR was unable to convene due to the monetary crisis of 1998. This decree made the resignation of President Suharto and the swearing-in of Vice President BJ Habibie as his successor legal and constitutional.

Legal counsel Irfan Maulana Muharam said the MPR Decree No. 1/MPR/2003 only classified which MPR decrees of the MPRS and MPR were still valid and no longer valid. It did not stipulate that the MPR is no longer authorized to make new decrees, as mentioned in Articles 2 and 4. Thus, the stipulation of the elucidation to that some MPR and MPRS decrees are still in force in the elucidation is not only unconstitutional but also contrary to the elucidation to Article 7 paragraph (1) letter b of the a quo Law.

MPR Not Authorized to Set Legislation Hierarchy

The Petitioner asserted that the MPR is not authorized to formulate the hierarchy of laws and regulations in Indonesia. This authority belongs to the president and the House based on Article 22A of the 1945 Constitution, which reads, “Further provisions on the procedure to enact laws shall be regulated by law.” The law established based on this article regulates the type and hierarchy of laws and regulations, not the MPR decrees or even in the DPR-GR memorandum as at the beginning of the New Order government.

Then, Irfan continued, the contradiction between the article and the elucidation could potentially cause legal uncertainty, which is against Article 28D paragraph (1) of the 1945 Constitution. Even to this day, members of the MPR have doubts whether the change in the status and position of the MPR due to the amendment to the 1945 Constitution has caused it to lose authority to make regulatory decrees in addition to its authority to amend the 1945 Constitution.

Therefore, for the sake of legal certainty, the elucidation to Article 7 paragraph (1) letter (b) of the a quo Law must be declared in violation of Article 28D paragraph (1) of the 1945 Constitution. In the petitum, the Petitioner requests that the Court declare the elucidation of said article unconstitutional and not legally binding.

Justices’ Advice

Constitutional Justice Manahan M. P. Sitompul said, “In the legal standing or posita, please emphasize [the touchstone]. Stress the statute/bylaw in the legal standing that the rightful [representation of the party] are the chairperson and secretary-general, as it may be different among political parties.”

Meanwhile, Constitutional Justice Wahiduddin Adams advised the Petitioner to make some revisions. “The explanations are generally good, but there is a mistake on page 5, which mentions rehearing. Second, the background of the petition or the Petitioner’s argument is the focus of the theory. I think it’s been included. However, that the Petitioner can construct actual constitutional issues to support the argument,” he said.

Before concluding the hearing, Justice Wahiduddin announced that the Petitioner had 14 workdays to revise the petition and they were to submit the revised petition to the Registrar’s Office by Monday, July 24 at 10:00 WIB.

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

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, July 10, 2023 | 17:33 WIB 279