Rambe Kamarul Zaman testifying as a witness for the Petitioner at the material judicial review hearing of Law No. 12 of 2011 on Lawmaking, Thursday (8/24/2023). Photo by MKRI/Fauzan.
JAKARTA (MKRI) — The material judicial review hearing of the elucidation to Article 7 paragraph (1) letter b of Law No. 12 of 2011 on Lawmaking continued on Thursday, August 24, 2023 on site in one of the Constitutional Court’s (MK) panel courtrooms. The case No. 66/PUU-XXI/2023 was filed by the Crescent Star Party (PBB), represented by chairman Yusril Ihza Mahendra and secretary-general Afriansyah Noor. This hearing had been scheduled to hear the Government’s and the Petitioner’s witnesses.
At this fourth hearing, the Director-General of Legislation Asep N. Mulyana testified on behalf of the Government that the norms elaborated in the subject matter, i.e. Article 7 paragraph (1) letter b of the Lawmaking Law, are the MPR (People’s Consultative Assembly) and MPRS (Temporary MPR) decrees of 1960-2022. Factually, with the change to the administrative structure through the four-stage amendment to the 1945 Constitution, those decrees had been declared null and void. However, juridically, by the Lawmaking Law, MPR decrees are said to be part of the hierarchy of the statutory legislation.
“The hierarchy of legislation according to the elucidation to Article 7 paragraph (1) letter b of Law No. 12 of 2011… what is meant by hierarchy is the levels of legislation based on the principle that lower legislation cannot contradict that above it. Juridically, based on the hierarchy of legislation, MPR decrees are below the Constitution and above statutory laws,” Asep explained before the hearing chaired by Deputy Chief Justice Saldi Isra.
Asep added that MPR decrees have a high position in the hierarchy, but the substance is unclear, given that they are based on varied factual conditions if viewed from the time of enforcement, i.e. 1960-2022, and have been declared null and void. He added this obscurity requires some explanation. However, MPR decrees are a legitimate part of the hierarchy of legislation.
He also explained that the authority to amend the Constitution is higher than that to form laws. If one day the MPR amend the Constitution, as a legislature it must also make adjustments following the amendment hierarchically. As a consequence of the amendment, lower legislation cannot contradict those above it.
“However, the fact is that so far, the MPR has never implemented Article 3 paragraph (1) of the 1945 Constitution, so it seems as if it is not functioning. This is different from the House, which has actively exercised its authority and functions in lawmaking. This is because the MPR has a higher legislation,” Asep explained.
He also said that if the function of provisions on the MPR was expanded following the Petitioner’s request, they would be unconstitutional since they could lead to legal uncertainty. “Because MPR decrees are above statutory laws, it is difficult to enforce them by law. In addition, its legal standing must also be considered,” he stressed.
Testimony by Historian
One of the Petitioner’s witnesses, Rully Chairul Azwar, who was a member of the MPR’s Working Body (Badan Pekerja) ad hoc I committee in 2004, testified about the formation of the MPR decrees in 2003. He said the key reason of the amendment to the Constitution was the perception of the president’s overarching power vs. the House’s weak power.
“The spirit at the time was to strengthen the House and to reduce the president’s power. There was an idea that the people is manifested in the MPR, but the MPR could not work alone. So, day by day, it gave mandate to the president and sovereignty was—in essence—exercised by the president. This was seen as authoritarian,” he explained.
He added that the debate was about the MPR’s authority. “It was time that the people exercised [sovereignty] directly, no longer through the MPR, thus constitutional supremacy would reign,” he said.
Meanwhile, Rambe Kamarul Zaman, another witness for the Petitioner, said the discussion to make decisions at the plenary session must go through four stages. “In the first through fourth stage discussions it was never debated whether the MPR decrees would be regeling [(regulating)] or beschiking [(ordering)]; whether the MPR would still have the authority to issue decrees. All substance of decrees had been mentioned in the Constitution. Who said they no longer applied? Were new MPR decrees need to be issued?” he stressed.
Constitutionality of MPR’s Authority Questioned
Yusril Ihza Mahendra Revises Petition on Restriction over MPR’s Authority
MPR Says Some Authority Not Regulated Yet
At the preliminary hearing, the Petitioner—represented by chairman Yusril Ihza Mahendra and secretary-general Afriansyah Noor—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.”
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 (ordering) 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.
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.
Thursday, August 24, 2023 | 15:22 WIB 97