The Petitioner’s witness taking oath at the material judicial review hearing of Law No. 12 of 2011 on Lawmaking, Wednesday (9/13/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Special committee (pansus) that discussed Law No. 12 of 2011 on Lawmaking intended to include the MPR (People’s Consultative Assembly) decrees (TAP MPR) into the hierarchy of statutory legislation after the 1945 of the Constitution, said Ahmad Yani, a former member of the Lawmaking Law special committee and former member of the House Commission III of 2009-2014, at a material judicial review hearing of the Lawmaking Law, Wednesday, September 13, 2023 in the plenary courtroom.
“Law No.12 of 2011 on Lawmaking or the P3 Law incorporates new elements that were not in Law No. 10 of 2004 yet, especially placing the MPR decrees as legislation after the 1945 Constitution, as per in Article 7 paragraph (1). And detailing Regional Regulations into Provincial Regulations and City/Regency Regulations,” he added as a witness for the Petitioner of case No. 66/PUU-XXI/2023.
Since the Lawmaking Bill was drafted, Ahmad Yani disclosed, the idea of integrating MPR decrees in the hierarchy of the statutory legislation emerged and became a controversy. However, he said, the idea was abandoned with a lot of considerations.
“The initial draft [of the Lawmaking Bill] did not include the TAP MPR at first, so the idea of inserting it even though it had been considered for a long time even caused debate. This notion was reintroduced when the special committee discussed it, where the government’s involvement in TAP MPR was also discussed,” he explained.
Ahmad Yani added that at the time, the House’s (DPR) Legislation Body (Baleg) believed that the MPR was still authorized to form MPR decrees because it was the only institution that formed the 1945 Constitution, and no other state institutions had similar jurisdiction.
“If it had the authority but its decree was deemed invalid, only limited, minimized, or localized with existing ones, as in MPR Decree No. 3 of 2003, the problem was more psychological that, despite information dissemination, now there was a legislation that made the MPR the second source of law after the Constitution. So, it is not purely an approach to the norms prescribed by the Constitution and the Law,” he said.
MPR No Longer Authorized to Make Decrees
Meanwhile, the Petitioner’s witness Martin Hamonangan Hutabarat, a former member of the House Commission III for 2009-2014, said that the MPR initiated four pillars of nationality in 2009, which was followed by the drafting of books as guidelines. The guidebooks stated that the MPR was no longer authorized to make MPR decrees since the amendment of the 1945 Constitution.
“It was a guideline as if it was a doctrine, and that is what we spread in universities etc. The MPR is no longer the highest state institution. Why is it? Because nothing in the 1945 Constitution states that the MPR has the ability to issue MPR decrees. Previously, the MPR held the authority to establish the [State Policy Guidelines (GBHN)]. Other decrees are based on it,” he added.
He said that Law No. 10 of 2004 on legislation hierarchy eliminated the TAP MPR’s position in the legislation structure. However, the following year, the House proposed an initiative to amend it with Law No. 12 of 2011. “The MPR decree was included as one of the hierarchical sources of law after the Constitution above the law,” he asserted.
Hutabarat recognized the dispute in the House Baleg over whether making TAP MPR a source of law would create a possibility for additional MPR decrees in the Indonesian constitutional framework. “Finally, in the hierarchy of laws and regulations, what Law No. 12 of 2011 refers to as the MPR decrees is only those that are still valid,” he explained.
Constitutionality of MPR’s Authority Questioned
Yusril Ihza Mahendra Revises Petition on Restriction over MPR’s Authority
MPR Says Some Authority Not Regulated Yet
Historian, Witnesses Attend Hearing on MPR’s Authority
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 : Nyi Mas Laras Nur Inten Kemalasari /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.
Wednesday, September 13, 2023 | 15:29 WIB 15