Fitra Arsil and Margarito taking oath before testifying as experts for the Petitioner at the material judicial review hearing of Law No. 12 of 2011 on Lawmaking, Wednesday (10/18/2023). Photo by MKRI/Ifa.
JAKARTA (MKRI) — Law No.12 of 2011 on Lawmaking (P3 Law) does not prescribe MPR/MPRS (People’s Consultative Assembly/Temporary MPR) decrees in the formation of laws and other types of legislation. This statement was made by Universitas Indonesia (UI) law lecturer Fitra Arsil at the seventh material judicial review hearing of the elucidation to Article 7 paragraph (1) letter b of Law No.12 of 2011 on Lawmaking on Wednesday, October 18, 2023 in the plenary courtroom.
“Following the regulating logic in Law No.12 of 2011, MPR/MPRS decrees are included in legislation hierarchy and declared valid despite the aforementioned controversy. However, it does not provide any guideline on the implementation of the materials in MPR/MPRS decrees. Not to mention, it does not provide any space for the implementation of MPR/MPRS decrees in the formation of laws and other types of legislation,” he said in support of the Petitioner.
He explained that Appendix II of Law No.12 of 2011 on lawmaking techniques, MPR decrees are not mentioned at all as a legal basis to be used in the formation of laws and other types of legislation. This means that formally, they cannot be used as a basis for lawmaking or in the “considering part” of laws and other types of legislation.
Fitra also revealed that because there is no other regulation on MPR decrees in lawmaking, in 62 years (1961-2023) 228 laws have mentioned MPR/MPRS decrees in their “considering” part while 54 decrees have been used as a legal basis for the “considering” part by laws. He explained that there is discrepancy in the use of MPR decrees in such a way since the issuance of TAP 1/MPR/2003, Law No. 10 of 2004 and Law No.12 of 2011 on Lawmaking. Since then, no laws use MPR decrees in such a way.
“Since Law No.12 of 2011, there are only two laws that uses MPR decrees as a legal basis, in 2014. Since then until 2023, no MPR decrees are used as a legal basis in lawmaking. MPR decrees in No.12 of 2011 seem to have been a quite serious legal complication, making not only the application of MPR decrees unclear but also redundant and unused in the Indonesian state administration,” he stressed.
MPR’s Institutional Status
At the same hearing, constitutional law expert Margarito Kamis, who was also presented by the Petitioner, also said that the disregard to the MPR’s status as the highest state institution after the amendment to the 1945 Constitution was illogical. “Why? First, not one norm in the 1945 Constitution before the amendment expressly and clearly ‘qualify’ the MPR’s legal status as the highest state institution,” he stressed.
He further explained that the status of the highest state institution was the interpretation of the norms in the Constitution before amendment, which had been based on Article 1 paragraph (2) of the 1945 Constitution except, he added, Article 1 paragraph (2) of the 1945 Constitution read, “The sovereignty shall be in the hand of the people and implemented by the MPR.” He believes that the MPR’s status as “the highest institution” was left to be a topic for academic discourse because its status had not been expressly regulated in the 1945 Constitution before amendment.
“I believe the MPR’s status of the highest institution was a structural interpretation of Article 1 paragraph (2) with functionally interconnected articles before the 1945 Constitution was amended. This idea was set forth in the MPR Decree No. VI/MPR/1973 on the positions and work institutional relations between the highest institutions and high state institutions. Article 1 paragraph (1) of this decree stipulates that the highest state institution in the decree shall be the People’s Consultative Assembly, hereafter referred to as the Assembly. The decree was the basis for the MPR’s status as the highest state institution,” he emphasized.
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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 : Tahlitha Laela/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, October 18, 2023 | 16:02 WIB 701