I Dewa Gede Palguna taking oath to testify as an expert at a material judicial review hearing of the Lawmaking Law, Thursday (12/7/2023). Photo by MKRI/Ifa.

---

JAKARTA (MKRI) — The People’s Consultative Assembly (MPR) no longer has the authority to make decrees derived from its position as the executor of the people’s sovereignty, said former constitutional justice of 2015-2020 I Dewa Gede Palguna at a material judicial review hearing of Law No. 12 of 2011 on Lawmaking on Thursday, December 7, 2023. Palguna attended the tenth hearing as an expert presented by the Constitutional Court (MK).

“If what is meant by the question is the authority to make decrees derived from the construction of the MPR’s position as the executor of the people’s sovereignty, the embodiment of all the Indonesian people, and the highest state institution, then the answer is no,” he said in front of the panel of justices led by Chief Justice Suhartoyo.

Palguna, who was also an MPR member of the regional representative for 1999-2004, explained that prior to the amendment of the 1945 Constitution, the basis for granting the MPR the authority to issue decrees was derived from the idea that the MPR is the executor of the people’s sovereignty as stated in Article 1 paragraph (2) of the 1945 Constitution. Article 3 of the 1945 Constitution also reads, “The MPR shall be authorized to stipulate the Constitution and the state policy guidelines.”

Furthermore, Palguna stated that history records that by interpreting Article 3 of the 1945 Constitution before the amendment, the Provisional MPR (MPRS) for the first time issued a decree, which was Decree No. I/MPRS/1960 on the political manifesto of the Republic of Indonesia as the state policy guidelines. Since then, a state administration practice was started in which the MPRS and MPR issued both regeling (regulating) and beschikking (deciding) decrees.

After the amendment of the 1945 Constitution, which began in 1999, Article 1 paragraph (2) of the 1945 Constitution was amended to read “The sovereignty shall be in the hand of the people and implemented according to the Constitution.” This change led to a change in the People’s Consultative Assembly’s position, which is no longer considered the sole executor of the people’s sovereignty or the highest state institution.

Palguna continued that, with this amendment, there has also been a fundamental change in the Indonesian constitutional system, from MPR supremacy to constitutional supremacy. Meanwhile, the elucidation of laws, which prima facie appears to contain new norms (thus not in accordance with the science and technicalities of legislation) but actually implements the mandate in the 1945 Constitution, must be declared unconstitutional.

In addition, the Court fully has the authority to determine the constitutional requirements of such provisions without being trapped in the role of a positive legislator. For example, by giving consideration to the legislatures to move the substance contained in the elucidation to Article 7 paragraph (1) letter b of Law No. 12 of 2011 on Lawmaking into a normative provision within the Lawmaking Law.

Also read:

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

MPR Decrees Once Was to Be Included in Legislation

UU P3 Tidak Beri Tempat TAP MPR dalam Pembentukan Peraturan Perundang-undangan

Lawmaking Law Does Not Prescribe TAP MPR

Expert: MPR Decisions Not Regulatory Legal Products

At the preliminary hearing, the Petitioner of case No. 66/PUU-XXI/2023—the Crescent Star Party (PBB), 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       : Mimi Kartika
Editor        : Lulu Anjarsari P.
PR            : Andhini S.F.
Translator  : Najwa Afifah Lukman/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.

---