Chief Justice Suhartoyo talking to Deputy Chief Justice Saldi Isra during the ruling hearing for the material judicial review of the Lawmaking Law, Tuesday (1/16/2024). Photo by MKRI/Ifa.

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JAKARTA (MKRI) — The Constitutional Court (MK) rejected the entire material judicial review petition of Article 7 paragraph (1) letter b of Law No. 12 of 2011 on Lawmaking for case No. 66/PUU-XXI/2023. The petition was filed by the Crescent Star Party (PBB), represented by chairman Yusril Ihza Mahendra and secretary-general Afriansyah Noor.

“[The Court] adjudicated, rejects the Petitioner’s petition in its entirety,” said Chief Justice Suhartoyo at the ruling hearing on Tuesday, January 16, 2024.

In its legal opinion, delivered by Constitutional Justice Enny Nurbaningsih, the Court asserted that aside from acknowledging several existing People’s Consultative Assembly (MPR) decrees that are still in force, the a quo norm also affirms that after the state structure be revised after the amendment to the 1945 Constitution, the MPR no longer has the authority to issue regeling (regulating) decrees that bound others. Therefore, the a quo norm cannot be said to be against the norm it elucidates.

Justice Enny continued that if Article 7 paragraph (1) letter b of the Lawmaking Law was to be interpreted without its elucidation as the Petitioner requested, and if the elucidation was declared unconstitutional and not legally binding, there would be constitutional issues and legal uncertainty. This is because the article affirms MPR decrees as one of the types of legislation within the legislation system.

Meanwhile, Justice Enny said, one cannot fully comprehend Article 7 paragraph (1) letter b of the Lawmaking Law without understanding Article 7 paragraph (2), which affirms that the power of legislation is according to the hierarchy. In the elucidation to Article 7 paragraph (2), it is further stated, “In this provision, what is referred to by ‘hierarchy’ is the levels of all types of Legislation based on the principle that lower Legislation pieces ought not go against higher ones.”

This means that the juridical consequence of Article 7 paragraph (2) and its elucidation is that MPR decrees, which are placed above laws, will have a higher hierarchical power than laws and on it the hierarchy of legislation applies. As such, in order to judge the compliance of this principle of hierarchy, MPR decrees should be able to be reviewed and used as touchstone for judicial review.

However, referring to the 1945 Constitution, both the Supreme Court and the Constitutional Court do not have the authority to review MPR decrees (vide Article 24A paragraph (1) and Article 24C paragraph (1) of the 1945 Constitution). The Constitutional Court’s inability to review them has been affirmed in Decisions No. 24/PUU-XI/2013, No. 75/PUU-XII/2014, and No. 59/PUU-XIII/2015.

“The elucidation of the a quo article is not a norm as it only affirms Articles 2 and 4 of MPR Decree No. 1/MPR/2003 that is still effect because it has not been fully implemented until today. Based on the aforementioned legal considerations, the Court is of the opinion that the Petitioner’s argument on the assumption that the elucidation to Article 7 paragraph (1) letter b of Law No. 12 of 2011 is against Article 28D paragraph (1) of the 1945 Constitution was legally groundless,” Justice Enny stressed.

She added that despite the absence of constitutionality issue, there is the urgency for the legislatures to confirm the position and enforcement of MPR decrees. Such confirmation is important, the Court emphasized, as they should not be included in the types and hierarchy of legislation.

“Therefore, it is important for the Court to emphasize that in the future, any amendments to laws that regulate lawmaking needs to determine and ensure that MPR decrees are no longer included in the types and hierarchy of legislation,” Justice Enny stated.

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Expert: MPR Decisions Not Regulatory Legal Products

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Dissenting Opinion

Deputy Chief Justice Saldi Isra and Chief Justice Suhartoyo had a dissenting opinion on the case. They asserted that the removal of the elucidation in question would not eliminate the legal issue of the existence of MPR decrees in the hierarchy of legislation.

“Therefore, we are inclined to declare MPR decrees in the hierarchy of legislation as regulated in Article 7 paragraph (1) letter b of Law No. 12 of 2011 unconstitutional,” Justice Saldi said.

He added that MPR decrees should be placed as transitional provisions in Law No. 12 of 2011, or at least its position is made parallel to laws, not above laws. This is affirmed by the fact that the contents of several MPR decrees that have been annulled were moved to laws. By positioning MPR decrees parallel to laws, the elucidation to Article 7 paragraph (1) letter b can be made a norm within the body of Law No. 12 of 2011.

“Based on the aforementioned legal considerations, since the material that is granted is not the same as what the Petitioner petitioned, the Constitutional Court should have granted the a quo petition in part,” Justice Saldi concluded.

The Petitioner believed the regulating MPR decrees had saved the state during at least three constitutional crises. In the petitum, the Petitioner requested that the Court declare the elucidation of Article 7 paragraph (1) letter (b) of the Lawmaking Law unconstitutional and not legally binding.

Author       : Mimi Kartika
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.

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