Expert Staff for Politics and Security of the Ministry of Law and Human Rights, Ibnu Chuldun, delivering the government testimony. Photo by MKRI/Panji.

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JAKARTA, MKRI—The Constitutional Court held a continued judicial review hearing of Article 16 letter a of Law Number 9 of 2010 on Protocol (Protocol Law) on Monday, September 30, 2024, at the Plenary Courtroom. The agenda of the hearing for Case Number 66/PUU-XXII/2024 was to hear testimony from the President/Government.

During the hearing led by Chief Justice Suhartoyo, the government, represented by Expert Staff for Politics and Security from the Ministry of Law and Human Rights, Ibnu Chuldun, stated that the provisions of Article 16 letter a, Article 18, and Article 20 of Protocol Law, using the phrase "Republic of Indonesia,” were in accordance with the rules in law formation, which must not contradict higher regulations.  By using the phrase “Republic of Indonesia”, lawmakers have referred to the provisions of the 1945 Constitution, which has become the permanent nomenclature used.

“In addition to referring to the 1945 Constitution, the use of the phrase “Republic of Indonesia” also reflects an independent state,” he said.

Ibnu argued that referring to provisions of the 1945 Constitution, especially Article 1, the use of the phrase “Republic of Indonesia” does not contradict the Constitution. Meanwhile, the use of “Indonesian nation” would instead raise a question since the purpose of the proclamation is to state the Indonesian nation as an independent state. With independence, the Indonesian nation may have the freedom to choose, both in terms of the form of its state or government, which firmly, the Indonesian nation had chosen a republic and presidential state within the framework of the “Unitary State of the Republic of Indonesia”.

“Substantially, it is sure that the meaning of “Indonesian nation” and “Republic of Indonesia” are different in essence,” Ibnu affirmed.

Ibnu added that the “Republic of Indonesia” has meaning as an independent state, which shows the form of the state, the government, and the governance system. Hence, the provisions of Article 16 Letter a, Article 18, and Article 20 of Protocol Law use the “Republic of Indonesia” with a constitutional basis under the framework of the “Unitary State of the Republic of Indonesia.”

In Ibnu's opinion, the nomenclature of the Independence of the Republic of Indonesia established based on the Convention of the Protocol Law is not a source of law for the Independence Ceremony but a source of law for ceremonial procedures. The first Independence Day Commemoration Ceremony was held on August 17, 1946, at the Gedung Agung in Yogyakarta (the capital city of the country at the time). The nomenclature used was “Commemoration Ceremony of the Independence Day of the Republic of Indonesia.” At that time there was not even a protocol law. The first legal source to use the official term was “Anniversary of the Proclamation of Independence of the Republic of Indonesia” (Article 16 of Government Regulation Number 62 of 1990 as a derivative of Law Number 8 of 1987).

As stated in the Academic Paper and the draft Bill on Protocol proposed by the House of Representatives to the President, the House of Representatives consistently uses the phrase “independence of the Republic of Indonesia” and not the phrase “independence of the Indonesian nation”. The phrase was not the subject of any contentious discussions during the deliberations by linguists and government representatives assigned by the President, as the term “Republic of Indonesia” is used to refer specifically to an internationally recognized state entity.

“Independence of the Republic of Indonesia”

Regarding the arguments of the phrase “Independence of the Republic of Indonesia” to be changed to the phrase “Independence of the Indonesian nation” in Article 16 letter a, Article 18, and Article 20 of the Protocol Law, the Government explained that the form of the Indonesian state is a republic, this is stated in the provisions of Article 1 paragraph (1) of the 1945 Constitution of the Republic of Indonesia, namely, “The State of Indonesia is a Unitary State, in the form of a Republic.” This provision regarding the form of the Indonesian state cannot be changed. The prohibition of such changes is stated in the provisions of Article 37, paragraph (5) of the 1945 Constitution: “Especially regarding the form of the Unitary State of the Republic of Indonesia, no changes can be made”.

“If the use of the phrase “Independence of the Republic of Indonesia” is replaced with the phrase “independence of the Indonesian people” it will certainly reduce the content and meaning of independence itself, where the meaning of independence is a freedom obtained to exercise its rights freely without pressure by any party. The phrase “Independence of the Republic of Indonesia” is the result of the statement of the Indonesian nation as the “Unitary State of the Republic of Indonesia” after independence which is free in determining the choice of state form without any pressure by any country,” Ibnu asserted.

From a linguistic perspective, Ibnu continued, the phrase independence of the Indonesian nation cannot be contrasted with the phrase independence of the Republic of Indonesia; the meaning of both is cumulative in the sense of a nation that has a state in the form of the Republic of Indonesia. Both the first phrase and the second phrase can all be used as stated in Law of the Republic of Indonesia Number 24 of 2009 concerning Flags, Language, and State Emblems, as well as the National Anthem.

The phrase “independence of the Indonesian nation” and the phrase “independence of the Republic of Indonesia” are two linguistic elements whose meanings are contained in the phrase “independence of Indonesia” in the Proclamation text of August 17, 1945. The meaning of the phrases “independence of the Indonesian nation” and independence of the Republic of Indonesia” are both cumulative (not alternative) so that each can be used without conflict. The use of the phrase “independence of the Indonesian nation” follows the phrase “independence of the Republic of Indonesia” as a consequence of the declaration of an independent Indonesian (nation-state).

The Benefits of Science

As for the arguments stating that the provisions of Article 16 letter a, Article 18, and Article 20 of the Protocol Law are contrary to the provisions of Article 28C paragraph (1) and Article 31 paragraph (3) of the 1945 Constitution, which postulates that the articles a quo result in the provision of knowledge Education cannot run properly, the benefits of science are not obtained (Article 28C paragraph (1) of the 1945 Constitution) and the goal of educating the nation's life is not achieved, the Government provides a view that the argument is not a proposition of constitutional loss since it is not measurable. Meanwhile, in the judicial review of the law against the 1945 Constitution, the constitutional loss is a general loss that can be measured and that may reduce or eliminate rights guaranteed by the Constitution.

Article 16 letter a, Article 18, and Article 20 of the Protocol Law have different substance from the provisions of Article 28C paragraph (1) and Article 31 paragraph (3) of the 1945 Constitution, which essentially do not reduce or eliminate the rights of everyone to self-improve, get education or obtain the benefits of science where in fact the education system in Indonesia has developed in line with the development of the life of the nation and state. Likewise, with the fast development of science, the Indonesian people have benefited from the fact that the Indonesian state can keep up with the rapid developments in the international world.

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The Court held a preliminary judicial review hearing of Article 16 letter a of Law Number 9 of 2010 on Protocol (Protocol Law) against the 1945 Constitution on Monday, July 22, 2024. Petitioners felt harmed due to discrepancies between phrases in the Protocol Law and existing facts. “The Protocol Law stated that August 17, 1945, was Indonesia's independence day. Meanwhile, based on history, August 17, 1945, was the independence day or the birth of the Indonesian Nation; if one must mention the Independence of the state of Indonesia, it should be on August 18, 1945. From there, during flag ceremonies, the mention of August 17, 1945, as Indonesia’s Independence Day disadvantaged petitioners,” Singgih explained as petitioners’ legal counsel.

Petitioners also emphasized that the error was also reflected in the Government Circular Letter regarding the Commemoration of the Anniversary of the Republic of Indonesia on August 17. By changing the phrase “The Independence of the Republic of Indonesia” to “The Independence of the Indonesian Nations” in Article 16 letter a, Article 18, and Article 20 of Protocol Law, Petitioners hope that their constitutional rights and duties can be fully fulfilled, so that the national education system can function as intended, and the Government can be more careful in issuing Circular Letters regarding commemoration of national holidays.

For that reason, on the petitum, the petitioners ask the Court to accept and grant the Petitioners’ petition in its entirety to declare Article 16 letter a, Article 18, and Article 20 of Protocol Law so far as the phrase “the Independence of the Republic of Indonesia” contradicts the 1945 Constitution and has no legally binding power.

Author: Utami Argawati.

Editor: N. Rosi

PR: Fauzan F.

Translator: Rizky Kurnia Chaesario (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 prevails.

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