Fahrur Rozi (Petitioner) at the preliminary hearing for the judicial review of Article 96 paragraph (3) of Law No. 13 of 2022 on Lawmaking, Thursday (10/17/2024). Photo by MKRI/Bayu.

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JAKARTA (MKRI) — Constitutional law student of UIN (State Islamic University) Syarif Hidayatullah of Jakarta A. Fahrur Rozi has filed a material judicial review petition of Article 96 paragraph (3) of Law No. 13 of 2022 on Lawmaking to the Constitutional Court (MK). He had observed the president’s increasing legislative power, conspiracy among institutions, and policies during the transition of power, or the lame duck session, in the formation of several laws.

“These three phenomena can simultaneously be observed from the lawmaking trend that does not have meaningful public participation. They are very obvious in the formation process of the Presidential Advisory Council Bill, the State Ministry Bill, and the Immigration Bill, all of which took place very rapidly without much of meaningful public participation,” he said at the preliminary hearing for case No. 144/PUU-XXII/2024 on Thursday, October 17, 2024.

The Petitioner explained that Article 20 of the 1945 Constitution grants the president some lawmaking authority. However, the president’s legislative power has recently been increasing significantly, as shown by the proposal of the amendment of several laws on the president’s authority by the House of Representatives (DPR), i.e. the Presidential Advisory Council Bill and the State Ministry Bill.

Such practice, he argued, is seen as a deviation from the separation of power on which a constitutional democracy is based on. Instead of being rejected by the parliament, the president’s domination in the legislation is fully supported and even expanded to facilitate his agendas and to further his interest. Instead of being critical of the Government, the House accommodates it by initiating the Presidential Advisory Council Bill and the State Ministry Bill, which gives the president full authority to determine the number of ministries and members of his advisory council.

The a quo article provide participatory right only to members of society “who are directly impacted by and/or have interest in” the material of the legislation. It restricts participation of members of society who have concern for the lawmaking process.

Based on logical reasoning, the Petitioner said, the people’s participatory right in lawmaking is not fully guaranteed. This is because the a quo article has set up qualifications for individual and groups of citizens to have legal standing to be able to fight for collective rights of the people.

As a consequence, guarantee of participatory right in lawmaking is limited. In order to be able to fight for their rights or express their views on a lawmaking process, individual and groups of citizens must be directly impacted by and/or have interest in the material of the legislation.

The Petitioner also explained the transition of power or the lame duck session as a time in which an administration is about to expire, and the successor has been elected, or in which an administration is still in power after an election has taken place. The main concern for this time is an undemocratic condition for enacting a new law or take a legally binding action since the people have elected their representatives (Copeland Nagle, 2012).

The Petitioner observed the House’s legislative activities significantly increasing at the end of its term, which received a lot of backlash for the substance being produced. Interestingly enough, head of the Constitutional Law Department of the University of Indonesia Fitria Asril argued that the increase of productivity occurred at the last sessions prior to the inauguration of new members of the House, or within the transition period. This led to declining control by the parliament and increasing legislative function. The Petitioner revealed that during the lame duck session, Law No. 17 of 2014 (2009-2014), Law No. 19 of 2019 (2014-2019), the Presidential Advisory Council Law, and Law No. 39 of 2008 (2019-2024) have been ratified.

In the petitums, the Petitioner requested that the Court declare the following phrases unconstitutional and not legally binding: “and/or have interest” in Article 96 paragraph (3) of Law No. 13 of 2022 if not interpreted as “and/or have concern;” “of the material content” in Article 96 paragraph (3) of Law No. 13 of 2022 if not interpreted as “also including formal aspects;” and “registered in the authorized ministry” in the elucidation to Article 96 paragraph (3) of Law No. 13 of 2022 if not interpreted as “who have concern.”

Justices’ Advice

Deputy Chief Justice Saldi Isra and Constitutional Justices Enny Nurbaningsih and Anwar Usman were on the panel. Justice Enny said the Petitioner should understand the meaning of public participation in said article so that the petition would be coherent.

“You should elaborate the contradiction between [the article] being petitioned and the Constitution. Why? Because Article 96 is related to the Constitutional Court Decision No. 91 of 2020 on the Job Creation Law,” she said.

She advised the Petitioner to revise the petitums. “Please reconsider if the norm were interpreted in this way, what would it read in full. That is what you should consider of the petitums,” she added.

Before adjourning the session, Deputy Chief Justice Saldi Isra said the Petitioner would have 14 days to revise the petition and must submit the revised petition by Wednesday, October 30, 2024.

Author            : Mimi Kartika
Editor            : Lulu Anjarsari P.
PR                 : Raisa Ayuditha Marsaulina
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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