MK Affirms that MPR Has No Authority to Issue Decrees

The loss of the MPR's authority to issue this decree is a consequence of fundamental changes to the 1945 Constitution.

The following article was translated using both Microsoft Azure Open AI and Google Translation AI. The original article can be found in MK Tegaskan MPR Tak Berwenang Keluarkan Ketetapan

KOMPAS/HENDRA A SETYAWAN

MPR, DPR, DPD Complex, Senayan, Jakarta.

JAKARTA, KOMPAS — The Constitutional Court emphasized that the People's Consultative Assembly does not have the authority to issue decrees that are regulatory (regeling) and have binding effect. The loss of this authority is a consequence of fundamental changes to the 1945 Constitution which affected the Indonesian constitutional system, in particular changes to the function and authority of the MPR.

Even though there was a dissenting opinion from Chief Justice Suhartoyo and Deputy Chief Justice Saldi Isra, the Constitutional Court rejected the petition submitted by the Crescent Star Party, represented by its chairman, Yusril Ihza Mahendra, and its Secretary General, Afriansyah Noor, in verdict reading hearing, Tuesday (16/1/2024). The Crescent Star Party questioned the Explanation of Article 7 Paragraph (1) Letter b of Law Number 12 of 2011 concerning the Formation of Legislative Regulations.

As known, Law No. 12/2011 regulates the type and hierarchy of legal regulations in Article 7 Paragraph (1). The MPR Decree or Tap MPR is placed second after/below the 1945 Constitution and above laws. In the paragraph explanation, it is mentioned that the meaning of MPR Decree is Tap MPRS and Article 2 and 4 of MPR Decree Number 1/MPR/2003.

The Crescent Moon Party considers that the explanation of the article is unconstitutional as it seems to hinder the MPR from issuing a resolution, even though it has been stated in the PPP Law that the MPR Tap is one of the legal regulations.

Also read: Chairman of the MPR: Ideally the MPR should be returned to being the highest state institution

In his consideration, Constitutional Judge Wahiduddin Adams looked back at the constitutional amendments made from 1999 to 2002. Before the amendments, the People's Consultative Assembly (MPR) did have the authority to issue decrees. This authority cannot be separated from the MPR's position as the highest state institution, which is emphasized in the Explanation of the 1945 Constitution (before the amendments) that the highest state power is in the hands of the MPR. The MPR represents the sovereignty of the people as well as the embodiment of all Indonesian people. In relation to this, the MPR mandates the president to implement the outlines of the state's direction and other decisions issued in the form of MPR decrees.

After the amendment, this changed. Post-reform, there was a reorganization of state institutions with an emphasis on the supremacy of the constitution. The MPR (People's Consultative Assembly) no longer has the authority to issue resolutions. Constitutional Justice Arief Hidayat, while reading the considerations, revealed that the position of Tap MPR (Decree of the People's Consultative Assembly) in the legal structure of Indonesia had been removed in Law No. 10/2004 regarding the Formation of Legislation. However, Law No. 12/2011 reintroduced Tap MPR into the hierarchy of legislation in Article 7 Paragraph (1) letter b, along with its explanation.

Before the amendment, MPR did have the authority to issue decrees. This authority cannot be separated from the position of MPR as the highest state institution which is emphasized in the Explanation of UUD 1945 (before the amendment) which basically states that the highest state power is in the hands of MPR.

KOMPAS/WAWAN H PRABOWO

Retired Constitutional Judge Maria Farida Indrati (right) extends her congratulations to Enny Nurbaningsih who was recently sworn in as a constitutional judge by President Joko Widodo at the State Palace in Jakarta, on Tuesday, August 13, 2018. Enny has taken over Maria Farida's position in the Constitutional Court (MK) after her retirement on that day.

Legal uncertainty

Constitutional Judge Enny Nurbaningsih stated that the Constitutional Court cannot approve the request of the Crescent Star Party. If the request is approved, it will actually create legal uncertainty regarding which MPR Resolution is referred to in Article 7 paragraph (1) letter b of Law No. 12/2011.

"Without such an explanation, the MPR will factually appear to be an institution that is not on par with other state institutions, as it can issue resolutions that cannot be tested or reviewed by other constitutional institutions," said Enny.

Without such an explanation, the MPR would factually appear to be an institution that is not on par with other state institutions as it can issue decisions that cannot be tested or reviewed by other constitutional institutions.

As is known, the 1945 Constitution has regulated that the Supreme Court is authorized to review the constitutionality of regulations under the law, while the Constitutional Court reviews the constitutionality of statutory norms against the 1945 Constitution. However, the position of MPR's decision is between the 1945 Constitution and the law.

Apart from that, the system of legislative and constitutional regulations following the constitutional amendments has eliminated the MPR's authority to form and issue decrees. "Therefore, the MPR can no longer form MPR decisions that are regulatory in nature (regelingen)," stressed Enny.

KOMPAS/RONY ARIYANTO NUGROHO

Constitutional Justice Saldi Isra after responding to the summons of the Honorary Council of the Constitutional Court (MKMK) at Building 2 of the Constitutional Court, Jakarta, Wednesday (1/11/2023). Saldi Isra was summoned by the MKMK to undergo an examination regarding reports of ethical violations, namely taking a different attitude (dissenting opinion) at the decision hearing for Case Number 90/PUU-XXI/2023. Saldi Isra was the judge who disagreed with the decision in Case Number 90/PUU-XXI/2023 which was hammered by Chief Constitutional Court Anwar Usman.

Also read: MPR Ensures There Are No Constitutional Amendments

The MK did not mention at all the reasons for the Crescent Star Party asking the MK to declare that the MPR had the authority to issue decrees. In its petition, the Crescent and Star Party asked the question if the executive government was completely paralyzed, including the Minister of Home Affairs, Minister of Foreign Affairs and Minister of Defense (the triumvirate) was absent, which authority could answer/rescue this dangerous situation. The Crescent Star Party also asked the MK to declare that in a situation where the government is completely paralyzed, the MPR can provide a way out. However, the presumption of dangerous conditions was not mentioned at all in the Constitutional Court's decision.

In his dissenting opinion, Saldi Isra did not mention the reasons for the paralyzed government that the Crescent Star Party claims. He actually agreed to delete the Explanation to Article 7 Paragraph (1) letter b of Law No. 12/2011. He also believes that placing MPR decisions in the legislative hierarchy is not appropriate, let alone placing them above the law. According to him, the MPR Decree should be placed as a transitional provision in Law No. 12/2011 or placed parallel to the law. This is because the content material contained in the MPR Decree actually contains content material that is regulated in law.