COM 03/2016

The Authority and Position of the People’s Consultative Assembly within the Constitutional Order of the Republic of Indonesia

Widodo Ekatjahjana, Director General of Legislation, Ministry of Law and Human Rights, Republic of Indonesia

Gautama Budi Arundhati, Lecturer at the Faculty of Law, University of Jember, and Researcher of the Centre of Excellence of Pancasila and Constitution, University of Jember

Introduction

The People’s Consultative Assembly or Majelis Permusyawaratan Rakyat (MPR) is one of the state bodies in the Indonesian constitutional system. The MPR consists of members of the House of Repre- sentatives or Dewan Perwakilan Rakyat (DPR) and members of the House of Regional Representatives or Dewan Perwakilan Daerah (DPD). The structure of the MPR is different from the Congress of the United States of America, which consists of the Sen- ate and the House of Representatives[1]. It can be said that their respective structures are obviously different as the MPR does not sit in joint sessions such as the Congress of the United States of America. The MPR is a more independent body than the U.S. Congress due to the differing membership structure. The consequences are unique and distinctive.

In fact, some problems and open questions exist regarding the position and structure of the MPR, because there are no detailed provisions in this regard in the 1945 Indonesian Constitution (Amended).

The Authority of the MPR

It is important to observe the constitution itself be- fore scrutinizing how it is interpreted and how it works. Since 18 August 1945, Indonesia has had four kinds of constitutions in the five periods as follows:

1. the first period, the 1945 Constitution between 18 August 1945 and 27 December 1949;
2. the second period, the 1949 Constitution of the Federal?Republic of Indonesia between 27 December 1949 and 17 August 1950;
3. the third period, the 1950 Interim Constitution, between 17 August 1950 and 5 July 1959;
4. the fourth period, back to 1945 Constitution be- tween 5 July 1959 and 21 October 1999.

In the period between 1999 and 2002, the 1945 Constitution had been amended by MPR in the Annual General Session in four sessions:

1. The first amendment was done between 14 and 21 October 1999;[2]
2. The second amendment was done between 7 and 18 August 2000;
3. The third amendment was done between 1 and 9 November 2001;
4. The fourth amendment was done between 1 and 11 August 2002.

Each time the result of the constitutional amendment by the MPR is referred to as the 1945 Constitution (Amended).[3]

In order to reinforce the democratic system in Indonesia post Soeharto (also known as the New Or- der Regime)[4] the constitution was changed. The fall of the Soeharto regime in 1998 is the beginning of the democratization era in Indonesia. Before 1999, Indonesia was reigned by the 1945 Constitution (unamended), and after 2002, Indonesia was reigned by the fully amended Constitution. Both the 1945 Constitution (unamended) and the 1945 Constitution (amended) have similarities. The similarities of the nomenclature between the Constitutions are only based on the unchanged preamble that contained Pancasila as the state ideology, yet there are many changes in the arrangement of state bodies and the structural system of governance.

The dynamic change of the Indonesian constitution raises the unanswered question, whether all of the state bodies have an equal position or not, or whether the Indonesian Constitutional reform leads to a shift in the position of the MPR. That is one of the most important issues in Indonesia, because the MPR is one of the oldest state institutions which has the important function to offer a forum for the people’s voice. The concept behind the establishment of the MPR is an integrated system which can accomo- date the people’s as well as the rulers’ voice.

To scrutinize how the constitution works especially in the matter of the position of the MPR, one should pay attention to the constitution clauses in accordance with their constitutional context. Article 2 Paragraph (1) 1945 Indonesian Constitution (amended) states that “Majelis Permusyawaratan Rakyat   (People’s   Consultative   Assembly/MPR) shall consist of members of Dewan  Perwakilan Rakyat (House of Representatives/DPR) and members of Dewan Perwakilan Daerah (Regional House of Representatives/DPD) elected through general elections and to be further regulated by law.” Consequently, there are different sources of membership of the MPR. The members of the DPR and DPD, which are elected through general elections for this specific context and purpose, become the members of the MPR in some specific areas. Regarding the position of the MPR in accordance with its areas of authority, the constitutional text was changed. Article 1 Para- graph (2) of the 1945 Constitution (former) stated “Sovereignty is in the hands of the people, and per- formed entirely by The People’s Consultative Assembly”, and it was changed into: “Sovereignty belongs to the people and is implemented in accordance with the Constitution” in the same article.

Changes in the provision of Article 1 paragraph (2) of the 1945 Constitution are generally assumed to have some implications on the MPR’s position, duties and authority. It is considered that the MPR no longer serves as the highest constitutional body, because it has been replaced by the people them- selves. Article 3 of the 1945 Constitution states that the MPR shall have the authority to amend and stipulate the Constitution;[5] the MPR shall inaugurate the President and/or the Vice President;[6] the MPR may only dismiss the President and/or the Vice President during his/her respective term of office in accordance with the Constitution.[7]

These authorities of the MPR can be qualified as the core of the MPR power. It therefore possesses an authority that is distinctive from the other state bodies. The MPR also has the authority to issue decrees. MPR Decrees are the legal products of the MPR that are, from a hierarchic point of view, under the Constitution but above the other laws. The hierarchic position of the decree in terms of Article 7 Paragraph (1) Chapter III regarding the types, hierarchy, content and materials of legislation, Law Number 12 of 2011 Concerning the Forming of Laws in the matter of type and hierarchy of legislation can be described as follows:

1. Constitution of the Republic of Indonesia Year 1945;
2. People’s Consultative Assembly Decree;
3. Law/Government Regulation in Lieu of Law;
4. Government Regulations;
5. Presidential Decree;
6. Provincial Regulation; and
7. Regulation Regency/City.

The hierarchic legal order aforementioned corresponds to the legal power of the respective legislation.

The MPR also has the authority to issue ‘Pokok Haluan Penyelenggaraan Negara (PHPN)’ or the Guideline of Governance, pursuant to Articles 153 and 154 of the MPR Regulation Number 1 of 2014 regarding the rules of the MPR. The MPR has the task to respect political and regional aspirations in the course of the preparation of the Guideline of Governance[8]. For the preparation of the guideline, the public has the right to submit proposals to the MPR[9].  The MPR collects the aspirations of society and the regions as material for the preparation of the Guidline of Governance with the support of the Board of Assessment (Badan Pengkajian),[10] and sets a Joint Meeting for working out further provisions on the procedures for receiving and preparing aspirations[11]. The MPR has the task to present the guidline to the state bodies which possess the relevant authority given by the Constitution[12]. The Guideline should be performed by the state bodies in accordance with their powers, duties and functions.[13]

In this context, the Guideline of Governance has some features, such as:

1. The PHPN, as the embodiment of the MPR, is not only binding for the President and the parliamentary system, but also for all state bodies which have been granted any authority by the 1945 Constitution in accordance with the powers, duties and function.
2. The guideline itself serves as a blueprint to govern the state, a task that has to be fulfilled by all state bodies that were granted power by the Constitution.

There is a consistency in terms of the commitment to strengthen the presidential system of government[14], due to the position of the Guideline, PHPN is not a package of measures to be implemented solely by the executive within the parliamentary system of government. The Guidance of Governance is further specified by the State Bodies Performance Re- port pursuant to the Article 155 MPR Regulation Number 1 of 2014 regarding the Rules of the MPR, Paragraph (1), which states that for maintaining and strengthening the sovereignty of the people, the MPR may hold its annual session between 14th of August and 16th of August each year, which is pre- ceded by the submission of the Performance Report of the Assembly and which is closed by the President[15], in order to assess the performance of the state bodies in the context of the implementation of the 1945 Constitution[16]. The aforementioned state bodies shall include the MPR, DPR, DPD, the President, the Supreme Court, the Constitutional Court, the State Auditor, and the Judicial Commission[17]. The performance report (accountability report) of the state bodies on the annual MPR session is a con- sequence of the Guideline of Governance. There- fore, it is natural that the MPR has the responsibility to conduct the session. The Guidance of Governance has to be executed by all state bodies that have been given any state authority by the Constitution, including the MPR itself.

The Consequences of the MPR Authority

There are some consequences based on the powers and the position of the MPR. Article 3 of the 1945 Constitution states that the MPR shall have the au- thority to amend and stipulate the Constitution, shall inaugurate the President and/or the Vice President, and may only dismiss the President and/or the Vice President during his/her respective term of office in accordance with the Constitution, however, undoubtly the MPR remains the highest state body, as this does not contradict the principle of popular sovereignty:

1. The sovereignty of the people is still retained, the people is still in the highest position of the country, yet the implementation of it is only governed by the Constitution;
2. The 1945 Constitution (amended) is the supreme law of the land that arranges the way how the imple- mentation of the sovereignty of the people is executed;
3. The Constitution as the supreme law of the land is made by the MPR, the state body that is mandat- ed by the highest authority, the people of Indonesia, through the constitution.

Based on the aforementioned terms, the highest law should be made by the highest authority. The MPR is the one and only state body that has those qualifications. The undisputable position of the MPR can be clarified in the terms of Article 4 of MPR Regulation Number 1 of 2014 regarding the rules of the MPR, which states explicitly: “The MPR as a consultative institution should have the highest authority”. The recognition of the MPR as the highest authority should usually not result in any problems as the MPR should not exercise its authority excessively due to the following reasons. First, the Constitution limits the MPR. Popular sovereignty is supreme. Thus, the MPR does not replace the people’s sovereignty, but the people’s sovereignty should be reflected in the MPR competences. The MPR competences are entrenched in its tasks which are to implement the Constitution and also fulfill the popular and regional expectations.

Secondly, the MPR Decree is the legal product of the MPR. It is situated under the Constitution but above any other laws. It indicates that the MPR has the highest position amongst the other state bodies. It has a salient position, higher than any other state body or the combined state bodies.

Thirdly, regarding the Guidance of Governance, this guidance should be related to the position of the MPR. The MPR can be qualified as the highest ranked state body, because it plays the central part in the governmental process. The guidance functions as a bridge between state ideology (Pancasila), the objectives of the state and also the people’s expectation. This guidance can therefore also be classified as the governmental road map. For further explanation: Pancasila as the state ideology is the foundation of the state, it is the foundation of life of the nation.

This means that every move of an Indonesian must always be guided by the precepts contained in the Pancasila. At the same time, all acts of citizens and officials should be based on the law, whether written or unwritten law that is based on the state ideology[18]. In order to realize the objective of the state, Indonesia needs to agree on a road map, which has been forgotten, so that Pancasila (the ideology of the nation) will not halt at the abstract level.[19]

But, it must be translated into valid law. Legal validity can be reached at least by two alternatives: It can be poured into the substance of the law, through a constitutional amendment or the convention by mutual consent of the state institutions, or it can be established by the Assembly itself as substantive MPR regulations.[20]

The best way of implementation in Indonesia nowadays is the constitutional convention. The convention, generally speaking, is formed based on the constitutional practices that are considered binding and legal. In a comparative perspective, international customary law is formed if it has been through certain stages, both the duration of the practice and the number of countries that practice it.

However, it must be noticed that customary international law is formed in the practice of inter-state relations which incidentally have a parallel position (coordinate). It will therefore be different from the constitutional convention in Indonesia which is formed by the practice of governing the state by the various branches of sovereign power.

The function of the constitutional convention is to provide flexibility to the Constitution itself, the Constitution should be a living document. The MPR as the state body that creates the Constitution can also provide constitutional interpretation through its practices to run the state based on consensus. This has been done through some of the MPR legislation and it has been termed ‘constitution in practice’. Constitutional conventions can also fill legal gaps of the Constitution. Though the Constitution itself ide- ally embraces all questions, as a matter of fact there are limitation clauses in it and, in some parts, it is too general to be implemented. Constitutional conventions also have the striking function of extending the constitutional norms by constitutional practices in a justified manner.

The requirement to reach a consensus needs to be observed. The consensus can be reached only if a relationship between the political suprastructure and the political infrastructure can be established.

The relationship between the political suprastructure and the political infrastructure, i.e. the interaction between the government and the DPR and the government and the MPR is significant in order to establish the structure of the governmental system. The establishment of the governmental system can- not be separated from the influence of the government (as the superstructure) and the political parties (as the infrastructure) in the DPR and the MPR. It can be seen that in the time before October 19 of 1999 or prior to the constitutional amendment, the MPR had the position as the highest institution.[21]

The Existing Problems on the Issues of the Law Making Power

There are some unexpected consequences regard- ing the vagueness of the MPR’s position which can be seen in the law making power. The MPR has the power to create constitutions, but if one looks at how the MPR exercises its power based on its position, it becomes a problematic issue. First, regarding the MPR position, if there is no clear distinction in the classification between the DPR, DPD and MPR, this could result in problems. This falls within the con- text of the joint session as the MPR is the gathering of both DPR and DPD members. Consequently, the MPR’s position is equal to the DPR’s and DPD’s position. Both the DPR and the DPD have their own members while the MPR does not have any members itself, but its members come from the DPR and the DPD

If it is assumed that the MPR has an equal power with the DPR and the DPD, the institution that has a similar level to the president and the supreme court as well as the constitutional court will be able to establish the constitution. It can also be compared to the regular law making procedure which involves the President representing the executive branch. So, three of the five state institutions of the executive and legislative branch of the government make reg- ular law. Article 20 of the Constitution states:

(1)             The House of People’s Representatives shall hold the power to make laws.[22]

(2)             Each bill shall be discussed by the House of People’s Representatives and the President for joint approval.[23]

(3)             If the bill fails to receive a joint approval, the bill may not be resubmitted in a meeting of the House of People’s Representatives.[24]

(4)             The President shall ratify a jointly approved bill to be law.[25]

(5)             In case the jointly approved bill is not ratified by the President within thirty days as of approval of the bill, the bill shall be lawful to be law and enacted.[26]

Then, Article 22D states:

(1)             The Regional House of Representatives can submit to the House of People’s Representatives a bill relating to regional autonomy, central and regional relationship, formation and development and merger of regions, management of natural resources and other economic resources, and those relating to proportional budget.[27]

(2)             The Regional House of Representatives shall also discuss a bill relating to regional autonomy, central and regional relationship, formation and development and merger of regions, management of natural resources and other economic resources, and those relating to proportional budget; and give considerations to the House of People’s Representative on bills relating to national budget and taxes, education, and religion.[28]

(3)             The Regional House of Representatives can supervise and implement laws of: regional autonomy, central and regional relationship, management of natural resources and other economic resources, implementation of national budget, taxes, education, and religion and submit the supervisory results to the House of People’s Representative for follow-up.[29]

The last one, Article 5 states:

(1)             The President shall be entitled to submit a bill to the House of People’s Representatives.[30] Consequently, the process of constitutional framing only involves two constitutional bodies, whereas regular law is made by three constitutional bodies.

The Role of the Constitutional Court

The Constitutional Court denies the supreme position of the MPR. In the Constitutional Court Regulation Number: 06/PMI/2005 on the Guidelines on the Proceedings of Judicial Review, there is no recognition of the existence of the MPR as the Constitution maker. The regulation only recognises the existence of the President, the DPR and the DPD in this regard. Firstly, this can be proved by Article 25 which states that a information from the President is an official governmental statement either orally or in written form, on the subject of a petition as the result of the coordination with a Minister and/or an Institution/Agency related to the government. Secondly, under Article 26 of the guideline, it states that a information from the DPR is an official statement either orally or in written form that contains the facts that occurred during the discussion and/or minutes relating to the subject matter. Thirdly, Article 27 of the guideline states that in the matters of law review, when the relating law in its formation process involved the role of the DPD, the Court must hear and/ or request the information from the DPD. If the substance of the contested law relates to the interests of a region, however, in its formation process it did not involve the DPD, the Court may still hear and/or request the information from the DPD. The Council also may become a party to the petition for legislation. There is no recognition and involvement of the MPR as the maker of the constitution. It expresses the MPR’s lack of legal personality.

The Constitutional Court Regulation Number: 06/PMI/2005 on Guidelines on the Proceedings of Judicial Review is made by the Constitutional Court itself. The rationale why the MPR is not involved in this issue is: The MPR as an institution for political consultation with the people has the function of collecting and distributing the aspirations of the people to be poured into the formulation of basic le- gal norms in the constitution. After these norms have been established in the constitution, the Court has the role as the guardian of it and also as its interpreter[31]. But it should be taken into account that the implementation of the constitution can be problematic because of its lack of legal certainty.[32]

It can be assumed that a clear description of an authority’s powers and of its boundaries, as well as the legality of the laws can lead to the transparancy and accountability of the institution. A government or organization that performs its tasks in a transparent and accountable way will earn the trust and sup- port of the whole society.

Conclusion

The growing complexity of the Indonesian govern- mental system that is inevitably influenced by the raise of various popular expectations, the  political dynamic, and the ideological value that is entrenched in the Indonesian culture, needs to be well arranged in the expression of the political will. The determination and recognition of the position of the MPR is the continuation of politics in another form. The state bodies should act in a concerted manner when acting within the established system based on the political will. Conventions are the most plausible measures to do so, except when the Constitution provides otherwise. Consequently, the absence of concerted practices of state bodies that could result in a consensus recognising the MPR as the highest State Body amongst the other State Bodies leads to a lack of capacity of the MPR and will lead to a con- fused governmental system. Now it is time for the state to take the role, the role not only for the MPR but for all state institutions (executive, legislative and judicial). Because it can only be realized if the actors have the passion to realise the objectives on which the Indonesian state was founded.[33] It needs a fair order in which the compliance is not entirely handed over to the society, but should also be implemented and enforced by the public authorities whose existence and power is accepted by society.[34]

[1] Section 1 of the Constitution of the United States of America states “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of Senate and House of Representatives.

[2] There is no official and equal nomenclature in order to distinguish the old 1945 Constitution and the new 1945 Constitution in English, except in their official nomenclature in Indonesian.

[3] The nomenclature of the amended one is Undang-Undang Dasar Negara Republik Indonesia Tahun 1945.

[4] General Soeharto had been the President of the Republic of Indonesia from 1968 to 1998.

[5] Based on the third amendment which was done between 1 and 9 November 2001.

[6] Based on the third amendment which was done between 1 and 9 November 2001 and the fourth amendment which was done between 1 and 11 August 2002.

[7] Ibid.

[8] MPR Rule Number 1 of 2014 regarding rules of the MPR, Article 153 Paragraph (1).

[9] Ibid Art. 153 Para. (2).

[10]Ibid Art. 153 Paras. (3)& (4).

[11] Ibid Art. 153 Para. (5).

[12] Ibid Art. 154 Para (1).

[13] Ibid Art. 154 Para (2).

[14] Ibid Art. 154 Para (3).

[15] MPR Regulation Number 1 of 2014 regarding rules of MPR, Article 153 Paragraph (3) states:

the speech by the President in order to report the performance on the 16th (sixteenth) of August is also a Presidential speech in the context of the anniversary of the independence of the Republic of Indonesia.

[16] Ibid Art. 153 Para (1).

[17] Ibid Art. 153 Para (2).

[18] See Sri Soemantri, Hukum Tata Negara Indonesia, Pemikiran dan Pandangan, Bandung: ROSDA, 2014, p. 336.

[19] Sulastomo, Cita-cita Negara Pancasila, Redupnya Pancasila Hilangnya Jati Diri Bangs,.Buku Kompas, 2014, p. 9.

[20] Widodo Ekatjahjana, Negara Hukum, Konstitusi dan Demokrasi, Dinamika dalam Penyelenggaraan Sistem Ketatanegaraan Republik Indonesia, UPT Penerbitan Universitas Jembet, Puskapsi FH UNEJ and Puskaji MPR,

2015, p. 253.

[21] See Sri Soemantri, Hukum Tata Negara Indonesia, Pemikiran dan Pandangan, Bandung: ROSDA, 2014, p. 141.

[22]The first amendment which was done between 14 and 21 October 1999.

[23] Ibid.

[24] Ibid.

[25] Ibid.

[26] 26 The second amendment which was done between 7 and 18 August 2000.

[27] The third amendment which was done between 1 and 9 November 2001.

[28] Ibid.

[29] Ibid.

[30] The first amendment which was done between 14 and 21 October 1999

[31] Jimly Asshidiqie, Sengketa Kewenangan Antar Lembaga Negara, Konstitusi Press Jakarta, 2005, p. 11.

[32] See Penny Kusumastuti Lukito, Membumikan Transparansi dan Akuntabilitas Kinerja Sektor Publik: Tantangan Berdemokrasi Ke Depan, Jakarta: Grasindo, 2014, p. 2.

[33] Sulastomo, Cita-cita Negara Pancasila, Redupnya Pancasila Hilangnya Jati Diri Bangsa.Kompas 2014, P.42.

[34] Bernard Arief Sidharta, Ilmu Hukum Indonesia, Upaya Pengembangan Ilmu Hukum Sistematik Yang Responsif Terhadap Perubahan Masyarakat, Yogyakarta: Genta Publishing, 2013, p. 23.