LRWD I N D O N E S I A
Law Reform Weekly Digest
Edition 37/December/2014
In This Issue
Constitutional Court
“Your Weekly Updates on Indonesian Law Reform”
The Constitutional Court On President’s Decision On The Selection Committee Composition
House of
Representatives Government Administration Law: Limitation and
Protection towards
Government Official Actions Legal Policy
Which Agency Should Carry On The Duties of The Former National Law Commission?
Legal Policy
Which Agency Should Carry On The Duties of The Former National Law Commission?
The National Law Commission (KHN), which was established during the reign of President Abdurrahman Wahid through Presidential Decree No. 15 Year 2000, was officially dissolved through Presidential Regulation No. 176 Year 2014 on 4 December 2014. The National Law Commission was considered as one of 88 non-structural institutions that needed to be dissolved in order to increase the effectiveness and efficiency of government affairs. Back in 2011, the Minister of State A p p a r a t u s E m p owe r m e n t a n d B u r e a u c r a t i c R e f o r m , A n w a r Abubakar, opened the discourse towards the dissolution of KHN because he considered they displayed minimum performance. However, the discourse was rejected by Prof. J. E Sahetapy (KHN Chairman), who stated that since the commission was established, they already served their purposes by giving recommendations on significant legal reform issues such as the separation design of the military and police, the establishment of the Corruption Court, access to judicial transparency, and the President's annual speech on law issues.
The Commission’s tasks as listed in Presidential Decree No. 15 Year 2000 is to provide an opinion on the
request of the President about various policy and legal issues; also to assist the President in designing law reform plans. But, after the presidency of A b d u r r a h m a n W a h i d , t h e Commission’s recommendations are hardly being used. Moreover, task i m p l e m e n t a t i o n s f r o m T h e C o m m i s s i o n a r e c o n s i d e r e d overlapping with other agencies such as the Presidential Advisory Council (Wantimpres) and the Presidential Working Unit for Supervision and Control (Unit Kerja Presiden Pengawasan dan Pengendalian P4).
With the dissolution of the National Law Commission, their duties will be carried by the Ministry of Law and Human Rights. Within one year, the administrative transfer from the commission to the Ministry of Justice and Human Rights will be coordinated by the Ministry State Apparatus Empowerment and Bureaucratic Reform. The Minister of Justice and Human Rights should accurately decide which agency or unit in the government will carry the commission legacy to give recommendations to the President on law issues. Efficiency and effectiveness that become the b a s i s f o r t h e N a t i o n a l L a w Commission dissolution should not diminish the importance of their work. (ED)
Bill of Persons with Disabilities as Priority in 2015
Law Policy
Constitutional Court Judge
Selection Process: Appreciating
the Breakthrough
In the middle of the Regional Election Law drama last October, the House of Representatives have passed one strategic and important law that was missed from public attention, which is the Law Number 30 Year 2014 on Government Administration. The importance of the law lies in the fact that it regulates how government officials regulate and exercise their power as a bureaucrat. The law aims to limit and protect government officials in future misconducts.
The law limits the exercise of government official power, thus protects rights of citizens from abusive use of government official administrative power, while the protection means the government officials are protected from criminal prosecution and civil suit in exercising their power.
One of the most important features of the law is the limitation on the use of discretional power of government officials. Beforehand, the discretionary power of government officials is loosely interpreted.
In the law, discretionary power is clearly regulated and defined. Additionally, the law also provides certain mechanism to claim damage as result in the use of discretionary power. On the protection aspect, the law gives protection of government officials in making governmental decisions. The protection includes the decriminalization of administrative failure that result in state financial losses. The law also puts internal mechanism along with administrative court as institutions to determine the state losses and the element of abuse of power as opposed to criminal justice institution power in prosecuting the actions of government officials. This arrangement is in direct conflict with the Anti-Corruption Law, in the event that the law enforcement, i.e., the Corruption Eradication Commission (Komisi Pemberantasan Korupsi/KPK), consideras the maladministration to result in state losses as corruption cases need to be prosecuted. (GAT)
House of Representatives
Government Administration Law: Limitation and Protection towards Government Official Actions
House of Representatives
Bill of Persons with Disabilities as Priority in 2015
The House of Representatives (Dewan Perwakilan Rakyat/DPR) officially closed their first plenary session on 5 December 2014. The DPR has not released its National Legislation Program (Program Legislasi Nasional/ Prolegnas) yet, because they are still focused on internal arrangements, as well as establishing the internal regulation and filling structural office position. However, the House already decided on four bills becoming priorities to be ratified in early 2015, such as the Bill on Persons with Disabilities (RUU tentang Penyandang Disabilitas), Bill on Transportation (RUU tentang Transportasi), Bill on Architects (RUU tentang Arsitek), and Bill on the Ratification of Government Regulation in Lieu of the Law on Head of Local Government Elections (RUU tentang Pengesahan Perpu tentang Pemilihan Gubernur, Bupati, dan Walikota). These four bills are considered the most complete and ready to discussed as soon as possible.
The Bill on Persons with Disabilities was originally pushed by the civil society to be ratified by the House. During the last plenary session of the House’s 2009-2014 period, the bill was already ratified as an initiative bill from the House but the process did not continue since their tenure was over. The main idea of the bill is a paradigm shift in recognizing a person’s with disabilities his or her rights; from charity-based to rights-based. The bill arranges that persons with disabilities are equal with the other citizens, especially on fulfillment of their rights. The Bill on Persons with Disabilities consists of more than 200 articles since the bill regulates multi-sector issues such as transportation, education, health, public service, etc.
If the bill is passed, it will become a big achievement for the House of Representatives on their starting period. At least, they will get high appreciation from the constituents from the disabled community. (FN)
The Constitutional Court (Mahkamah Konstitusi/MK) has sent President Joko Widodo a letter of objection to the appointment of the constitutional judge candidate selection committee. Under the constitution, the President, the Supreme Court, and the House of Representatives each proposed three constitutional judges to fill a total of nine judges. The selection committee, formed by the Presidential Decree No. 51 Year 2014, was assigned to find a replacement for Chief Justice Hamdan Zoelva, who is ending his tenure soon. The Constitutional Court, through the Secretary-General of the Court, expressed its disapproval of two names in the selection committee; a constitutional law expert Refly Harun and advocate Dr. Todung Mulya Lubis. The Court pondered they potentially have conflict of interest with the judges candidate. The Court argued that Refly and Todung have often been involved in many cases in the MK, especially in representing judicial review applicants. Conflicts of interest, the Court predicted, would arise if, in the future, the elected judge handle cases involving Refly or Todung.
There are two issues that arose after the objection letter was sent to the president. The first issue is relating to the relationship between the MK and the president. Under the Constitution and Law No. 24 Year 2003 on the Constitutional Court, the MK only has five authorities: to review the constitutionality of the Law, to resolve dispute on election results, to adjudicate dispute between state institutions, to
decide dissolution of political parties, and to decide a parliament’s recommendation on the impeachment.
Thus, the MK is not mandated authority to convey opinions to the president, regardless of its form.
Beside it is not its authority, delivering opinions to the president could decrease the dignity of the MK, if the president ignores the MK opinions or objections.
The second issue is regarding potential conflicts of interest, which is used by the MK to reject Refly and Todung in the committee membership. The MK reasoned that both Refly and Todung have often become litigants in the MK trial. However, this reason is questionable because every Indonesian citizen, regardless of his or her profession, has the right to lodge judicial review case to the MK, as provided in Article 51 paragraph (1) of the Law on the Constitutional Court. In accordance with this provision, all members of the selection committee, not only Refly and Todung, have the same potential conflicts of interest, as they might become litigants in the MK in the future.
As a judiciary body, the MK should be able to maintain its authority and dignity by using the Court decision as the only medium to deliver its official statements.
Additionally, as an institution that upholds the values of independence and integrity, the MK must also respect the independence of the other branches of government and not interfere in other institutions’
authority. (RA)
The Constitutional Court On President’s Decision On The Selection Committee Composition
Constitutional Court
Law Policy
Constitutional Court Judge Selection Process:
Appreciating the Breakthrough
President Joko Widodo established a selection committee consisting of 7 prominent figures in law, which are Prof. Saldi Isra (chairman), Refli Harun, S.H, LL.M (secretary), Prof. Maruarar Siahaan, Prof.
Harjono, Prof. Todung Mulya Lubis, Prof. Widodo Ekatjahjana, and Prof. Satya Arinanto. The selection committee should propose two or three candidates to President Joko Widodo. One of them will be chosen as the Constitutional Court Judge to replace Hamdan Zoelva.
On 11—17 December 2014, the Selection Committee has opened the registration. There were 15 applicants, which were I Dewa Gede Palguna, Imam Anshori Saleh, Lazarus Tri Setyawanta Rabala, Yuliandri, Indra Perwira, Fontian Munzil, Sugianto, Dhanang Widjiawan, Krisnadi Nasution, Hotman Sitorus, Aidul Fitriciada Azhari, Franz Astani, Erwin Owan Hermansyah Muhammad Muslih, and Hamdan Zoelva. Five days later, on 22—23 December, the selection committee held a fit and proper test and also selected the 5 best candidates who qualified to the next stage, which are I Dewa Gede Palguna, Imam
Anshori Saleh, Yuliandri, Aidul Fitriaciada Azhari, and Indra Perwira.
Until now, there were several Selection Committee breakthroughs that should be appreciated. First, in the registration stage, the selection committee opened for the public to enroll or propose candidates. Later, the selection committee will contact the candidates to ask their readiness. This mechanism opened up the possibility for more candidates to be recruited. Second, the selection committee held the fit and proper test openly. This occasion brings an opportunity to the public in attending and asking the candidates. The Selection Committee also showed a brief decision to current Chairman of Constitutional Court, Hamdan Zoelva, who was also registered as a candidate. Hamdan chose not to attend the fit and proper test. The consistency to uphold the principles of transparency and participation by the selection committee is still in demand. Two stages that still await are the medical test and expert panel interview on 30 December 2014. (MS)
