Obituary
In Memoriam: Prof. Dr. Harun Al Rasyid, S.H.
Prof. Dr. Harun Al Rasyid, S.H., has passed away on Tuesday, 12 August 2014. At the age of 84, the late Professor Harun is a staunch figure of Indonesian Constitutional Law. Throughout his life, Prof. Harun was a man who devoted himself to the scientific profession of law, particularly in the field of constitutional law. Together with Prof. Ismail Sunny and Prof. Padmo Wahjono, he was a direct student of Prof. Djokosoetono, the first Dean of the Faculty of Law and Social Sciences of the University of Indonesia as well as the pioneer of Indonesian constitutional law.
The footsteps of Prof. Harun in the development of Indonesian constitutional law are not only limited to scholarly study, but also play a major role in constitutional practice. A stroke of Prof. Harun’s trace as a practitioner can be seen from his role as Vice Chairman of the General Elections Commission of the 1999 Elections. On a different occasion, he also became the legal adviser of former President Gus Dur when faced with swift demands of the impeachment process.
As a scientist highly respected by many circles, Prof. Harun remains a modest figure, upholding principles, and with a fair attitude. This simplicity and principle of modesty could be seen when he refused the privilege of a mobile telephone and official vehicle while serving as Commissioner at the General Elections Commission. Seeing the country’s economic state due to the crisis at the time, he would only accept half the amount of the monthly allowance.
His fair attitude was also shown during the 1945 Constitution Amendment process entered its final stage in 2002. Even though he called the process “chaotic” since it only focused on article changes instead of systematic changes, he expressed his disapproval towards the anti-amendment stance. According to him, the amendment process which already begun should be continued; on the contrary, the rejection position should have been stated since the beginning, not while the amendment was underway.
Prof. Harun’s contact with PSHK has also been considered deep and special. His collaboration with PSHK in the research on the bicameral system produced the book Semua Harus Terwakili (All Must Be Represented) (2002), an earlier publication of PSHK that played a role in the recommendation of the House of Regional Representatives formation. That collaboration passed on profound thoughts for PSHK in observing the relationship and function of state institutions in the Indonesian constitutional structure.
Farewell, Prof. Harun; may all his work throughout his lifetime become good deeds for the afterlife, and his ideas and thoughts remain as a solid foundation towards the development of Indonesian constitutional law. (GAT, RA)
Legal Policy
Regulatory Problems Regarding Village Regulations on Law No. 6 Year 2014
Law No. 6 Year 2014 gives authority towards Villages to organize and manage governmental concerns, interests of the local community, rights of origin, and traditional rights developing in the area. This makes Villages possess sovereignty over its people and territory within the State of Indonesia. Therefore, Law No. 6 Year 2014 regulates Village government apparatus, Village budget, up until authority in establishing Village Regulations.
Village authority on the scope of regulating and supervision mechanism, also on regulation annulment, should be clear and firm. Main concerns on regulations regarding Village Regulations in the Law No. 6 Year 2014 are on the materials and annulment mechanisms.
Law No. 6 Year 2014 does not regulate Village Regulation content materials; thus making it unclear what the futures Village Regulations should contain. It is a potential problem, especially on determining whether Village Regulations can regulate on materials that were not instructed in higher-level regulations. For example; Law No. 12 Year 2011 regulates that local regulations content is for implementing local autonomy and co-administration; accommodating special conditions of local areas, or further elaboration of higher-level laws and regulations.
The second regulatory problem from the Village Regulation is the inclusion of provisions regarding annulments of Village Regulations in the explanation section. Such important ruling should be contained not in the explanation section but rather in the regulation part instead Annulments provision regulated in the explanation section of Article 115 letter e, stated the Local Government has the duty to supervise Village Regulations. The provisions part from the explanation also mentions that the supervision referred also includes annulments. If we refer to legislative drafting, the supervision mechanism and annulments are two different subjects, and each has their own consequences. In addition, both supervision and annulments should be clearly regulated in order to create a clear and firm mechanism. Also the regulation regarding annulments of Village Regulations in the explanation section from Law No. 6 Year 2014 makes the provision in Article 115 seem ambiguous, thus not fulfilling the clarity of formulation principle, as stated in Article 5 letter f of Law No. 12 Year 2011. (FN)
Legal Policy
Government Regulation No. 48/2014: A New Rule for Future Brides and Grooms
On June 2014, Government Regulation No. 48 Year 2014 on the Amendment of Government Regulation No. 47 Year 2007 on the Tariffs on Types of Non-Tax Revenues Prevailing at the Ministry of Religion was issued. An interesting alteration within the new Government Regulation is on the tariff on getting married and reconciling. Article 6 divides the tariff of getting married into two, based on day and location. Should anyone decide to marry or reconcile at the District Office of Religious Affairs (Kantor Urusan Agama Kecamatan/KUA Kecamatan) and on a workday, it would be free of charge. However, if they were to be done outside the KUA Kecamatan and not on a work day, the cost would be Rp. 600.000,-. For the Head of the KUA or the Chieftain who is to marry the couple, an allowance will be given in accordance with the determined typology and budgeted by the Ministry of Religion.
The existence of this regulation provides legal certainty on official tariffs for getting married which has been determined by the State. During this time, the official tariff has been unclear. Moreover, the state budget for the KUA and Chieftains were miniscule. This situation caused the would-be bride and groom to have to pay a very expensive fee in order to marry since it was standardized by the Chieftain or the Head of the KUA. Through Government Regulation No. 48 Year 2014, gratification or corruption in the KUA hopefully will be prevented, as long as the socialization is done on a massive scale. (MFA)
Legal Policy
President Establishes Selection Committee toReplace KPK Chairman
Busyro Muqoddas, one of the Corruption Eradication Commission’s (Komisi Pemberantasan Korupsi/KPK) Chairmen is scheduled to retire at the end of this year. Normally, the KPK Chairmen are replaced after five years term simultaneously. However, Busyro’s appointment itself was to replace Antasari Azhar, former KPK Head Chairman who has been convicted for murder. Therefore, Busyro’s end of tenure does not coincide with other KPK Chairman’s tenure, which will end next year.
The Selection Committee for a new commissioner is part of the selection procedure mechanism stipulated in Article 30 paragraph 2 of Law No. 30 Year 2002 on the Corruption Eradication Commission. The current selection committee is based on Presidential Decree No. 29 Year 2014. There are three important aspects that need to be carefully observed in the Selection Committee and its work in order to produce good quality KPK Chairman candidates. Those components are: first, the composition of committee members; second,the selection mechanism, and; third, the process outcome. In the current selection committee, all of the names have good reputations and integrity; a composition comprised of academics, ex-bureaucrats and former KPK Chairmen. One notable point from the composition of the selection committee is that there are no politicians, except for the minister himself who acts as ex-officio. Considering the selection committee members, the selection process is predicted to be transparent and participative. However, like any other selection process involving the House, transactional politics aspect is strong. To minimize the political aspect, it is importantly strategic for civil societies to push the process of the KPK Chairman Selection to adopt the Supreme Court candidate selection process, where the House is limited only to approve the candidate put forward by selection committee.. (GAT)
Constitutional Court
Judicial Review of the MD3 Law
After the enactment of the Law on the People’s Consultative Assembly, House of Representatives, House of Regional Representatives, and Regional House of Representatives (MPR, DPR, DPD, and DPRD/MD3 Law), the Indonesian Democratic Party Struggle (Partai Demokrasi Indonesia Perjuangan/PDIP) and Indonesia Criminal Justice Reform (ICJR) filed a judicial review to the Constitutional Court. PDIP questions the provisions in the MD3 Law on regulating House of Representatives’ leadership selection mechanism (Article 84) and their working units. Meanwhile, ICJR is contesting Article 245 of the MD3 Law on the permission requirements from the Constitutional Court towards summoning and investigating House of Representatives members regarding criminal offenses.
There are also several parties who still plan on filing for a judicial review towards the MD3 Law but have yet to apply. These parties among others are the House of Regional Representatives (regarding authority and institutional relations with the House of Representatives), Jakarta Legal Aid (Lembaga Bantuan Hukum Jakarta/LBH Jakarta) (regarding the exercise of immunity rights), the Indonesian Women’s Coalition (Koalisi Perempuan Indonesia/KPI) (regarding the representation of women in the composition of working unit leaderships), and the Center for Regional Studies and Information (Pusat Telaah dan Informasi Regional – Pattiro) (on the nature of closed meetings, the erasure of the gratification clause, and the Regional House of Representatives examination permission procedure.
Through the new MD3 Law, the House of Representatives extend their authority without providing any room for supervision. In addition to that, there seems to be no sight of the House’s commitment towards being transparent and accountable. In the MD3 Law, the House has erased the obligation of political parties to conduct performance evaluations towards their members and to report them to the public. Beforehand, this was regulated in Article 80 paragraph (2) of the MD3 Law. The obligation of the House in publicly reporting its budget management (regulated beforehand in Article 73 paragraph 5 of Law No. 27 Year 2009) has also been erased in the latest installment of the MD3 Law. The many number of parties who are filing for a judicial review seems to illustrate the many issues within the new MD3 Law material. (RR)
Constitutional Court
Legal and Political Challenges towards Joko Widodo’s Victory in the Presidential Election
The General Elections Commission (Komisi Pemilihan Umum/KPU) has announced the Joko Widodo-Jusuf Kalla pair as the elected president and vice president of Indonesia’s 2014 election. The Presidential Election Act allows those who feel aggrieved to dispute the results. In late July 2014, the Prabowo Subianto-Hatta Rajasa pair filed a case of Presidential Election Result Dispute to the Constitutional Court. At the first session of the trial on 6 August 2014, the Prabowo-Hatta team claimed that they have numbers of witnesses and evidences showing structured, systematic, and massive frauds intended to win the Jokowi-Kalla pair. Under the Presidential Election Act, the Constitutional Court must decide the case no later than 14 days from the first day of the trial on 22 August 2014. Regarding this, Joko Widodo, who is formally still serving as Governor of Jakarta, refused to resign from the current position until the Constitutional Court hands down its decision.
Another legal process the KPU has to deal with is the complaint of alleged violation towards the code of ethics filed by the Prabowo-Hatta team. The KPU faced at least seven complaints in a trial held by the Election Organizer Honorary Council (Dewan Kehormatan Penyelenggara Pemilu/DKPP). Allegations of ethical violation accused to the KPU as organizer of the presidential election are, among others, illegally opening the ballot box. In contrast to the trial at the Constitutional Court, the DKPP’s trial is not related to the election results, but rather to the alleged violation of the code of ethics committed by entities of election organizers. Thus, any decision handed down by the DKPP will not affect the election results.
Challenges towards the election results and performance of the KPU also arise from the parliament. The coalition of Prabowo-Hatta political parties’ supporters in the House of Representatives agreed to encourage the establishment of a special committee to discuss alleged electoral violations and frauds occurring in many regions in Indonesia. Chairman of the House of Representatives Commission on Government and Regional Autonomy, Agun Gunanjar Sudarsa, said he will submit a proposal to the House of Representatives’ chairs to summon commissioners of the KPU and the Electoral Supervisory Body (Badan Pengawas Pemilihan Umum/Bawaslu), despite the summon hasn’t been made until today. A number of legal and political commentators argue that establishing such a committee would not be effective as the House of Representatives’ period of office is only one month left. Although the Parliament Act as well as the Standing Orders allows the establishment of a special committee, the move was believed only to hold Jokowi-Kalla, not to improve the implementation of the next presidential election. (RA)