Law Reform Weekly Digest – your weekly updates on Indonesian law reform
House of Representatives
Adding New Legislation Problems Towards The Period’s End
The House of Representatives held a Closing Plenary Session of Period I of 2013-2014 on Friday, 25 October 2013. With the closure, the House will enter a recess period until 20 November 2013. During the period session, there has not been a single law successfully completed by the House, although it should have been in correspondence with the House’s work plan presented in the Opening Session Speech on 16 August 2013, stating that there are 36 Bills on first-level discussions that should be completed.
The House Speaker stated that the completion of several bills during this period is in need of additional time due to the facing of several constraints, such as strategic final formulations and substance arrangements. Some bills facing these constraints include the bill on Public House Savings, on International Agreements, on Roads, on Accelerated Development in Island Regions and on Accelerated Development in Disadvantaged Regions. The House Speaker also stated that settlement constraints occurred during the government’s internal discussion of bills.
Besides explaining the development of bill discussions, the House Speaker also explained that the House has agreed upon the discussion of establishing 65 new autonomous regions. Eight of these are provinces, which are the provinces of Tapanuli, Nias Islands, Sumbawa Islands, Kapuas Raya, Bolaang Mongondow, Southern Papua, Central Papua and Southwest Papua. The bill that will manage the establishment of these 65 new autonomous regions will be discussed in the upcoming period which will start in mid-November. The formation of these new autonomous regions, also often referred to as regional expansion, has often been criticized for the lack of contribution towards the welfare of the local people, raising several new issues. The evaluation of the Ministry of Home affairs even states that 78% of regional expansion has failed; only 22% has been successful.
This year is a determining year for the House in completing the various laws that have been included in the National Legislation Program. There are several important bills such as the bill on Criminal Law, on Criminal Procedure, on Local Government, on Villages and on Local Elections. However, the issue of completing these laws will be faced against preparations for the 2014 General Elections. Members that have re-registered to be in the running will certainly be preoccupied by their political agenda. This condition gambles with the quality of our legislation. (MNS)
The Constitutional Court and the Judicial Review on Government Regulation in Lieu of the Law (Perppu)
The controversy surrounding the arrest of former Chairman of the Constitutional Court is lengthening. After the arrest, the President swiftly responded by enacting Government Regulation in Lieu of Law No.1 Year 2013 (Peraturan Pemerintah Pengganti Undang-Undang/Perppu), with the objective of reinforcing the supervising mechanism on Constitutional Court judges. However, thePerppu does not have sufficient reason to be categorized into a forced and urgent criteria outlined by the constitution. Potentially, the substance of the Perppu is unconstitutional, especially on the part that provides power to Judicial Commission. In 2006, the Constitutional Court had declared such arrangements as unconstitutional in Decision No. 005/PUU-IV/2006. The decision declares the Judicial Commission’s power to supervise the Supreme Court and Constitutional Court judges as unconstitutional.
Subsequently, the debate on whether the Constitutional Court has power to review the Perppu emerged, particularly regarding provisional clauses of the Judicial Commission’s power in supervising its judges. Despite the notion that the Constitutional Court has the power to review the Perppu based on Constitutional Court Decision No. 138/PUU-VII/2009, in principal, we argue that they shouldn’t. There are 2 (two) reasons; first, Article 24 Par.1 of the 1945 Constitution gives only the power to review the Law in a formal sense. The definition of Law in a formal sense is based on Article 20 Par.2 of the 1945 Constitution, where Law in a formal sense is a product between the President and Parliament. Whereas aPerppu, despite having similar substance and power, does not fit the Law in Article 24 Par.1 of the 1945 Constitution. Secondly, a Perppu is a special legislation under Article 22 of the 1945 Constitution. The speciality of Perppu is the legislation can only be enacted in force and urgent situation. Additionally, aPerppu is only a temporary legislation, where further enactment is needed to be approved by the House of Representatives. As a special legislation, a Perppu has its own control mechanism, different from the Law. The control mechanism is in the hands of the Parliament, not the Constitutional Court. Therefore, it is the Parliament who has the power to evaluate the Perppu’s substance; the Constitutional Court itself can only obtain power after the Perppu is approved by the Parliament. So based on Article 20 of the 1945 Constitution, the Perppubecomes Law in a formal sense as defined in Article 24 Par.1 of the 1945 Constitution, which outlines the Constitutional Court’s power. (GAT)
The Launching of www.indekshukum.org by the Indonesian Institute for Independent Judiciary
Currently in Indonesia, the use of court rulings by society, be it academicians, practitioners and activists, has had the need for a court decision index and statistic. As of now, this need has been fulfilled by the launching of thewww.indekshukum.org website that processes the index of court rulings found in the Supreme Court rulings website (www.putusan.mahkamahagung.go.id), which is managed by the Indonesian Institute for Independent Judiciary (Lembaga Kajian dan Advokasi untuk Independensi Peradilan/LeIP).
The processed result of www.indekshukum.org provides a categorization of rulings, not only based on the types of cases but also by specific legal issues that exist in the considerations of the rulings. In addition, summaries of selected rulings are also provided, with the intention of facilitating users in obtaining an overview of rulings and also annotations or comments towards them.
The site also provides a criminalization statistic given by the court. There is also the facility of variable selection which allows users to decide for themselves what kind of statistical information they would like. In the long run, this criminalization statistic would be of use to Attorneys/Public Prosecutors and even Judges as a guide in determining the degree of criminal charges and sentences that will be given. (RMF)