1. INTRODUCTION

1. BACKGROUND

As a consequence of the adherence to the notion of popular sovereignty in the Indonesian constitution, democracy has always been the basic footing when discussing the existence of representative institutions. Even at the highest level of norms, Pancasila as the philosophische grondslaag in Indonesia has made popular sovereignty one of its pillars through the 4th principle which reads ‘democracy led by wisdom in deliberation/representation’. This understanding of the high position of popular sovereignty is embodied in Article 1(2) of the 1945 Constitution before the amendment which states: ‘Sovereignty is in the hands of the people, and is exercised entirely by the People’s Consultative Assembly.’

The recognition of the sovereignty of the people in this way became the beginning of the notion of distribution of power in the division of power in Indonesia, where the source of power is considered to be in the people and exercised by a People’s Consultative Assembly (hereinafter referred to as MPR), this power is then distributed and shared with other state institutions, so that it can be understood that other state institutions are under the People’s Consultative Assembly in the constitutional structure.

In order to carry out its role as the highest state institution authorised to determine the outlines of the State Policy, the People’s Consultative Assembly has the authority to form legislation in the form of an MPR Decree (hereinafter referred to as MPR Decree). The MPR Decree is a legislative product resulting from a deliberative decision of the MPR to be directed outward to provide regulatory outlines both in the implementation, both in the legislative power and in the executive power.

The Decree of the People’s Consultative Assembly or abbreviated as TAP MPR, is one of the legal and legitimate forms of legislation in force in the State of Indonesia. Even in the hierarchy of laws and regulations, TAP MPR has a higher position than Laws, Perppu, PP, Perpres and Perda. This is confirmed in Article 7 paragraph (1) of Law Number 12/2011 on the Formation of Legislation, which states that the types and hierarchy of Legislation consist of:

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

Based on Law No. 12/2011 on the Formation of Legislation, the MPR Decree can be considered as one of the sources of law. Although in the previous law, Law No. 10/2004 on the Establishment of Legislation, MPR Decree was not included in the hierarchy of legislation, it does not mean that the existence of MPR Decree is not recognised. However, the norms regulated in each MPR Decree from 1966 to 2002 are still recognised as a legal product that applies as long as it is not replaced by a formal law enacted afterwards.

The re-inclusion of TAP MPR in the order of legislation based on what is stated in Law Number 12/2011 on the Formation of Legislation, is only a form of affirmation that legal products made based on TAP MPR are still recognised and legally valid in the Indonesian legislative system. However, the re-inclusion of the MPR Decree in the order of legislation, of course, has legal implications or consequences that require rational explanation so as not to cause different legal interpretations.

2. PROBLEM FORMULATION

The various changes in the constitutional structure in Indonesia have inevitably resulted in significant changes to the existence of the MPR Tap in the order of Indonesian laws and regulations. The changes that have occurred are not only in the aspect of changes in order, but also cover the material that can be contained in a Tap MPR. Therefore, it is interesting to examine:

What is the position of the MPR Tap in the various order of laws and regulations in Indonesia?

1. DISCUSSION

THE POSITION OF TAP MPR IN VARIOUS ORDER OF LAWS AND REGULATIONS IN INDONESIA

According to Darji Darmodiharjo, the 4th precept is interpreted literally through the description of each word. In the word ‘populist’ in relation to the 4th precept, it is found that there is a recognition of popular sovereignty or democracy as the highest form of sovereignty in Indonesia. The phrase ‘wisdom of wisdom’ is interpreted by Darmodiharjo as the recognition of the use of mind or ratio by always paying attention to the unity and interests of the people honestly and responsibly in accordance with conscience.

The next words in the 4th precept are ‘deliberation’ and ‘representation’. ‘Consultation’ is defined by Darmodiharjo as a method of formulating a solution to a matter in accordance with the will of the people. Meanwhile, ‘representation’ is defined as a procedure implemented to ensure the involvement of the people in decision-making on matters related to the life of the state. In the end, Darmodiharjo concluded that with all these elements, the 4th precept became an important joint in the principle of kinship in Indonesia. In line with this way of thinking, the fourth principle is often considered as a method in realising the entire content of Pancasila, namely the method of populism or democracy. Considerations based on Pancasila are then expressed in the idea in Article 1 paragraph (2) of the 1945 Constitution which positions the MPR as the highest state institution.

As the highest state institution in Indonesia’s constitutional structure, there are at least two principles owned by the People’s Consultative Assembly: (i) the principle of legal power, i.e. as a sovereign institution that holds the power based on the law to determine all the provisions contained in the 1945 Constitution; (ii) the principle of no rival authority, which means that no authority either individually or institutionally has the power to violate or override something that has been decided based on the authority that exists in the MPR.

The position of the MPR as a supreme state institution in the 1945 Constitution before the amendment can also be seen from its authorities, which according to Cosmas Batubara can be summarised as:

The functions of the MPR are:

1. Enacting the Constitution;
2. Establishing the Outlines of State Policy;
3. Electing the President and Vice President.

The powers of the MPR are:

1. Amending the Constitution;
2. To hold the President/Minister of the MPR accountable for the implementation of the Guidelines and to assess this accountability;
3. Revoke the mandate and dismiss the President during his term of office if the President/Mandate of the MPR seriously violates the State Policy and/or the Constitution.

In its development, there have been several changes regarding the position of the MPR in the constitutional structure. The beginning of these changes can be found in the formulation of Article 1 paragraph (2) of the 1945 Constitution, which reads: ‘Sovereignty is in the hands of the people and shall be exercised according to the Constitution’. The MPR is no longer recognised as the highest state institution and this has brought about several changes to its functions and authority. The MPR Decree (hereinafter referred to as MPR Decree) as a legal product of the MPR, which initially had a regulating nature, has also undergone fundamental changes, especially in terms of content.

To see the position of TAP MPR in the Indonesian legislative system, it is better to start from the theory of legal pyramid (stufentheorie) introduced by Hans Kelsen. The theory provides categorisation or grouping of various basic legal norms that apply. Hans Kelsen’s theory was later developed by Hans Nawiasky through a theory called ‘theorie von stufenufbau der rechtsordnung’. This theory provides an explanation of the arrangement of norms as follows:

1. Staatsfundamentalnorm (staatsfundamentalnorm);
2. The basic rules of the state (staatsgrundgesetz);
3. Formal laws (formell gesetz); and
4. Implementing regulations and autonomous regulations (verordnung en autonome satzung).

Based on Hans Nawiasky’s theory, A. Hamid S. Attamimi tried to apply it to the hierarchical structure of legislation in Indonesia. Based on Nawiasky’s theory, the order of legislation in Indonesia is as follows:

1. Staatsfundamentalnorm: Pancasila (Preamble to the 1945 Constitution);
2. Staatsgrundgesetz: The Body of the 1945 Constitution, MPR Decrees and Constitutional Conventions;
3. Formell gesetz: Law;
4. Verordnung en Autonome Satzung: Hierarchically ranging from Government Regulations to Regent or Mayor Decrees.

Broadly speaking, TAP MPR is categorised as a basic rule of the State (staatsgrundgesetz) or can also be referred to as a basic norm (grundnorm). However, Attamimi’s categorisation was made when the MPR was still the highest State institution or before the 1945 Constitution was amended. The position of the MPR Decree before the amendment of the Constitution was indeed one of the legal products at the same level as the Constitution. This refers to the authority and position of the MPR as an institution embodying popular sovereignty in the Indonesian constitutional system. This is in line with the explanation of Article 3 of the 1945 Constitution, which states that, ‘Because the People’s Consultative Assembly holds the sovereignty of the state, its power is not limited, considering the dynamics of society, once in 5 years the Assembly takes into account everything that happens and all the currents at that time and determines what directions should be used for the future’.

During the reform era, TAP MPR was perceived as an extension of power to make certain regulations that benefit or legitimise the interests of power. For this reason, the term ‘sunset clouse’ was coined, a gradual effort to remove the MPR Decree as a source of law in the Indonesian legislative system. This is also what underpinned the project to evaluate and massively abolish the TAP MPRS in 2003 through the General Assembly (SU) of the MPR. Mahfud MD referred to this agenda as ‘Sapu Jagat’, which swept away all existing TAP MPRS and gave them a new status.

The culmination of this ‘sunset clouse’ and ‘sweep the universe’ agenda was the issuance of Law No. 10/2004 on the Formation of Laws and Regulations, which did not include the MPR Decree as one of the sources of law. But does the exclusion of the MPR Decree in the law mean that the spirit and existence of the MPR Decree has completely disappeared from the Indonesian legislative system? No, it does not. The existence of TAP MPR should still be recognised, albeit with different characteristics and norms.

Quoting Mahfud MD’s opinion, MPR Decree can still exist and be issued by the MPR, but it is limited to beschikking (concrete and individual) decrees such as Decree on the appointment of the President, Decree on the dismissal of the President and so on. Even the MPR Decree is still used as a source of material law. As affirmed by Mahfud MD, as a source of law, the MPR Decree can be used as a source of material law (law-making material), but not a source of formal law (legislation). As a source of material law, the MPR Decree can be used as legal material such as the values of justice that grow and develop in society, the social and economic conditions of the community, the historical and cultural heritage of the nation and others.

TAP MPR IN THE HIERARCHY OF LAWS AND REGULATIONS THAT HAVE BEEN AND ARE STILL IN FORCE IN INDONESIA

Theoretically, the development of hierarchy and arrangement of laws and regulations cannot be separated from the theory introduced by Hans Kelsen. According to Kelsen, there are basically two classes of norms in law, namely superior norms and inferior norms where the validity of lower norms can be tested against norms that are hierarchically in a higher position. Because of this validity test against higher legal norms, Kelsen in his Stufentheorie argues that the law has regulated the formation of itself. The end of this legal formation (regressus) according to him will culminate in a supreme basic norm or commonly referred to as Grundnorm.

Hans Kelsen’s thoughts on the hierarchy and level of norms in the legislation are detailed in more depth by Hans Nawiasky in die Theorie vom Stufenordnung der Rechtsnormen. According to Nawiasky, the arrangement of legal norms is arranged in a stupa-shaped legal building (Stufenformig) consisting of certain parts (Zwischenstufe). Nawiasky agrees that the formation of these stacked norms is indeed preceded by a basic norm that is formed not based on a higher norm, but is pre-supposed. The highest layer of the legal structure according to Nawiasky is the Staatsfundamentalnorm, which is the norm that forms the basis of the formation of a state constitution that must be accepted fictitiously as an axiom. Therefore, according to Nawiasky, the norm in the Staatsfundamentalnorm is basically formed long before the existence of a state constitution.

Under the Staatsfundamentalnorm, there is a group of norms as a basic rule commonly known as (Gesetzesrecht) as a reference to the laws and regulations that apply in a country. This regulation can be compiled in a particular document to be known as Staatsverfassung or can also be scattered in several state documents to be called the Staatsgrundgesetz terminology. Although the Staatsgrundgesetz is more detailed than the Staatsfundamentalnorm, it is still basic and broad.

In the next layer according to Nawiasky, there is Formellgesetz or commonly translated as formal law. The regulations in this Formellgesetz level are more concrete and detailed. Typically, it is in this group of regulations that paired legal norms are found, where a legal provision in the form of a command (primary norm) is also equipped with the consequences of its violation (secondary norm). This means that in this level of Formellgesetz, provisions have been found that are equipped with sanctions.

The lowest level of Nawiasky’s theory is Verordnungsatzung and Autonome Satzung which translates as implementing regulations and autonomous regulations. Verordnungsatzung are implementing regulations that stem from the existence of delegated authority, while Autonome satzung stem from an authority of attribution.

If the theory of legislation initiated by Nawiasky is contextualised in the order of legislation in Indonesia, it is found that Pancasila and the Preamble of the 1945 Constitution are at the top of the stupa as Staatsfundamentalnorm whose existence is accepted as an axiom. The Torso of the 1945 Constitution, the MPR Decree, and the Constitutional Convention are included in the Staatsgrundgesetz group. Laws in the sense of legal products formed by the House of Representatives with the joint approval of the President are included in the Formellgesetz group. Meanwhile, various other laws and regulations that are autonomous regulations and implementing regulations such as Government Regulations, Regional Regulations, and so on are classified in the last group, namely Verordnungsatzung and Autonome Satzung.

Indonesia has tried to adopt an understanding of the importance of the existence of the order and composition of laws and regulations in order to maintain legal order. For this purpose, the regulation of the order of laws and regulations has changed several times in various legal products. In the old order era, the order of enactment of laws and regulations was regulated through Article 1 of Law No. 1 of 1950 which states:

The types of Central Government regulations are:

1. Laws and Government Regulations in Lieu of Laws;
2. Government Regulation;
3. Ministerial Regulation.

It appears that the MPR Tap still does not have its own place in Law No. 1/1950 as part of statutory regulations. Recognition of the existence of the MPR Tap as an additional type of legislation that changes the hierarchy of laws and regulations began to be found in the provisions of MPR Tap No. XX/MPRS/1966 which in Appendix II details the order of laws and regulations into:

The forms of legislation of the Republic of Indonesia according to the 1945 Constitution are as follows:

1. Constitution of the Republic of Indonesia 1945;
2. Decree of the People’s Consultative Assembly of the Republic of Indonesia;
3. Law;
4. Government Regulation in Lieu of Law (Perpu);
5. Government Regulation;
6. Presidential Decree;
7. Local Regulation.

During the enactment of MPR Decree No. III/MPR/2000, there was a fundamental change in the constitutional structure of the Unitary State of the Republic of Indonesia as a consequence of the completion of the Fourth Amendment to the 1945 Constitution. These changes of course also have a major impact on the composition and order of laws and regulations in Indonesia, one of which is the validity of MPR Decrees as laws and regulations. Through the existence of MPR Decree No. I/MPR/2003, there is a list of MPR Decrees and MPRS Decrees that have been revoked or declared revoked pending the first time. Although there are still MPR Taps in force, they are only beschikking or decrees, while the MPR no longer has the authority to issue regulating or regelling MPR Taps. The MPR Decrees that are still in force after the issuance of MPR Decree No. I/MPR/2003 include:

1. MPRS Decree No. XXIX/MPRS/1966 on the Appointment of Hero Ampera;

1. MPR Decree No. XI/MPR/1998 on the Organisation of a State that is Clean and Free from Corruption, Collusion, and Nepotism.

2. MPR Decree No. XV/MPR/1998 on the Implementation of Regional Autonomy; Regulation of the Equitable Distribution and Utilisation of National Resources; and Financial Balance between the Centre and Regions within the Framework of the Unitary State of the Republic of Indonesia.

3. MPR Decree No. III/MPR/2000 on Sources of Law and the Order of Legislation.

4. MPR Decree No. V/MPR/2000 on Strengthening National Unity and Integrity.

5. MPR Decree No. VI/MPRI/2000 on the Separation of the Indonesian National Army and the Indonesian National Police.

6. MPR Decree No. VII/MPR/2000 on the Role of the Indonesian National Army and the Role of the Indonesian National Police.

2. MPR Decree No. VI/MPR/200I on the Ethics of National Life.

3. MPR Decree No. VII/MPR/2001 on the Vision of Future Indonesia.

4. MPR Decree No. VIII/MPR/200I on Recommended Policy Direction for the Eradication of Corruption, Collusion and Nepotism Prevention.

5. MPR Decree No. IX/MPR/2001 on Agrarian Reform and Natural Resource Management.

As for the ‘disappearance’ of the MPR Tap from the order of legislation, according to Marida Farida, it is constitutionally acceptable. This is because the MPR’s authority contained in the 1945 Constitution of the Republic of Indonesia, Fourth Amendment, only includes the authority to amend and enact the Constitution, inaugurate and dismiss the President and/or Vice President, elect the Vice President in the event of a vacancy, and elect the President and Vice President in the event of a vacancy. The MPR’s authority in the field of forming laws and regulations to regulate society is not contained in the 1945 Constitution of the Republic of Indonesia, which has the consequence of eliminating the MPR’s governing Tap.

In connection with these changes, Law No. 10/2004 eliminated the existence of the MPR Tap from the hierarchy of laws and regulations in Indonesia. Under the enactment of Law No. 10 of 2004, the applicable order of laws and regulations is:

The types and hierarchy of laws and regulations are as follows:

1. Constitution of the Republic of Indonesia Year 1945;

2. Law / Government Regulation in Lieu of Law;

3. Government Regulation;

4. Presidential Regulation;

5. Regional Regulations.

However, the existence of the MPR Tap in the legislation is again recognised in Law No. 12/2011, which according to the law the order of legislation in Indonesia consists of:

The types and hierarchy of laws and regulations consist of:

1. The 1945 Constitution of the Republic of Indonesia;

2. Decree of the People’s Consultative Assembly;

3. Law / Government Regulation in Lieu of Law;

4. Government Regulation;

5. Presidential Regulation;

6. Provincial Regional Regulations; and

7. District/City Regional Regulation.

In addition to reinserting MPR Decrees as part of laws and regulations, the Explanation of Article 7 of Law No. 12/2011 also states that what is referred to as MPR Decrees in the Law are:

‘Decree of the People’s Consultative Assembly’ means the Decree of the Provisional People’s Consultative Assembly and the Decree of the People’s Consultative Assembly which are still in force as referred to in Article 2 and Article 4 of the Decree of the People’s Consultative Assembly of the Republic of Indonesia Number: I/MPR/2003 on the Review of the Material and Legal Status of the Decrees of the Provisional People’s Consultative Assembly and the Decrees of the People’s Consultative Assembly of 1960 up to 2002, dated 7 August 2003.

The existence of the Explanation of Article 7 has led to a shrinkage in the number of MPR Decrees that are still in force. Therefore, when broken down by considering the applicable laws in positive law and with the limitation provided by the Explanation of Article 7, it is found that the MPR Decrees that are still in force include:

1. Article 2 of MPR Decree No. I/MPR/2003;

2. MPR Decree No. XXV/MPRS/1966 on the Dissolution of the Indonesian Communist Party, the Declaration of the Indonesian Communist Party as a Prohibited Organisation throughout the Territory of the Republic of Indonesia and the Prohibition of Any Activity to Spread or Develop Communist/Marxist-Leninist Thoughts or Teachings;

3. MPR Decree No. XVI/MPR/1998 on Political Economy in the Framework of Economic Democracy.

4. Article 4 of MPR Decree Number I/MPR/2003

5. Decree of the People’s Consultative Assembly of the Republic of Indonesia Number XI/MPR/1998 on Clean and Corruption, Collusion and Nepotism-Free State Administration.

6. Decree of the People’s Consultative Assembly of the Republic of Indonesia Number VI/MPR/2001 on the Ethics of National Life.

7. Decree of the People’s Consultative Assembly of the Republic of Indonesia Number VII/MPR/2001 on the Vision of a Future Indonesia.

8. Decree of the People’s Consultative Assembly of the Republic of Indonesia Number IX/MPR/2001 on Agrarian Reform and Natural Resource Management.

The influence of the changes in the order of laws and regulations on the existence of the MPR is not only in the aspect of the presence and disappearance of the MPR Tap from the hierarchy, but more than that it also affects the content material contained in the MPR Tap itself. Therefore, an understanding of the MPR also needs to be carried out to the aspects of its form and content.

MPR Tap as Beschikking

It is first necessary to define what is meant by regelling and beschikking in the context of public administration. Broadly speaking, there is a difference between beschikking and regelling in the scope of regulation. Beschikking is an administrative decision with an individual and concrete scope of regulation. Beschikking is defined by Prins as a unilateral legal action in the field of government carried out by a government body based on its extraordinary authority. The nomenclature ‘decision’ or ‘decree’ is used for beschikking legal products. The provisions contained in a beschikking, according to Maria Farida, are one-off (einmahlig).

Whereas regelling is used to refer to the results of regulation, so that if qualified in Indonesian legal terminology it is commonly paired with ‘regulation’. Regelling regulates norms that are general and abstract and continuous.

By using some of these basic definitions, we can criticise the existence of the MPR Decree. First, in terms of terminology, it is clear that the MPR Decree can be justified as a beschikking due to the use of the term ‘decree’ in naming the legal product. It has been explained previously that the use of the term ‘decree’ is commonly used for legal products that are beschikking in nature.

Second, in terms of material. The substance contained in the MPR Decree has actually changed in accordance with changes in the applicable legislative regime. In its latest development after the reformation, the material of the MPR Tap has been adjusted to its position in the 1945 Constitution of the Republic of Indonesia, so that there are only MPR Taps that are beschikking in nature. The MPR Decrees that are still in force after the enactment of Law No. 12/2011 as described in the previous section are all beschikking.

It is also necessary to review the content material contained in the MPR Tap in relation to the general provisions of a statutory regulation. According to Satjipto Rahardjo, there are several characteristics that must be fulfilled by a legal product in order to be classified as legislation. These characteristics include: (i) legislation has a general and comprehensive nature, the opposite of this nature is a special and limited nature; (ii) legislation is universal in order to anticipate future events that may not necessarily occur; (iii) there is a provision to correct and improve itself.

Based on these three characteristics, we can see that the MPR Tap cannot be fully justified as a piece of legislation. In relation to the first characteristic, while MPR TAPs that are regulative in nature and generally applicable can be referred to as legislation, this is not the case with MPR TAPs that apply concretely and individually. Similarly, with regard to the second characteristic, not all MPR Decrees are universally applicable and take into account their future usefulness; MPR Decrees that stipulate something are certainly limited to concrete and individual matters. Similarly, with the third characteristic, a MPR Decree that is beschikking in nature does not allow for a mechanism to make changes because its application is only applicable once and is final.

Third, as mentioned earlier, the changes in the 1945 Constitution no longer allow the MPR to issue legal products that regulate society in general. In the 1945 Constitution, the MPR’s authority has been restricted to only inaugurating and dismissing the President and/or Vice President, electing the Vice President in the event of a vacancy, and electing the President and Vice President in the event of a vacancy. This shows that there is no constitutional justification for the MPR to issue a MPR Tap, especially one of a general regulatory nature. Law No. 17/2014, as the legal basis of the legislative body at the level of laws, does not also explain the MPR’s authority to make laws that regulate generally. This further justifies that the re-recognition of MPR Taps as part of statutory regulations is constitutionally inappropriate.

Therefore, in order to maintain constitutionality and conformity with theories in legislation, the author argues that the existence of MPR Decrees in the order of legislation should be eliminated. This is because the regulations in ‘laws and regulations’ should be regelling regulations, which can no longer be contained in MPR Decrees after the enactment of MPR Decree No. I/MPR/2003.

In order to prevent a legal vacuum, the norms in the MPR Decree that are currently still in force and deemed necessary can also be standardised in the form of laws. Regulations through the law are considered more favourable due to their regelling nature, where it is also possible to regulate the prevention and even sanctions against violations of these norms. Thus, there is congruence between the institution and its legal products with the norms in the constitution.

Legal Implications

After the issuance of Law No. 12/2011 on the Formation of Legislation, the existence of TAP MPR has again become a hot discourse in all circles, especially among experts in Constitutional Law and legislation. The legal implications of the re-inclusion of TAP MPR in the hierarchy of legislation, clearly bring logical consequences in the arrangement of the Indonesian legal system, both norms, position, and testing space due to conflicts between other legislative products. The existence of Law No. 12/2011 on the Establishment of Legislation has resulted in the TAP MPR automatically (ex-officio) becoming a reference in the formation and application of the provisions of the legislation below it. In this case the Law/Perppu, PP, Perpres, and Perda.

Disagreements have arisen among observers of constitutional law and legislation. Some say that the existence of the MPR Decree in the hierarchy of legislation as stipulated in Law No. 12/2011 on the Establishment of Legislation, has provided space for the MPR to re-formulate provisions that bind the public. In fact, in the 2003 General Session of the MPR, it was decided that MPR Decrees no longer regulate outward (binding the public), but only apply to the internal MPR. The 2003 MPR General Assembly affirmed that provisions that are binding on the public must be implemented through legislation. However, this has been answered in the previous discussion, that the MPR no longer has the authority to enact regelling provisions. There are at least 2 (two) reasons for this. Firstly, the amendment to the 1945 Constitution has the consequence that the MPR can no longer make regulating provisions, except those that are internal to the MPR itself. Second, the MPR is an institution that can be said to exist when it carries out the functions and authorities granted by the Constitution. And the authority to form laws is no longer contained in the post-amendment Constitution.

There are 3 (three) important questions related to the re-inclusion of the MPR Decree in the hierarchy of laws and regulations based on the provisions of Article 7 of Law No. 12/2011 on the Establishment of Laws and Regulations. Firstly, what is the spirit or ‘asbabun nuzul’ of the re-inclusion of MPR Decree in the hierarchy of laws and regulations? Second, which MPR Decree is referred to in the provisions of Article 7 of Law No. 12/2011 on the Establishment of Legislation? Third, what are the consequences of testing material or norms in MPR Decrees that conflict with other laws and regulations and vice versa?

Why is the MPR Decree re-incorporated into the hierarchy of legislation as stipulated in Law No. 12/2011 on the Establishment of Legislation? It must be understood that the MPR Decree is still recognised as a source of law in the Indonesian legislative system. This is reinforced by the 1945 Constitution of the Republic of Indonesia in the Supplementary Rules section of Article I which states that, ‘The People’s Consultative Assembly is assigned to conduct a review of the material and legal status of the Provisional People’s Consultative Assembly Decrees and the Decrees of the People’s Consultative Assembly for a decision at the 2003 session of the People’s Consultative Assembly’.

The MPR Decree referred to in the provisions of Article 7 paragraph (1) letter b of Law Number 12 of 2011 concerning the Formation of Legislation, can be explained through the explanation of the article which states that, ‘What is meant by “Decree of the People’s Consultative Assembly” is the Decree of the Temporary People’s Consultative Assembly and the Decree of the People’s Consultative Assembly which are still valid as referred to in Article 2 and Article 4 of the Decree of the People’s Consultative Assembly of the Republic of Indonesia Number: I/MPR/2003 on the Review of the Material and Legal Status of the Provisional People’s Consultative Assembly Decrees and People’s Consultative Assembly Decrees from 1960 to 2002, dated 7 August 2003’. In MPR Decree No. I/MPR/2003, it was decided which MPR Decree(s) out of a total of 139 decrees from 1966 to 2002, are still valid and no longer valid.

In TAP MPR Number I/MPR/2003 the existing TAP MPR is given a new legal status which is grouped into 6 (six) articles, among others:

1. Article 1 on MPR/MPRS Decrees revoked and declared invalid (8 Decrees);

2. Article 2 on Decrees of the MPRS/MPR that are declared valid with conditions (3 Decrees);

3. Article 3 on the Provisions of the MPRS/MPR that are declared to remain in force until the formation of the government resulting from the 2004 General Elections (8 Provisions);

4. Article 4 on the Provisions of the MPRS/MPR that are declared to remain in force until the formation of a law (11 Provisions);

5. Article 5 on the Provisions of the MPRS/MPR which are declared to remain in force until the establishment of new rules of procedure by the People’s Consultative Assembly of the Republic of Indonesia resulting from the 2004 General Elections (5 Provisions);

6. Article 6 on MPRS/MPR Decrees that do not need further legal action, either because they are final (enimalig), have been revoked, or have been completed (104 Decrees).

Based on the grouping above, the MPR Decrees that are still considered valid are contained in Article 2 and Article 4, with a total of 13 MPR Decrees that are still valid. The MPR Decrees that are still in force are:

1. MPR Decree No. XXV/MPRS.1966 on the Dissolution of the Indonesian Communist Party, the declaration of the Indonesian Communist Party as a banned organisation in all regions of Indonesia and the prohibition of any activities to spread or develop the ideology or teachings of Communism/Marxism-Leninism;

2. MPR Decree No. XVI/MPR/1998 on Political Economy in the Framework of Economic Democracy;

3. MPR Decree No. V/MPR/1999 on the Determination of Opinion in East Timor;

4. MPR Decree No. XXIX/MPRS/1966 on the Appointment of Ampera Heroes (in the latest development, Law No. 20/2009 on Titles, Merit Marks and Honours);

5. MPR Decree No. XI/MPR/1998 on Clean and KKN-free State Administration;

6. MPR Decree No. XV/MPR/1998 on the Implementation of Regional Autonomy, the Regulation, Equitable Distribution and Utilisation of National Resources, and the Financial Balance between the Centre and Regions in the NRI.

7. MPR Decree No. V/MPR/2000 on Strengthening National Unity and Integrity.

8. MPR Decree No. VI/MPR/2000 on the Separation of the Indonesian National Army and the Indonesian National Police.

9. MPR Decree No. VII/MPR/2000 on the Role of the TNI and the Role of the Polri.

10. MPR Decree No. VI/MPR/2001 on the Ethics of National Life.

11. MPR Decree No. VII/MPR/2001 on the Vision of a Future Indonesia.

12. MPR Decree No. VIII/MPR/2001 on Recommended Policy Direction for the Eradication and Prevention of KKN.

13. MPR Decree No. IX/MPR/2001 on Agrarian Reform and Management.

These thirteen MPR Decrees are referred to in the explanation of Article 7 paragraph (1) letter b of Law No. 12/2011 on the Formation of Legislation, with a grouping of 11 MPR Decrees that are no longer valid due to the enactment of laws (Article 4 of MPR Decree No. I/MPR/2003) and 3 MPR Decrees that are still valid today (Article 2 of MPR Decree No. I/MPR/2003). As for MPR Decree No. V/MPR/1999 on the Determination of Opinion in East Timor, it automatically ceases to apply because the norms set out in it have been implemented. Thus, the remaining 2 MPR Decrees are still in force today due to their legal status that has not been revoked or replaced through law. The question then arises, whether outside of the two MPR Decrees, the MPR Decrees can be declared valid again and used as a formal source of law? In legal logic, this is impossible considering that it is impossible for the validity of higher legislation to be legitimised or made based on lower legislation, in this case Law Number 12/2011 on the Formation of Legislation.

As a result of the inclusion of TAP MPR in the hierarchy of laws and regulations, problems arise in terms of norm testing among other laws and regulations. What if the MPR Decree contradicts the 1945 Constitution of the Republic of Indonesia? And what if there are laws that conflict with the MPR Decree? If we refer to the current Indonesian judicial system, judicial review is imposed on the Constitutional Court. However, the authority of the Constitutional Court is limited to judicial review of laws against the Constitution. There are no specific provisions governing the procedure for testing the MPR Decree against the Constitution or the Law against the MPR Decree. The Constitutional Court may not immediately conduct a review of the MPR Decree, unless the Constitutional Court makes progressive legal efforts as it has done so far.

However, if we refer to TAP MPR Number I/MPR/2003, especially in the provisions of Article 4, then the Constitutional Court can actually conduct a review of TAP MPR. This is because the provisions of Article 4 of MPR Decree No. I/MPR/2003 implicitly equate the position of MPR Decree with a law that is required to be made to replace the norms stipulated in the previous MPR Decree. Except for the MPR Decree mentioned in Article 2 of MPR Decree No. I/MPR/2003, the Constitutional Court does not have the authority to review it because the provisions of Article 2 do not require amendment or revocation through Law as required in Article 4.

1. CLOSING

CONCLUSION Through the above description, it can be understood that the existence of the MPR Tap as a legislative product has experienced a long dynamic. The existence of the MPR Tap, which initially had no place in Law No. 1 of 1950, later received recognition as a Staatsgrundgesetz under the 1945 Constitution of the Republic of Indonesia in MPRS Tap No. XX/MPRS/1966 concerning the DPR-GR Memorandum on the Source of Legal Order of the Republic of Indonesia and the Order of Legislation of the Republic of Indonesia and in MPR Tap No. III/MPR/2000 concerning the Source of Law and the Order of Legislation. The loss of recognition of the MPR Decree as one of the laws and regulations in Law No. 10/2004 on the Establishment of Laws and Regulations did not necessarily make it disappear, but instead it was re-emerged as a Staatsgrundgesetz in Law No. 12/2011 on the Establishment of Laws and Regulations.

To date, the regulation of MPR Decrees has shown conformity with constitutional norms. This is in line with the Fourth Amendment to the 1945 Constitution of the Republic of Indonesia which equalised the position of state institutions where the MPR is no longer considered the highest state institution, thus forcing the MPR to revoke the MPR Decrees which are regulating or regelling in nature through MPR Decree No. I/MPR/2003. Adjustments to laws and regulations made through laws also suppressed the existence of the MPR Taps, leaving only 6 MPR Taps in the nature of beschikking, which are concrete, individual and final. However, because of its beschikking nature, the existence of MPR Taps as part of statutory regulations should also be eliminated in order to realise good legal order in the Indonesian legal state.

The position and authority of the MPR before and after changes to the 1945 Constitution are very different. This has the consequence that the MPR can be said to exist, when exercising the authority granted by the Constitution. As a result, the MPR is no longer a full representative institution, but tends to be a ‘joint session’ between members of the DPR and members of the DPD who have the function of a constituent institution in charge of amending and establishing the Constitution.

The inclusion of TAP MPR into the hierarchy of legislation as mentioned in Article 7 paragraph (1) letter b of Law Number 12/2011 on the Formation of Legislation, has legal implications, namely the requirement of TAP MPR as a reference for legislation that is below it, whether it is a Law/Perppu, PP, Perpres or Perda.

The MPR Decree referred to in Article 7 paragraph (1) letter b of Law Number 12/2011 on the Formation of Legislation, is the MPR Decree that refers to the results of the 2003 General Session of the MPR which gave birth to MPR Decree Number I/MPR/2003, specifically in article 2 and article 4.

TAP MPR can still exist and be issued by the MPR, but it is limited to beschikking (concrete and individual) decisions such as TAP on the appointment of the President, TAP on the dismissal of the President and so on.

TAP MPR can be used as a source of material law (law-making material), but not a source of formal law (legislation). As a source of material law, TAP MPR can be used as legal material such as the values of justice that grow and develop in society, the social and economic conditions of the community, the historical and cultural heritage of the nation and others.

The examination of the MPR Decree against the Constitution and the Law against the MPR Decree as a consequence of the hierarchy of legislation regulated in Article 7 paragraph (1) letter b of Law Number 12/2011 on the Formation of Legislation, has no basis for the mechanism or provisions of the test. The Constitutional Court cannot necessarily test the MPR Decree, except for the MPR Decree which, based on the provisions of Article 4 of MPR Decree Number I/MPR/2003, is equated with a law.

ADVICE

In the author’s opinion, the existence of Tap MPR in the order of laws and regulations should be eliminated. This can be done after the norms in the MPR Tap that are currently still valid and deemed necessary are adopted in the form of laws. Thus, concerns about the possibility of a legal vacuum can be avoided.

Author: Rahmat Nur Najib, S.H.