A plenary meeting at the House of Representatives. (Antara Photo/Hafidz Mubarak A)
Reviewing the Controversial MD3 Law
APRIL 03, 2018
Jakarta. In 2001, then-President Abdurrahman "Gus Dur" Wahid made a quip about members of the House of Representatives, likening them to kindergartners. If he were to make such a statement today, would Gus Dur be subjected to prosecution?
In February, lawmakers passed an amendment to the 2014 Legislative Law, known locally as the MD3 Law. Among other things, the amendments grant the legislative body’s ethics council (MKD) the power to press charges against those critical of the institution and its members.
Eight parties, including the Indonesian Democratic Party of Struggle (PDI-P), Golkar Party and the Democratic Party, supported the bill. Whereas the United Development Party (PPP) and the National Democratic Party (Nasdem) are reportedly opposed to it.
Members of the public, legal experts and various civil society organizations have voiced their concerns over the amended law, fearing it may jeopardize freedom of speech, freedom of expression and democracy in Southeast Asia's biggest economy.
The amendment should be signed by the president to be officially enacted, however President Joko "Jokowi" Widodo announced on March 14 that he will not sign the law, though it still went into effect automatically, 30 days after it was passed in the House.
The president cited public unrest as his main concern to not sign the new law, and said that the people should file a judicial review with the Constitutional Court to address the controversial articles in the revision.
House Speaker Bambang Soesatyo guaranteed that the amended law will not impact the public negatively.
"There shouldn’t be a misunderstanding that the MD3 law will stub out the public’s criticism against the House. I will make sure that anyone who criticizes the House will not be criminalized or prosecuted," said Bambang, a senior member of Golkar.
1. Article 73 on Forced Summonings of Citizens
This article states that the House of Representatives is authorized to issue a letter to summon citizens in its meetings. In cases where the summoned individual fails to present themselves after three summonses without proper or legitimate reasons, the House has the authority to summon them by force with the help of the National Police.
According to the Forum on Law and Constitutional Studies (FKHK), the article is in conflict with the Constitution and also the function of the House itself.
FKHK filed a petition against the MD3 Law to the Constitutional Court on Feb. 14.
"Legal steps are not the functions of the House. It works to form the law and supervise its enforcement," said Irmanputra Sidin, the attorney representing FKHK, as quoted by BeritaSatu.com.
Irmanputra further stressed that forced summoning is an instrument to control those in power, and is therefore irrelevant when used to control the public's behavior.
2. Article 122 on Contempt of Parliament
This article states that the MKD has the power to take legal action or other actions against persons, groups or legal entities that "disrespect the dignity of the House and its members."
This provision brings to mind Gus Dur. Years after his aforementioned 2001 quip, he noted that the House had further deteriorated to a playgroup.
The late president also reportedly said he regretted his comments likening members of the House to kindergartners, for their innocence does not fit the members’ "rotten" behavior.
As the new amendments come into force, it remains unclear whether anyone can make such comments.
3. Article 245 on House Immunity
The articles states that in any investigation concerning a member of the House, law enforcement authorities must acquire permission from the president and be reviewed by MKD.
Hendardi, from human rights group Setara Institute, previously noted that the House amassed more power as a legislative body that surpassed the power of law enforcement authorities.
"Overdosed protection for the House and the criminal threat for citizens as stipulated in the MD3 Law illustrates how the amendments have been compromised," Hendardi said in a statement.
According to Irmanputra, immunity should only be granted in the House members’ capacity as lawmakers. In addition, the article can be interpreted as providing "absolute immunity" to its members, which means they are free from being prosecuted in any criminal offense.
4. Article 15 and 84 on the Arrangement of DPR and MPR Leadership
These provisions added leadership positions at the House of Representatives and the People’s Consultative Assembly (MPR).
Prior to the revisions, both the House’s and MPR's leadership comprised of one speaker and four deputies.
With the amendments, the House’s leadership is now comprised of one speaker and five deputies and the MPR’s leadership is comprised of one speaker and seven deputies.
The additional leadership position at the House will be filled by PDI-P, which currently holds majority seats at the legislative body. According to a report from BeritaSatu.com, PDI-P appointed Utut Adianto to fill the additional deputy speaker position.
The three additional positions at the MPR have been filled by PDI-P, the Great Indonesia Movement Party (Gerindra) and the National Awakening Party (PKB).
According to a report by state-run news agency Antara, PPP chairman Romahurmuziy said the additional positions at MPR are a waste of the state's budget and could potentially lead to an abuse of power.
Judicial Review and Online Petition
The Constitutional Court has so far processed three petitions against the MD3 Law. They were filed by FKHK, the Indonesian Solidarity Party (PSI) and individual petitioners Zico Sumanjuntak and Josua Collins.
PSI chairwoman Grace Natalie said that her party’s move to file the petition was based on the public’s demand.
"The people’s aspiration was reflected in the polling results, PSI as a representative of its members’ and the public’s interest will head to the Constitutional Court," Grace said, referring to a social media polling conducted by PSI, as quoted by BeritaSatu.com.
Civil society organizations, including Indonesia Corruption Watch (ICW), the Association for Elections and Democracy (Perludem) and the Indonesian Center of Law and Policy Studies (PSHK), are rallying support through an online petition in rejection of the revisions.
More than 220,000 people have signed the petition, which has also garnered support from PPP.
A Lapse in Jokowi’s Administration
Many critics of the MD3 Law said the amendments represent yet another one of the House’s overreaches, though many others also said Jokowi had missed spotting the controversial articles during the amendment process.
It is worth noting that the lawmaking process does not solely involve members of the House but also requires deliberations with the government. The Indonesian Constitution states that a draft legislation can only become law when there is "joint agreement between the House of Representatives and the president."
Jokowi reportedly said that it had not been possible for Law and Human Rights Minister Yasonna Laoly, who represented the government, to report to him because the situation was fast-moving and quickly changing during the deliberations.
Stephen Sherlock, a professor at the University of South Wales in Canberra and former director of Australian National University’s (ANU) Center for Democratic Institutions (CDI), told the Jakarta Globe that the MD3 debacle showcased Jokowi’s failure in his role as a leader of the executive government.
"He should be the master of his cabinet and take the lead in his government’s relations with the House. Instead, he allowed one of his ministers to sign up to a law that goes against basic principles of accountability of state institutions," Sherlock said via email, adding that the situation resulted in a public embarrassment for the president.
However, Sherlock noted that the problem has existed even before Jokowi, and illustrated a "symptom of a deeper malaise with governance in Indonesia."
According to Sherlock, the root problem lies in the still-poor coordination between government ministries.