[Jakarta, 21 July 2014] On 8 July 2014, in the Final Plenary Session of Session Period IV, with the agenda of Level II Discussions for Decision Making on the Bill on Amendment to Law Number 27 of 2009 concerning the MPR, DPR, DPD, and DPRD (MD3 ), The government and the DPR have agreed to amend Law No. 27 of 2009 concerning MD3, from the original plan which was only a change.
Thus, the initial intention of the revision of Law No. 27 of 2009 concerning MD3 has changed. In the initial plan, this revision was carried out so that the MD3 Law was in accordance with the Constitutional Court’s decision. There are at least two Constitutional Court Decisions related to the MD3 Law, namely: Constitutional Court Decision No. 92/PUU-X/2012 regarding strengthening the authority of the DPD in discussing legislation, and the Constitutional Court Decision No. 35/PUU-XI/2013 related to reducing the authority of the DPR in discussing the RAPBN.
However, in the development of the discussion, there has been a deflection of the agenda. And this affects the institutional DPRD as one of the elements of regional government administration.
Although in general the composition and position of the institution and membership of the DPRD have not undergone much change, there have been some fundamental changes from the framework established by Law No. 27 of 2009. Some of these fundamental changes are:
1. The nature of DPRD meetings has not changed, that is, every DPRD session is open, except for certain meetings which are declared closed (Article 342 and Article 392 of the 2014 MD3 Law).
The tendency of legislators to build a secrecy regime, rather than an openness regime, can be seen from the fact that this clause has not been changed. Provisions regarding “certain meetings that are declared closed: not regulated. So it really depends on the interests of the leadership and members of the meeting.
This is counter-productive and inversely proportional to the positive assessment of the International Community, in line with Indonesia’s position as chairman of the global Open Government Partnership (OGP) initiative.
The Government’s determination and policies as chairman of OGP are in conflict with the policies and implementation orientation at the national legislation level. In addition, there is Law No. 14 of 2008 concerning Public Information Disclosure which must be guided by and become the legal framework in the preparation of every national legislation.
PATTIRO urges the Government and the DPR, as well as the DPD, as drafters of laws collectively, to be consistent with the Open Government Partnership (OGP) agenda. Consistency over the openness regime in legislation can only be built through changes to this clause. The norm of openness must be elevated to the Principles of the MD3 Law.
If there is an exception, because of the need to hold a closed meeting, it is done out of necessity, with strict and limited conditions. For example, DPRD meetings can be held behind closed doors when discussing testimonies from victims of gross human rights violations, or when they are related to someone’s personal secrets.
2. Elimination or elimination of the clause “receiving Gratification” as a criminal act that is prohibited from being committed by Members of DPRD (Article 350 paragraph (3) and Article 400 paragraph (3) of the 2014 MD3 Law).
It can be assumed that the abolition of the norm “prohibition of receiving gratuities” is an attempt to decriminalize gratuities by the drafters of the law. The aim is to protect themselves, and even provide material benefits through illegal channels.
Conflicts of norms are certain to occur (conflict of norms), between the 2014 MD3 Law and Law No. 31 of 1999 in conjunction with Law No. 20 of 2001 concerning the Eradication of Corruption.
PATTIRO urges the legislators to return the norm of “prohibition of receiving gratuities” as an element of corruption.
3. Elimination or omission of the clause on the permit procedure for inspection of DPRD Members.
PATTIRO’s findings lead to two consequences. The first consequence is that the procedure for permitting examination of DPRD Members is carried out in accordance with the Criminal Procedure Code. In other words, the position of DPRD members is not much different from that of ordinary citizens.
The second consequence is that DPRD members are not considered as state officials. A clash of norms will occur, between the 2014 MD3 Law and Law No. 28 of 1999 concerning Clean and KKN Free State Administration. In the last law, all state administrators are state officials.
For PATTIRO, DPRD members are state administrators, state officials, because of their position and role as members of the people’s representative body, the legislature at the regional level, which is part of state administration. Therefore, PATTIRO urges the drafters of the law to restore the position of DPRD members in accordance with the legal framework of Law No. 27 of 2009 concerning MD3.
With PATTIRO’s findings and notes, PATTIRO urges the DPR, DPD, and the Government to:
- Include the agenda for changing the 2014 MD3 Law into the National Legislation Program (Prolegnas) for the 2015-2019 period, and make it a priority for discussion in the 2015 National Legislation Program.
- Making changes to the 2014 MD3 Law, especially related to the main clauses regarding DPRD, both at the provincial and district/city levels, which have been submitted by PATTIRO above.
If the DPR, DPD, and the government do not respond to civil society’s pressure, then PATTIRO will carry out a constitutional review suit (Judicial Review) against the 2014 MD3 Law, related to the main materials that become objections to PATTIRO.
Sad Dian Utomo | Executive Director PATTIRO
saddian@pattiro.org | 0812 800 3045
Jl. Intan No. 81. Cilandak Barat. Jakarta Selatan. Indonesia. 12430
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For more information, please contact
Iskandar Saharudin | Policy Specialist
iskandar@pattiro.org | 0852 6045 0446
Riska Amelia Hasan | Communication and Press Assistant
riska@pattiro.org | 0821 1256 6552.
