By: Febry Gunawan Sitorus – Founder Yuris Muda Indonesia

Background

The discourse of reviewing the Articles of Association/Budgets of Political Parties (“AD/ART Political Parties”) has recently become an interesting discussion. Starting from the desire of 4 (four) former Democratic Party cadres to submit a material review and judicial review of the 2020 Democrat Party Articles of Association / Bylaws which was ratified by the Minister of Law and Human Rights (Menkumham) on 18 May 2020 against Law No. Law Number 2/2008 Jo. Law 2/2011 concerning Political Parties (“Law on Political Parties”) to the Supreme Court (“MA”). The four former Democrat Party cadres appointed Prof. Yusril Ihza Mahendra as attorney.

In the press release delivered, Prof. Yusril Ihza Mahendra postulated that the Supreme Court had the authority to examine the AD/ART of political parties because the AD/ARTs of political parties were made by political parties on the orders of the law and the delegation given by the Political Party Law. According to him, there is a legal vacuum to resolve the AD/ART issues of political parties. The Party Court, which is a quasi-party internal judiciary, is not authorized to examine the AD/ART of political parties. Likewise, the District Court, which has the authority to adjudicate internal political party disputes that cannot be resolved by the Party Court, is not authorized to examine the AD/ART of political parties. The State Administrative Court is also not authorized to adjudicate this matter because its authority is only to adjudicate disputes over state administrative decisions.

Prof. Yusril Ihza Mahendra also postulated that the reason for the AD/ART of political parties can be tested in the Supreme Court because the position of political parties is very basic in democratic life and state administration. According to him, there are 6 (six) times the word political party is mentioned in the 1945 Constitution of the Republic of Indonesia (“UUD 1945). There are dozens of times that political parties are mentioned in the law, there is even a special law that regulates political parties, such as the current law, namely the Political Party Law. Institutions such as the Attorney General’s Office and the Corruption Eradication Commission are not even mentioned once in the 1945 Constitution. The 1945 Constitution states, among other things, that only political parties may participate in the Legislative Election, only political parties may nominate the President and Vice President. After the election, political party factions played a major role in proposing and discussing bills, discussing candidates for ambassadors, the TNI Commander and the National Police Chief, BI Governor, BPK, KPK and so on. In the regions, before there were independent candidates, only political parties could nominate regional heads and deputies. Once a political party is established and ratified, it cannot be dissolved by anyone, including the President. Political parties can only be dissolved by a Constitutional Court Decision.

According to him, the role of parties is so great in democratic life and state administration, parties that have representatives in the House of Representatives of the Republic of Indonesia (“DPR RI”) also receive financial assistance from the State Government Expenditure Budget (“APBN”) which means financed with public money. Therefore, according to him, the Supreme Court must make legal breakthroughs to examine, adjudicate and decide whether the 2020 Democratic Party’s Articles of Association are against the law or not? Is the amendment to the AD/ART and the formation of the AD/ART of the Democratic Party in 2020 in accordance with the procedures regulated by law or not? Is the regulatory material, such as the authority of the Upper House which is so large within the Democratic Party, inconsistent with the principle of member sovereignty as regulated in the Political Party Law?

AD/ART Political Parties Are Not Objects of Material Examination Rights in MA

The 1945 Constitution expressis verbis gives the Supreme Court the authority. Article 24A paragraph (1) of the 1945 Constitution stipulates that: “The Supreme Court has the authority to adjudicate at the level of cassation, examine statutory regulations under the law against the law, and have other powers granted by law”

The normative formulation of Article 24A paragraph (1) of the 1945 Constitution above clearly shows that in the context of judicial review, the Supreme Court’s authority is limited to reviewing legislation under the law against the law. The question is, what is meant by legislation? What is meant by law? The 1945 Constitution does not specifically regulate this matter, this can be understood because as in nature, the existing arrangements in the Constitution are only abstract norms, not concrete norms, so to find the meaning of laws and regulations, it is necessary to refer to the rules below, namely: the law that regulates statutory regulations. Currently, the law governing the legislation is Law Number 12 of 2011 concerning the Establishment of Legislation (“UU P3”).

Definition of Legislation

Article 1 point 2 of the P3 Law defines that statutory regulations are written regulations that contain legally binding norms in general and are formed or set by state institutions or authorized officials through the procedures stipulated in the Legislation.

From the formulation of the norms above, it can be seen that the absolute elements of a legal product that can be categorized as legislation are:

  • Written, meaning that the regulation must be made in written form in accordance with the format regulated in Attachment II to the P3 Law. In addition, whether or not a rule is written can not only be measured whether it is written on paper, but further written, the meaning is that the legislation must be promulgated and can be easily accessed by the public at large.
  • Binding in general, meaning that the norm address is society in general, not specifically, only referring to certain legal subjects
  • Formed and determined by a State Institution/authorized official, meaning that a regulation can be categorized as a statutory regulation must meet the requirements that the regulation is established and stipulated by a state institution/authorized official. State institutions are the entire political superstructure that carries out legislative, executive and judicial functions which have the task of making decisions relating to the public interest, both those mentioned in the 1945 Constitution and those not mentioned in the 1945 Constitution.
  • Formed according to the regulated procedure, meaning that in order to be categorized as a statutory regulation, the regulation must be made in accordance with the regulated procedure (currently, the P3 Law and its attachments)

AD/ART is not a statutory regulation

The next question is whether the AD/ART of a Political Party is a statutory regulation as referred to in Article 1 number (2) of the P3 Law?. Article 1 paragraphs 2 and 3 of the Political Party Law state that the articles of association of political parties are the basic regulations of political parties while the by-laws of political parties are regulations that are formed as an elaboration of the articles of association.

If referring to Article 1 number 2 of the P3 Law, the AD/ART of political parties does not meet the elements of the legislation. First, the AD/ART of a political party is not binding in general, because the AD/ART of a political party is a basic party regulation that binds only to members of a political party, not the general public, so it does not fulfill the binding element in general. Second, the AD/ART of political parties are not formed and determined by state institutions or authorized officials. Political Parties as forming AD/ART Political parties are not state institutions or authorized officials, because political parties are only one of the political infrastructures whose position is not to carry out legislative functions, not to carry out executive functions and moreover judicial functions. In addition, political parties are not institutions that have the task of making decisions related to the public interest. Third, the formation of the AD/ART of political parties is not required to be formed in accordance with the procedures for the formation of laws and regulations as regulated in the P3 Law and its attachments. So it is very clear that the AD/ART of a political party does not fulfill the elements as a statutory regulation. Therefore, it is clear that the AD/ART of a political party is not an object of judicial review in the Supreme Court.

Referring to Article 5 paragraphs (1) and (2) of the Political Party Law, it is clearly stated that:

AD and ART can be changed according to the dynamics and needs of Political Parties

The amendments to AD and ART as referred to in paragraph (1) shall be made based on the results of the highest decision-making forum for Political Parties.

From the above norm provisions, the Political Party Law completely surrenders the process of formulating/amending the AD/ART of Political Parties based on the dynamics and needs of political parties. So, if viewed from any side the AD/ART of political parties cannot be interpreted extensively as a statutory regulation, so that the Supreme Court is not authorized to test it against the law, especially since the entrance is the right of material review.

The Law on Political Parties actually regulates the provisions that must be regulated in the AD/ART of Political Parties. For example, Article 2 of the Political Party Law has detailed that the Political Party AD must contain the principles and characteristics of a political party, the vision and mission of a political party, the name, symbol and image of the party, the objectives and functions of the party, the organization, the domicile and decision making, the management of the political party. , mechanism for recruitment of political party membership and political positions, regeneration system, mechanism for dismissing members, party regulations and decisions, political education, party finance and internal party dispute resolution mechanisms. All of the above aspects must be stated in the AD/ART of political parties and in the verification process, the Ministry of Law and Human Rights through Article 4 of the Political Party Law will then conduct research and/or verify the completeness and correctness. So that at this stage the Law has provided a check stage for the correctness of the conditions that must be stated in the AD/ART of political parties.

From the perspective of the source of funding for political parties, it is also a confirmation that the AD/ART of a political party is not an object that can be used as an object of judicial review in the Supreme Court. Currently, the main source of funding for political parties is not the APBN/APBD.

Article 34 paragraph (1) of the Political Party Law stipulates that political party finances come from:

  1. Member fees;
  2. Legal donations; and
  3. Financial assistance from the State Revenue and Expenditure Budget/Regional Revenue and Expenditure Budget.

In Article 5 of Government Regulation Number 1 of 2018 concerning the Second Amendment to Government Regulation Number 5 of 2009 concerning Financial Aid to Political Parties (“PP Funds for Political Parties”) regulates the amount of financial assistance to Political Parties, namely for the Central level that gets seats in the DPR as much as IDR 1,000 per valid vote, IDR 1,200 per valid vote at the provincial level who gets a seat in the provincial DPRD, IDR 1,500 per valid vote at the regency / city level who gets a seat in the regency / city DPRD. This amount is very far from the needs of political parties, so that the majority source of funding for political parties comes from member fees and donations/grants obtained by political parties. Practically, the current sources of funding for political parties in Indonesia that come from the state are very minimal. Thus, the argument based on the Supreme Court’s authority to examine the AD/ART of political parties because there is a source of funds from the state that is disbursed from the APBN/APBD becomes a very weak argument and is forced. For different reasons, for example, if the majority of political parties’ funding sources come from the state, such as in Turkey (90%), Spain (87.5%), Belgium (85%) Italy (82%), Portugal (80%) Denmark (75 %) Finland (75%), Mexico (70%), Norway (67.4%), and Hungary (60%).The next argument relates to the Supreme Court’s authority to examine the AD/ART of a political party because the AD/ART of a political party is made by a political party on the orders of the law and the delegation given by the political party law. So the same thing if you follow this logic, the Articles of Association of Limited Liability Companies, BUMN, Foundations, Cooperatives, Community Organizations also have the potential to be tested in the Supreme Court. Of course, if this is allowed to happen then this is part of the destruction of the legal system and order itself.

Furthermore, the question of the number of phrases “Political Parties” that appear in the 1945 Constitution as well as laws cannot be interpreted mutatis mutandis and used as a measure of constitutional importance and whether or not the position of an institution/organization is fundamentally in the 1945 Constitution. For example, if you follow the logic built more often than not appears, the more basic its position in the state administration system, both as executor of judicial power the Constitutional Court is recorded as being mentioned in the 1945 Constitution 12 times, while the Supreme Court is mentioned 8 times. Can it be concluded that the position of the Constitutional Court is more basic than the Supreme Court? This means that the number of occurrences of the phrase in the 1945 Constitution cannot be simplified as a basis for determining whether or not the position of an institution is fundamental, let alone comparing it with other institutions – it is really not based on any theory. Of course, all must understand that the basis for determining whether or not the position of an institution is fundamental must be seen from the roles, functions, and authorities given not based on the number of phrases that appear. It is undeniable that in a democratic country political parties are one of the pillars, but it is also not possible for this reason to make the AD/ART equal to the laws and regulations.

Judicial review of the AD/ART Political parties do not have the basic spirit of the principle of norm adjudication. For example, in any legal field, testing of norms, both rules (regelling) and decisions (beschikking) is based on the same spirit, namely the arena of review (re-examination) of the actions or decisions (beleid) of the authorities that are considered detrimental to citizens. Both judicial review at the Constitutional Court, lawsuits against State Administrative Decisions/Contravention of the Law of the Ruler (Onrehcmatige Overheidsdaad) in the State Administrative Court, and including the examination of statutory regulations under the law against the law in the Supreme Court are all based on the spirit and philosophy corrective action on the policy/action of the authorities/government. Here it is clear, the spirit is to provide space for citizens to challenge state decisions/actions (State Institutions/Officials). Philosophically, why then is it necessary to provide space for citizens to examine every decision/policy or action of state institutions/state officials/government? Considering that its function is directly related to the public interest, it is very possible that the policies decided will have a direct impact/harm on the public interest (citizens).

It is far different from the position of political parties which do not have the legal authority to determine policies that have a direct impact on the public interest. Although Article 6A paragraph (2) of the 1945 Constitution stipulates that pairs of presidential and vice-presidential candidates are proposed by a political party/combination of political parties, it does not mean that the political party is the one who decides who has the right to become president, but it is still the community through a democratic process. Political party decisions and policies – in legal design – do not have a direct impact on the public interest, in contrast to state institutions/state/government officials which naturally have the authority to produce decisions/actions that have a direct impact on the public interest. Referring to the definition of a political party in the Political Party Law, it is clearly stated that a political party is an organization that is national in nature and is formed by a group of Indonesian citizens voluntarily on the basis of a common will and ideals to fight for and defend the political interests of members, society, nation and state. state, and maintain the integrity of the Unitary State of the Republic of Indonesia based on Pancasila and the 1945 Constitution of the Republic of Indonesia. Political parties are formed voluntarily, meaning that there is no compulsion for citizens to join political parties and therefore there is no obligation for citizens to be bound with the AD/ART of political parties. Political parties are formed on the basis of a common will and ideals, meaning that if there is no meeting of mind related to the ideals and dynamics that exist within the party, then there is no compulsion to remain involved in political parties. So that it can be seen that the character of attachment to political parties is voluntary and based on the same ideals. It is clear that the character differs from state institutions and the implications for the policies/decisions/rules that are formed. In the position of political parties as political infrastructure, they are voluntary in nature which can be formed at any time on the basis of freedom of association (Article 28 Jo. Article 28E paragraph (3) of the 1945 Constitution), at any time they can dissolve without any direct implications for the public interest. . Thus, it seems that the argument is very forced to try to expand the authority of the Supreme Court to examine the AD/ART of political parties on the grounds of the position of political parties in the constitutional system. (AI)