Strengthening Indonesia’s Regional Representative Council Through Judicial Review by the Constitutional Court

Abstract

Indonesia’s Regional Representative Council, the second chamber in the nation’s legislative system, has been criticized as insignificant because its role in law-making is unequal to that of the more powerful House of Representatives. Various efforts have been made to remedy the situation, including the submission of judicial reviews before the Constitutional Court. This article analyzes whether judicial review has succeeded in enhancing the role and powers of the Council. Using an evidence-based research approach, it examines the extent to which decisions made by the Constitutional Court have improved the Council’s powers. Application of this analysis offers the potential to broaden understanding of the development of the Council and its efforts to strengthen its powers.

Introduction

Enfeebled by design since its establishment in October 2004, Indonesia’s Regional Representatives Council (Dewan Perwakilan Daerah, hereinafter the Council) has struggled to find relevance (Rich, 2013, p. 193), as it is smaller and substantially less powerful than the House of Representatives (Dewan Perwakilan Rakyat, hereinafter the House). This inequality has prevented the Indonesian people from having a truly bicameral parliamentary system. In seeking to augment its limited powers, the Council has pursued various avenues: new legislation, proposals for a constitutional amendment, and judicial review of law at the Constitutional Court. So far, some of the most positive results have come from judicial review. This article examines how the Constitutional Court has played a pivotal role by clarifying the role and composition of Council in a series of decisions from 2012 to 2019.

Due to its narrow role and limited powers, the Council in 2006 proposed an additional constitutional amendment to increase its powers under Article 22D of the Indonesian Constitution. The Council sought to strengthen its legislative power not only to submit bills related to regional interests, but also to approve or reject bills agreed upon by the House. It argued that such an amendment would guarantee the people’s sovereignty and strengthen the principle of checks and balances between state institutions. However, the proposed amendment was unsuccessful, as were two subsequent proposals.

Both the Council and the Court are products of sweeping constitutional reforms that took place in Indonesia following the May 1998 fall of long-serving president Soeharto after 32 years in power. The Council was established in response to calls for a decentralization of power. Although initially envisaged by reformists as a counterbalance to the House of Representatives, the Council can only submit bills related to the regions, but cannot approve or veto bills.

Another effort pursued by the Council was the enactment of Law No. 27 of 2009 on the People’s Consultative Assembly, the House of Representatives, the Regional Representative Council and the Regional Houses of Representatives (hereinafter the Parliamentary Law of 2009). It gave the Council a role in discussing certain draft laws at the initial phase of the law-making process, even though the Council still could not participate in the decision-making process. The Parliamentary Law of 2009 also allowed the Council to establish representative offices in the capital city of each province to strengthen regional autonomy and the unitary state system through the principle of decentralization. Despite this institutional strengthening, the Council’s role remained sub-optimal as it lacked equal footing with the House on law-making. Therefore, the Council and the public sought to strengthen the Council’s role and powers by submitting judicial reviews to the Constitutional Court.

This article explores the following research question: has the mechanism of judicial review strengthened the Council’s role and powers? In order to answer this question, this article examines the political context and maneuvers behind the formation of the DPD, the role of the Constitutional Court, and then investigates three exploratory case studies involving the Constitutional Court’s responses to submissions for judicial review pertaining to the Council.

The parameters used to assess the success of the judicial review mechanism, in terms of strengthening the DPD, are both procedural processes and outcomes. Procedural aspects include the submission and acceptance of cases, while substantive aspects include the changes that have taken place within the DPD as a result of the Court’s rulings.

The Council’s Troubled Establishment and Weak Powers

This section provides a legal-normative description of the Council, by first looking at the circumstances that led to its inception. After more 300 years of Dutch colonization, Indonesia declared its independence on August 17, 1945, and promulgated its first Constitution the following day. This Constitution initially adopted the principle of an integralist state, which means there should be no conflict between the state and the individual, as all citizens must contribute to the good of the nation (Bourchier, 2019, p. 716; Lindsey, 2008, p. 29). Subsequently, significant powers were granted to the People’s Consultative Assembly (Majelis Permusyawaratan Rakyat, hereinafter the Assembly) which was the state’s highest institution for over five decades under founding President Soekarno (1945-1966) and his successor, Soeharto (1966-1998). However, the legislative function was exercised by another state institution, the House of Representatives, while the executive function was undertaken by the President, chosen by members of the Assembly elected by the people through a general election (Ellis, 2004, p. 497).

Under Soeharto, the Assembly served as a rubber stamp for the president’s policies and dutifully elected him uncontested for seven consecutive 5-year terms (Kingsbury, 2002, p. 59). Prior to the commencement of the reform era in 1998, the institutional structure of the Assembly consisted of the 500-member House (which included presidential appointees from the military and police), as well as 200 presidential appointees from regional groups and so-called “functional groups,” the latter being ostensibly non-political and non-governmental organizations (Indrayana, 2008, p. 114). Despite this structure, Indonesia was still classified as unicameral, as legislative power was clearly held by the House (Tsebelis & Money, 1997, p. 45). A main criticism of the unicameral legislature is that it allows unbalanced policies or “majority tyranny” (Riker, 1992, p. 100)

Following Soeharto’s resignation amid popular demands for political reform, the Assembly conducted a series of four amendments of the Constitution from 1999 to 2002. The results fundamentally changed the Constitution, creating a democratic political system. The amendments formed various new state institutions, such as the Regional Representative Council, the Constitutional Court, and the Judicial Commission (Harijanti & Lindsey, 2006, p. 138). In response to calls for the decentralization of power, the composition of the Assembly itself was changed by the third amendment. It powers has greatly diminished, including its position as the state’s highest institution (Rich, 2013, p. 170).

During the third amendment process, there was robust debate among the Assembly factions. Some argued the Assembly must remain comprised of the House, the regional groups and the functional groups. Others suggested the seats reserved for the functional groups should be abolished and replaced by a new institution of directly elected regional representatives, thereby giving Indonesia a bicameral system. Opponents asserted that having a strong bicameral system could give rise to federalism, which in Indonesian political culture has been equated to separatism (Horowitz, 2013, p. 66). As the factions could not reach a consensus, the debate was resolved through a vote by Assembly members. It decided the Assembly shall comprise the House as the first chamber and a Regional Representative Council as the second chamber, with all members elected by the people through direct general elections. This composition is stipulated in Article 2 paragraph (1) of the amended Constitution.

The House reflects a political representation, while the Council reflects a regional representation. Despite this ostensible bicameralism, the Council is only one-third the size of the House and lacks equal powers. This limited authority was a compromise between groups who wanted strong bicameralism and groups who disapproved outright of the establishment of the Council. Historically, proposals for the formation of a council of regional representatives predate Indonesia’s independence, as the idea was first raised at the Indonesian Youth Association Conference on January 31, 1941. It was suggested that power be held by two assemblies of elected members, including representatives of regions and groups (Yamin, 1959). Both Soekarno and Soeharto instead opted for a unicameral legislature, over which they wielded considerable control until their respective downfalls.

The Council was established on October 1, 2004, as a requirement of the third constitutional amendment, passed on November 9, 2001. It is intended to facilitate regional interests and issues, considering that Indonesia has a wide distribution of regions, namely 34 provinces, 415 regencies, and 93 cities. Members of the Council are elected by a direct general election held every 5 years and each province is represented by four delegates. Article 22C paragraph (2) of the Constitution states the number of Council members cannot be more than one-third the number of House members. Currently, the House has 575 seats, while the Council has 136 seats. Candidates for the Council are individuals, not political parties.

The Council has been described as subordinate and even irrelevant (Rich, 2011, p. 267) because in addition to being smaller than the House, it is involved only in the proposal and discussion stages of certain legislation, but is excluded from the crucial approval stage. Under Article 22D paragraphs (1) and (2) of the Constitution, the Council has the following powers:

• (1) The Regional Representative Council may propose to the House of Representatives draft laws related to regional autonomy, the relations of central and local government, formation, expansion and merger of regions, management of natural resources and other economic resources, and draft laws related to financial balance between the center and regions.

• (2) The Regional Representative Council participates in the discussion of draft laws related to regional autonomy; the relations of central and local government; formation, expansion, and merger of regions; management of natural resources and other economic resources, and financial balance between the center and the regions; and provides consideration to the House of Representatives over draft law on the state budget and on draft laws related to taxation, education, or religion.

The precise meanings of the word “may” in Article 22D paragraph (1) were clarified by the Constitutional Court in 2012 when the Council filed for a judicial review of its legislative power under laws on parliament and the establishment of legislation. Despite this clarification, which is examined later in this article, the term “may propose … draft laws” in Article 22D paragraph (1) is weaker than the direct authority granted to the House. The Constitution’s Article 20 paragraph (1) states, “The House of Representatives holds the power to make laws.” Moreover, Article 21 states, “The members of the House of Representatives have the right to propose draft law.” Constitutionally, the Council does not have strong legislative power. Indeed, Article 5 paragraph (1) and Article 21 of the Constitution stipulate the President and members of the House shall have the right to propose draft laws. In addition, the terms “discussion” and “provides consideration” in Article 22D paragraph (2), mean the Council’s authority is beneath that of the President and the House, which are fully involved in joint discussions and approval of draft laws (Isra, 2010, p. 257). Indonesia’s Law Number 12 of 2011 on the Establishment of Laws and Regulations clearly limits the Council’s role to submission of draft laws, as well as discussion of draft laws relating to regional matters and to the Council itself. Moreover, Article 20 of the Constitution states the power to make laws is held by the House. Thus, the Council is authorized only to submit draft laws, and the House determines whether those draft laws will be discussed or not. Simply put, the Council participates in the submission process, not in the decision-making process.

Due to the lack of clear provisions stating the Council has a legislative function, the House monopolizes legislative power in parliament (Isra, 2004). Therefore, the position of the Council is very weak in the legislative process. With the division of authority, the Council is designed to concentrate more on “supervising the implementation” of particular laws (Asshiddiqie, 2006, p. 138). The amended Constitution does not clearly state or directly regulate the powers and obligations of the Council. This differs from other state institutions, such as the Assembly, the House, and the President, whose powers and obligations are clearly regulated in the Constitution. The powers and obligations of the Council are regulated only in parliamentary law. Therefore, the Council has several obstacles in exercising its authority. The Council’s power in legislation is limited to proposing and discussing draft laws, instead of participating in the decision-making process. Consequently, the supervisory function is limited to offering proposals to the House for consideration. Also, there is no provision in the Constitution regulating the power of the Council to request information from state officials, whereas such a power is held by the House.

Under the present Indonesian system of parliament, the second chamber’s powers are very weak because the functions and authorities of the Council are limited to regional interests, such as regional autonomy, central and regional financial balances, expansion and integration of regions, and as well as the central and regional government relationship. These limited powers have little political significance, and the Council cannot do much about policy formation and implementation, even related to regional problems (Butt & Lindsey, 2018, p. 13). Indeed, this limitation can hinder the Council’s participation in building the nation-state. Consequently, it reduces parliament’s effectiveness in articulating the aspirations of the people.

If the original reason for the Council’s establishment was to develop a bicameral system with relatively balanced power-sharing with the House, then it can be said that Indonesia has flawed bicameralism. Although the Council has a strong legitimacy because the people elect its members through direct general election, the Council has no power to pass or reject legislation. In contrast, strong bicameralism would provide a combination of strong power and strong legitimacy to the second chamber, as in the U.S. Senate (Patterson & Mughan, 1999). In this context, Sherlock (2005, p. 9) aptly describes Indonesia’s parliamentary system after the constitutional amendments, as follows:

The DPD [Council] is thus a quite unusual example of a second chamber because it represents the odd combination of limited powers and high legitimacy. Its role in law-making is limited to certain areas of policy, its powers are only advisory and no Bill is actually required to pass through it in order to be passed, yet at the same time it has the strong legitimacy that comes from being a fully elected chamber. This combination does not seem to be replicated anywhere else in the world.

The Council’s quest to improve its power and relevance has so far met with mixed results, some of the most positive outcomes coming from judicial review submitted to the Constitutional Court. Despite this, the Court’s decisions have not been a panacea for the Council. This article will now briefly discuss the Constitutional Court’s power of judicial review, before making exploratory studies of three cases involving its responses to submissions for judicial review pertaining to the Council.

Judicial Review by the Constitutional Court

Indonesia adheres to a system of separation of powers. The three branches of government comprise several state organs whose powers are given directly by the Constitution. The executive branch is led by the President; legislative by the Assembly, the House, and the Council; and the judiciary by the Supreme Court and the Constitutional Court. Other state institutions are mentioned in the Constitution, but their powers are further regulated by national laws (Siahaan, 2005, p. 37). The establishment of the Constitutional Court was a fundamental reform toward democratization, as the Court takes over the Assembly’s function of interpreting the Constitution (Asshiddiqie, 2005, p. 58). It is also a phenomenon of the modern state in the 20th century. The Constitutional Court was established on August 13, 2003, as a requirement of the 2001 constitutional amendment. The Indonesian Constitutional Court has powers to review the constitutionality of laws, to decide dispute among state institutions, to decide disputes on electoral results, to dissolve political parties and to decide on the impeachment process of the president or the vice-president.

Article 24C paragraph (1) of the Constitution states the Constitutional Court’s decisions are final and binding. This means no other legal remedies can be taken after a decision is declared by the Constitutional Court. The binding principle means the Constitutional Court’s decisions are binding on all parties, including state officials, state institutions and the general public, so there is an obligation to comply with its decisions. However, the Court does not have power to enforce its decisions (Butt, 2015; Hendrianto, 2018).

The concept of judicial review of law was not regulated in the Constitution until the third constitutional amendment in 2001. The Assembly members involved in the amendment process agreed that a mechanism for review of law by a separate judicial institution was needed so that no laws would contradict the Constitution, thereby protecting citizens from unconstitutional laws (Faiz, 2016, p. 159). The Constitutional Court was also deemed necessary to uphold the principles of Indonesian rule of law and the principle of constitutionalism, (Omara, 2017, p. 189) signifying the enhancement of legislative order in Indonesia. Judicial review is a modern development in the democratic government system, based on the idea of the rule of law, the principle of separation of power, and the protection and promotion of human rights (Hausmaninger, 2003, p. 139). Judicial review counterbalances the policy-making power held by the executive and legislative branches. Theoretically, judicial review exercised by a court can fill any shortcomings left by the legislature in the law-making process. It can also develop judicial interpretation of legislation (Ely, 1981). In this context, legislation that has passed the judicial review process will receive stronger legitimacy, as it is based on court decisions that use standards of legal reasoning (Fallon, 2005).

The Constitutional Court has decided on several reviews of laws related to the Council’s position and authority. These decisions have affirmed the Council’s position in the constitutional system, such as the Council’s powers on legislation, the Council’s legislative function, and the requirements for Council candidates, who cannot be political party functionaries. Three relevant decisions of the Constitutional Court are examined in the following sections.

Council Legislative Power Case

In 2012, the Council, represented by its speaker and deputy speakers, challenged the constitutionality of the provisions on the Council’s legislative power regulated by the Parliamentary Law of 2009 and Law Number 12 of 2011 on the Establishment of Laws and Regulations (hereinafter the Establishment Law). The petitioner in Case Number 92/PUU-X/2012 (the Council Legislative Power case) argued the Parliamentary Law of 2009 and the Establishment Law had reduced the Council’s powers as a state institution with legislative authority equivalent to that of members, commissions, and joint commissions of the House. The petitioner said the Parliamentary Law of 2009 had systematically reduced the Council’s authority in the process of submitting a draft law. The petitioner also argued the Parliamentary Law of 2009 had distorted draft laws proposed by the Council by transforming them into draft laws proposed by the House. Additionally, they asserted the essence of the Establishment Law lowered the Council’s position to a secondary institution, below the House, because it eliminated the Council’s power to submit draft law.

In its decision on the case, the Constitutional Court affirmed the Council’s power to submit draft laws is confirmed in the Constitution. The Court considered the word “may” in Article 22D paragraph (1) of the Constitution constitutes a subjective choice of the Council “to propose” or “not to propose” draft laws related to its authority. In addition, the Court said the word “may” can also be interpreted as a right and/or authority, analogous, or equal to the President’s constitutional rights and/or authority to submit draft laws to the House of Representatives.

Also in the Council Legislative Power case, the petitioner argued the Establishment Law excluded the Council from the entire process of discussing draft laws, thereby denying the Council its authority. They said the Parliamentary Law of 2009 and the Establishment Law had nullified the Council’s authority to raise and discuss problems of draft laws. Likewise, provisions in the two laws were deemed to have reduced the Council’s power by stipulating that draft laws could be discussed without the Council’s involvement. According to the petitioner, the laws eliminated the Council’s authority because every draft law that comes under the Council’s jurisdiction should be discussed by the House, represented by its relevant commission; the President, represented by the relevant minister; and the Council, represented by its relevant members.

The Constitutional Court responded by stating the Council’s power to discuss draft laws is clearly regulated in Article 22D paragraph (2) of the Constitution. Thus, according to the Court, the discussion of draft laws must involve the Council from the outset of first-level discussions by the House special committee, including in delivering, submitting, and discussing problems, as well as submitting brief opinions at the final stage of first-level discussion. Then, the Council can express its opinion at the second-level discussion at a House plenary meeting, prior to the approval stage.

The Council Legislative Power case also covered the Council’s exclusion from the National Legislation Program, in which the House selects draft laws for priority discussion. The petitioner argued the Establishment Law nullified the Council’s authority to submit draft laws, both inside and outside the National Legislation Program. In its decision on the case, the Constitutional Court determined the Council’s participation in the preparation of the National Legislation Program is a consequence of Article 22D paragraph (1) of the Constitution. The Court said the preparation of the National Legislation Program is not separate from the Council’s power to submit draft laws.

The Court noted that draft laws excluded from the National Legislation Program are not a priority for discussion. Therefore, if the Council does not participate in determining the National Legislation Program, it is very likely the Council cannot exercise its authority to submit draft laws. Based on these considerations, according to the Court, the Council’s power had been reduced by its exclusion from the National Legislation Program.

In addition, the petitioner argued the provisions of the Parliamentary Law of 2009 had obscured the essence of the Council’s power in discussions of draft laws. Specifically, the House’s Budgetary Board was not taking the Council’s considerations on state budget draft laws. The Constitutional Court responded that Council can give considerations without participating in the discussion, and it is then the authority of the House and the President to approve or disapprove of the Council’s considerations in part or whole. The most important thing is the obligation of the House and the President to request the Council’s consideration on state budget draft laws, as well as draft laws on taxation, education, and religion.

Delivering its decision in the case, the Constitutional Court acknowledged the Council’s importance as a state institution with a substantial budget was not matched by its limited powers under the Parliamentary Law of 2009 and the Establishment Law. The Court said that without adequate power, the Council could be a disappointment to voters. The Court argued as follows:

…All provisions that reduce the Council’s powers in the two relevant laws, either applied or not applied by the petitioner but related to the Council’s powers shall be stated unconstitutional against the 1945 Constitution or conditionally unconstitutional against the 1945 Constitution if it is not in line with the understanding or interpretation given by the Court (Council Legislative Power Case. p. 250).

Thus, the Court concluded in this case that all provisions of the Parliamentary Law of 2009 and the Establishment Law which have reduced the constitutional functions, duties, and powers of the Council are unconstitutional.

Council Legislative Function Case

Following the Constitutional Court’s decision of 2012 in the Council Legislative Power case, the Parliamentary Law of 2009 was amended to become Law Number 17 of 2014 on the People’s Consultative Assembly, the House of Representatives, the Regional Representative Council and the Regional House of Representatives (hereinafter the Parliamentary Law of 2014). Despite the amendment of the law, the Council still felt excluded from its functions of discussing draft laws and controlling the implementation of certain laws on the regions, the state budget, taxes, education, and religion.

In Case Number 79/PUU/XII/2014 (the Council Legislative Function case), the Council, through its speaker, submitted a judicial review of the Parliamentary Law of 2014, which regulates the powers, duties, institutions, and procedures for submitting and discussing draft laws. According to the petitioner, the reason for reviewing the Parliamentary Law of 2014 was to optimize the Council’s legislative function as a mandate-holder of the Constitution in submitting, discussing, and giving consideration to particular draft laws. The petitioner also said the Council needed to apply checks and balances on representative institutions, as well as ensure the House practices democratic theory rather than “the cunning of a feudal system.” The petitioner argued that institutionally, the state requires legal certainty in law enforcement. Based on Article 22D paragraphs (1) and (2) of the Constitution, which is corroborated by the Constitutional Court’s decision in the Council Legislative Power case, as previously discussed, the Council has power to submit and discuss draft laws.

In the Council Legislative Function case, the Constitutional Court granted four petitions. First, the Court decided that Article 71 letter c of the Parliamentary Law of 2014 must be interpreted to mean the Council shall be involved in discussion of draft laws proposed by the President, the House, or the Council, if the draft laws pertain to interests of the regions. The Court said the Council shall also be involved in the law-making process before the House and the President make a joint agreement on such draft laws. Second, the Court said Article 166 paragraph (2) of the Parliamentary Law of 2014 must be interpreted that draft laws accompanied by supporting academic documents is to be submitted in writing by the Council speaker to the House speaker, and the President.

Third, Article 250 paragraph (1) of the Parliamentary Law of 2014 must be interpreted that in carrying out its duties and power referred to in Article 249, the Council has independence in preparing its budget as outlined in its programs and activities submitted to the President. This budget is to be discussed with the House in accordance with the applicable laws and regulations. Fourth, Article 277 paragraph (1) must also be interpreted that a draft law is submitted with a letter of introduction to the Council speaker, the House speaker, and the President.

Through this delineation, the Court’s decision has improved the Council’s function in legislation. Furthermore, this decision has also clarified the Council’s powers and roles in legislative function so it can better represent regional aspirations in the law-making process at the national level.

Council Membership Case

A provision on requirements to become Council candidates, regulated in Law Number 7 of 2017 on Elections (hereinafter the Election Law of 2017), was challenged before the Constitutional Court in Case Number 30/PUU-XVI/2018 (the Council Membership case). Interestingly, the petitioner in this case was not a Council member, but a citizen named Muhammad Hafidz. The law lists requirements that individuals must fulfill to be eligible to stand for election to the Council. Among the requirements is that they should have no “other work” that causes a conflict of interest with their duties as a Council member. Hafidz argued that the term “other work” was insufficiently clear to include functionaries of political parties. At the time the petition was filed, 78 members of the Council were concurrently from political parties. Hafidz said this dual role was a conflict of interest.

The Constitutional Court granted Hafidz’s petition. The Court ruled the provision did not have legally binding force as long as it was not interpreted to include political party functionaries. The decision effectively banned political party functionaries, from the lowest to the highest level of party organizational structure, from being nominated for the Council ahead of Indonesia’s 2019 general elections. There is an important distinction between political party members and functionaries. The Council members, according to the Court decision, may belong to political parties as members, but they cannot be functionaries or officials. The Court said that while the Election Law of 2017 does not explicitly prohibit political party functionaries from standing as Council candidates, the provision on “other work” contradicts the Constitution if it is not interpreted as prohibiting political party functionaries from running for the Council. The legal consideration given by the Court is as follows:

…If the Council membership has the possibility of coming from political party functionaries, then this condition will strengthen the phenomenon where political decisions directly related to regional interests, particularly in legislative policy, will be solely be in the hands of the party with political representation. This is clearly not in line with the spirit enshrined in the Article 22D of the 1945 Constitution (the Council Membership case, p. 48).

The Court noted the Council was established to better accommodate regional aspirations and interests in political decision-making at the national level. The Court further said the Council was designed to balance the House’s power to make laws with the President. Therefore, while the House comprises political parties, the Council members must not be political party functionaries. The Constitutional Court’s decision prevents political distortion in the form of double representation of political parties in law-making decisions. The Constitution states the Assembly consists of the House members and the Council members. According to Article 3 paragraph (1) of the Constitution, the Assembly has the power to amend the Constitution. The Constitutional Court stated that if Council members are allowed to be political party functionaries, there will be dual representation in the Assembly, where political parties represented in the House membership are also represented in the Council membership.

Moreover, the Constitutional Court reaffirmed the Council must be used for implementing the constitutional system, especially the institutions representing the regions. The Court elaborated with six points. First, the Council is a regional representation that strives for regional aspirations and interests within the national framework, as a form of checks and balances on the House, which is a political representation within the national framework. Second, any parliament can be categorized under two general systems, which are unicameral and bicameral.

However, the existence of the Council and the House, both of whose members are also members of the Assembly, is neither a unicameral nor a bicameral representation system, but a representation system distinctive to Indonesia. Third, even though the Council’s powers are limited, all of them are oriented to regional interests that must be defended nationally, based on the balance postulate between national and regional interests. Fourth, the Council members are elected through elections based on individual nominations, not through the election of political parties. Fifth, the Council’s existence cannot be separated from the presence of the regional representatives as one of the elements of Assembly. Sixth, the House and the Council have many fundamental differences as representative bodies.

The Constitutional Court’s decision on the Council Membership case, declared on July 23, 2018, means that party functionaries are no longer allowed to register as candidates for the Council. If they want to register, they must first resign as political party functionaries. The decision significantly changed the composition of Council members. In the 2014-2019 period, 78 (60%) of the Council’s 132 members were affiliated to political parties, where most of them were active party functionaries at the central level. Indeed, the previous speaker of the Council was the chairman of a political party in the House (Faiz & Winata, 2019, p. 535). However, since the 2019 general election, there were no political party functionaries as candidates or members for the Council. This change has reflected the basis of the Council as an institution of regional representation, rather than political parties’ representation.

Implications of the Constitutional Court’s Decisions

The Constitutional Court’s decisions on the Council Legislative Power case and the Council Legislative Function case constitute legal remedies sought by the Council to strengthen its powers and position in the law-making process. By enhancing the rights and authority of the Council, it is expected to channel greater aspirations toward increasing growth and development in the regions. These decisions also created legal precedent in Indonesian political history by strengthening the presidential system and efforts to build a stronger second chamber system after the amendments of the 1945 Constitution. The Court has enhanced the legislative power of the Council, which had been curtailed by the Parliamentary Laws and the Establishment Law.

Nonetheless, the Council’s powers are still limited to participation in submitting draft laws or involvement in the initial phase of the law-making process, as regulated in Article 22D of the Constitution. Construction of the constitutional interpretation made by the Constitutional Court through its decisions is that the Council has the same rights and powers as the House and the President in submitting draft laws and being fully involved in discussion of draft laws related to regional issues. Moreover, the Constitutional Court’s decision on the Council Legislative Function case has provided a guarantee of legal certainty for the Council in exercising its powers at the proposal and discussion stages of draft law. The decision has strengthened the Constitutional Court’s previous decision on the Council Legislative Power case, in guaranteeing the Council’s institutional independence. Furthermore, the Constitutional Court’s decision on the Council Membership case reinforced the nature of the Council as a constitutional organ that strives for regional aspirations and interests within the framework of national interests. It also strengthens the Council’s role in providing checks and balances against the House by avoiding conflicts of interest among Council members.

Based on those decisions of the Constitutional Court, Council members can optimize their role as representatives of regional interests in the law-making process. Moreover, the Constitutional Court’s interpretation of the Constitution has restored the essential meaning of the Council’s legislative function. In this context, constitutional amendment can be carried out through judicial interpretation. In this way, according to Wheare (1966), the text of the Constitution does not change, but Constitutional Court judges provide a new interpretation of the Constitution (Siregar, 2015).

The Constitutional Court’s decisions have also created a new paradigm in the state’s legislative function, namely not only the involvement of the House and the President but also the Council (Isra, 2013, p. 6). Thus, the implementation of the legislative function becomes a tripartite practice. Constitutionally, the new paradigm offered by the Constitutional Court not only clarifies the Council’s legislative function but also restores the meaning of “joint discussion” regulated in the Constitution. However, as long as the House and the President do not give the Council equal powers, it will remain difficult for the Council to optimize its function to propose and to discuss draft laws related to central and regional relations.

Conclusion

The Regional Representative Council as the second chamber was deliberately designed not to have equal power to the House of Representatives as the first chamber. Born of political compromise, the design meant the Council could not optimally carry out its powers and functions as a regional representative institution. The Council attempted to strengthen itself by proposing a fifth amendment to the Indonesian Constitution, specifically on provisions relating to the Council’s powers. However, these proposals were rejected by the People’s Consultative Assembly, which has the authority to amend the Constitution, as most of its members are House members, unwilling to cede their law-making power. Therefore, the Council sought to strengthen its powers by revising the Parliamentary Law. However, various provisions in the Parliamentary Law led to uncertainty and even further reduced the Council’s powers.

At this point, the Council began taking constitutional steps by submitting petitions to review the constitutionality of the Parliamentary Law before the Constitutional Court. As analyzed above, several Constitutional Court decisions clarified the Council’s functions and strengthened its powers in the law-making process. The Constitutional Court emphasized the Council has a role in the legislative process, starting from the submission of draft laws to full involvement in the discussion process. Even so, the Council has not gained power to approve or reject draft laws because the Constitution explicitly gives that power to only the House and the President.

In addition, the Constitutional Court has rectified the constitutional design of the Council as a regional representative institution, not a representative institution of political parties. This was done by interpreting the requirement for the nomination of Council members not to be political party functionaries. Previously, the large number of Council members who are political party functionaries had caused the Council’s regional representation function to overlap with the House’s political representation function. Thus, rather than pursuing a fifth constitutional amendment, which has been rejected three times since 2006, interpretation through judicial review at the Constitutional Court has proved to be a more effective way of strengthening the powers and the function of the Council.