JAKARTA, KOMPAS – The Constitutional Court on Wednesday (5/4) decided that the attempts by governors and the home minister to annul problematic regional regulations or bylaws are unconstitutional and therefore not legally binding. It is feared that the Constitutional Court ruling, which orders all annulment of bylaws to be done by the Supreme Court, could make it difficult to annul problematic bylaws related to investment or social harmony in the regions.
In the conclusion of a judicial review of Law No. 23/2014 on regional administration, the panel of Constitutional Court judges presided over by chief justice Arief Hidayat said that Article 251, paragraphs 2, 3 and 4, which gives the minister and governors, as the representatives of the central government, the authority to annul regency and city bylaws, runs against the 1945 Constitution.
The panel of justices, in its consideration, said that the articles deviate from the logic and foundation of Indonesia as a rule-of-law state, as mandated in Article 1 paragraph 3 of the Constitution. They also said the granting of the authority negated the role and function of the Supreme Court as the institution that has the authority to review legislation, as regulated in Article 24A paragraph 1 of the Constitution.
Furthermore, the justices were of the opinion that the annulment of regency and city bylaws, which are legislative products, through a decision of a governor would be wrong. This could cause conflicting court verdicts because legal appeals would be pursued through the State Administrative Court while reviews of local bylaws would be done through the Supreme Court. Therefore, the panel of justices believed that Article 251 paragraph 8 of the Regional Administration Law on regency and city bylaws is against the 1945 Constitution.
However, four constitutional court justices, namely Arief Hidayat, I Dewa Gede Palguna and Maria Farinda Indrati and Manahan MP Sitompul, expressed a dissenting opinion. When reading out this opinion, I Dewa Gede Palguna said that Article 251, paragraphs 2, 3, 4, and 8, did not contradict the Constitution.
“In the NKRI (the Unitary State of the Republic of Indonesia), there is a single system for governments both on the central and regional level. Therefore, in a unitary state, the autonomy given to regions cannot be understood as the basis to ignore the principles of a unitary law,” he said.
Andi Syafrani, a lawyer for the petitioners, which included the Indonesia Regency Administrations Association, 40 regents, Regional Legislative Council members and members of the public, said that the Constitutional Court ruling means that regency and city bylaws can no longer be annulled by governors or the home minister. “The court ruling stressed that bylaws are within the judicative realm and therefore the annulment of a bylaw is under the authority of the Supreme Court,” Andi said.
The president director of Regional Autonomy Watch (KPPOD), Robert Endi Jaweng, said that the Constitutional Court ruling will make it more difficult to annul problematic bylaws, such as those related to investment or taxes or even those that are discriminatory. This is because the Supreme Court is generally passive and waits for a lawsuit to be filed against a bylaw, which is different to the way of the home minister or governors operate since they can actively look for problematic bylaws and annul them.
He said this is a shame considering that a KPPOD study has found about 50.5 percent of the 1,082 bylaws reviewed by the KPPOD to be problematic, including those that are discriminatory. “Now, businesspeople and civilians must be more active. Without a lawsuit, bylaws will continue to be an institutional instrument of discrimination, extortion and the licensing regime,” he said.
(GAL)
