Vol.4, No.06, Juni 2023

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P-ISSN: 2723-6595

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Jurnal Indonesia Sosial Sains, Vol. 4, No. 06, Juni 2023 545

Right to Recall Political Representatives: Legal

Audit of Article 85 passage (1) letter c of Regulation

Number 22 of 2003 and Article 12 letter b of

Regulation Number 31 of the year 2002

Ngateman

, Endang Kusuma Astuti

Universitas Darul Ulum Islamic Centre Sudirman GUPPI, Indonesia

Email: [email protected]

, [email protected]

Corresponding Author: [email protected]

ARTICLE INFO

ABSTRACT

Keywords: Legal Review;

Recall Rights; Political

Representative; Member of

the DPR.

The overall game plans for pardoning people from the DPR are

contained in Article 22 B of the 1945 Constitution of the Republic of

Indonesia read "Individuals from the DPR can be excused from

office, the circumstances and systems for which are controlled in

regulation" and afterward managed further in Regulation Number

17 of 2014 concerning Individuals' Consultative Get together,

Individuals' Delegate Gathering, Territorial Agent Chamber, and

Local Individuals' Agent Committee (MD3) and Regulation Number

2 of 2008 concerning Ideological groups. In the legal literature in

Indonesia which regulates dismissal and replacement between

members of the DPR, political parties have a great role in it. Where

these guidelines are contained in Article 239 section (2) letter d of

Regulation Number 17 of 2014 concerning Individuals' Consultative

Gathering, Individuals' Agent Committee, the Territorial Agent

Board, and the Local Nation's Agent Chamber expressed that

ideological groups can choose individuals from Individuals' Agent

Board who comes from the ideological group itself to be excused.

Regarding legal regulations like this, it can be said that political

parties have an active role in monitoring members of the DPR.

Attribution-ShareAlike 4.0 International (CC BY-SA 4.0)

1. Introduction

A review is for the most part perceived as the withdrawal of an individual from

Individuals' Delegate Chamber (DPR) to be excused and consequently supplanted

with one more part before the term of office of the removed individual from the DPR

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closes. (Nurhadi, 2019) Another well-known statutory is called interim replacement

(PAW), while the word "rights" can be interpreted as those who have the authority

to carry out the recall.

The fundamental arrangements for excusing individuals from the DPR are

contained in Article 22 B of the 1945 Constitution of the Republic of Indonesia which

examines "Individuals from the DPR can be excused from office, the circumstances

and methods for which are controlled in regulation" which are then managed

further. in Regulation Number 17 of 2014 concerning Individuals' Consultative Get

together, Individuals' Agent Chamber, Provincial Delegate Board, and Local

Individuals' Delegate Committee (MD3) and Regulation Number 2 of 2008

concerning Ideological groups (Zikri & Zuhri, 2018).

Referring to the legal literature in Indonesia which regulates the dismissal and

interim replacement of members of the DPR, political parties have a big role in it.

Where these standards are contained in Article 239 passage (2) letter d of

Regulation Number 17 of 2014 concerning Individuals' Consultative Gathering,

Individuals' Agent Board, the Local Delegate Chamber, and the Territorial Nation's

Delegate Committee which expresses that ideological groups can name individuals

from Individuals' Delegate Board who comes from the ideological group itself to be

excused. Regarding legal regulations like this, it can be said that political parties

have an active role in terms of monitoring members of the DPR.

As a rule, ideological groups are members in an overall political race that

choose individuals from the DPR. This recommendation is explicitly expressed in the

Alterations to the 1945 Constitution. Article 22E passage (3) of the 1945

Constitution expresses that members in the overall political race to choose

individuals from Individuals' Delegate Gathering and individuals from the Local

Nation's Agent Chamber are ideological groups. This shows that the position of a

DPR part is a command given by an ideological group.

Such a legal construction between political parties, the DPR, and members of

the DPR raises further issues, namely whether membership of a person as a member

of the DPR is the absolute authority of a political party that incidentally participates

in elections or does each member of the DPR have independence apart from their

political party, and can a DPR member be recalled by a political party that has

endorsed him as a member of parliament?

This issue was then utilized as material in the appeal for audit of Article 85

passage (1) letter c of Regulation Number 22 of 2003 concerning the Piece and

Position of Individuals' Consultative Get together, Individuals' Delegate Gathering,

the Territorial Agent Board, and the Provincial Nation's Agent Committee; and

Article 12 letter b Regulation Number 31 of 2002 concerning Ideological groups

against the 1945 Constitution.

Recall or what the Political Party Law refers to as an interim replacement by

political parties before their term of office expires is submitted to the Constitutional

Court by a member of the DPR, specifically Djoko Edhi Soetjipto Abdurahman. Djoko

Edhie recorded a legal survey specifically on the arrangements of Article 85 section

(1) letter c of Regulation Number 22 of 2003 concerning Susduk and Article 12 letter

b of Regulation Number 31 of 2002 concerning Ideological groups which was

proclaimed on July 31, 2003. Article 85 passage (1) letter c The Susduk Regulation

expresses that “Individuals from the Place of Agents prevent every once in a while

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in light of the fact that: c. proposed by the ideological group concerned. Though

Article 12 letter b of the Ideological group Regulation expresses that, "Members of

political parties who are members of the people's representative institutions can

have their membership terminated from the people's representative institutions if:

b. dismissed from membership of the political party concerned for violating the

statutes and bylaws.”

It is the most raised guideline in the country and state where the 1945

Constitution manages the connection between the public authority and its state and

relations between government foundations so the Constitution The Republic of

Indonesia of 1945 (1945 Constitution) can be supposed to be the constitution of the

Republic of Indonesia. The constitution of a nation manages the accompanying

issues: a) Determines the limitation of the powers of state organs, b) Regulates the

relationship between state institutions one another, and Regulates the relationship

of power between state institutions and citizens (Ahmad & Nggilu, 2019) d) The

matters that are broadly regulated in the constitution are the implementation of the

goals of the formation of the country, where every country in the world is formed

having different goals, namely the goals of the nation in the life of the state. Country

destinations vary accordingly with the views of the people on the nation and the

outlook on life that underlies it.[4]

All as a rule, the objectives of the state are specified in the constitution or the

fundamental laws of the nation concerned, one of which is that the reason for the

development of the Indonesian state is expressly expressed in the preface to the

1945 Constitution of the Republic of Indonesia (1945 Constitution), which is

contained in the fourth section which states: 1) safeguard the whole Indonesian

country and Indonesia's carnage; 2) advance public government assistance; 3) teach

the existence of the country; and 4) partake in completing world request. In the 1945

Constitution of the Republic of Indonesia (1945 Constitution), the extension and

meaning of the law are not extremely clear. Article 20 of the 1945 Constitution just

notices the power of the DPR to settle on regulations by common concurrence with

the public authority. Article 24 C passage (1) just specifies that the Protected Court

has the position to analyze regulations against the Constitution (Munawar et al.,

2021). Hence, it is important to complete the question of looking into the material

on the option to review the 1945 Constitution of the Republic of Indonesia and

survey it once more (Febriansyah, 2016).

Hence, this exploration will talk about the Legitimate Audit of the Option to

Review Article 85 section (1) letter c Regulation Number 22 of 2003 concerning the

Sythesis and Position of Individuals' Consultative Gathering, Individuals' Delegate

Board, the Territorial Agent Gathering, and the Local Nation's Delegate Gathering;

and Article 12 letter b Regulation Number 31 of 2002 concerning Ideological groups

against the 1945 Constitution.

From the foundation of the above issues can be tracked down a plan of the

issue, to be specific; How is the execution of legal survey of the option to review

Article 85 section (1) letter c Regulation Number 22 of 2003 concerning the

structure and position of Individuals' Consultative Gathering, Individuals' Delegate

Chamber, the Territorial Delegates Gathering, and the Provincial Nation's Agent

Gathering; and Article 12 letter b Regulation Number 31 of 2002 concerning

Ideological groups against the 1945 Constitution.

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2. Materials and Methods

The technique utilized recorded as a hard copy this applied paper is the

distinct logical strategy, to be specific by utilizing information that plainly portrays

the issues straightforwardly in the field, then, at that point, the examination is

completed and afterward closed to unwind an issue. Strategies for information

assortment through perception and writing study to acquire critical thinking in the

planning of this paper. In line with the research objectives to be achieved, the realm

of the research is included in qualitative research, thus a qualitative approach will

be used. According to Petrus Soerjowinoto et al., a qualitative method is a method

that emphasizes the process of understanding researchers on the formulation of

problems to construct a complex and holistic legal phenomenon.

Regulating juridical methodology, to be specific the juridical methodology

strategy used to look at issues from a lawful and legal point of view, namely rules

that can be used as a basis for studying problems and their legal consequences

(Qamar & Rezah, 2020), for this situation specifically Regulation Number 22 of 2003

concerning Arrangement and The place of Individuals' Consultative Gathering,

Individuals' Delegate Committee, the Territorial Agent Board, and the Provincial

Nation's Agent Chamber; and Regulation Number 31 of 2002 concerning Ideological

groups.

The standardizing juridical methodology is completed on specific legal

guidelines or composed regulations, which are connected with the Execution of the

Administrative Elements of the DPR In light of the Point of view of the 1945

Constitution of the Republic of Indonesia Post Alteration. This study portrays the

state of the item under study, specifically zeroing in on guideline and on the

Execution of the Legal Audit of the Option to Review Article 85 section (1) letter c of

Regulation Number 22 of 2003 concerning the Piece and Position of Individuals'

Consultative Gathering, Individuals' Agent Board, the Provincial Delegate

Committee, and Local Individuals' Agent Gathering; and Article 12 letter b

Regulation Number 31 of 2002 concerning Ideological groups against the 1945

Constitution (Subagiyo et al., 2017).

3. Results and Discussions

Core Matters of the Right of Recall

Democracy is a government by the people where the power of the majority

of citizens is exercised. In a modern democracy, the democracy that is carried out

is through representation, where the people choose their representatives,

according to democratic principles the highest decision in the government of the

country rests in the hands of the people through the intermediary of the

Representative Body, the Community Members who represent them are called

Political Representatives. (Samosir, 2021) In general, the development of political

parties runs linearly with the development of democracy, in terms of the

expansion of people's voting rights and the expansion of parliamentary rights

(Zolberg, 2015)

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Recall or what is called by the Political Party Law as an inter-term change by

a political party before the end of its term of office is submitted for testing to the

Constitutional Court by one of the members of the DPR, namely Djoko Edhi

Soetjipto Abdurahman. Djoko Edhie submitted a material test specifically against

the provisions concerning Parpol which was promulgated on July 31, 2003.

Article 85 paragraph (1) letter c of the Susduk Law states that "Members of

the DPR cease between periods because: c. proposed by the political party

concerned." Whereas Article 12 letter b of the Parpol Law states that, "Political

party members who are members of the people's representative body can be

dismissed from the people's representative body if: b. dismissed from the

membership of the political party concerned for violating the basic budget and the

household budget."

There are several arguments from the applicant to submit the test of the second

article against the 1945 Constitution, among others:

1. Whereas in light of the arrangements of Article 85 passage (2) letter b of

Regulation Number 22 of 2003 and Article 12 of Regulation Number 31 of

2002 concerning Ideological groups, DPR individuals who don't meet the

prerequisites as possibility for DPR individuals as alluded to in the law on

Races General (counting Article 62) excused before the finish of his term of

office (interval substitution), the position to excuse him is the power of the

DPR Morals Gathering as specified in Article 85 section (4) of Regulation

Number 22 of 2003 concerning the Susduk of the MPR, DPR, DPD, and DPRD,

and not the power Ideological groups.

2. Likewise Article 12 point c of Regulation Number 31 of 2002 concerning

Ideological groups expresses that individuals from ideological groups who are

individuals from individuals' agent organizations can be excused assuming

that they abuse regulations and guidelines, which has been obliged by Article

85 section (2) letter d and letter e Regulation Number 22 of 2003, the power

to excuse it is the power of the DPR administration as specified in Article 85

passage (3) of Regulation Number 22 of 2003, and not the power of ideological

groups

3. Whereas based on the above arguments it is clear and unequivocal that the

provision which states "Members of the DPR stop temporarily because: c.

proposed by the political party concerned” in Article 85 section (1) letter c of

Regulation Number 22 of 2003 concerning Susduk and Article 12 letter b of

Regulation Number 31 of 2002 concerning Ideological groups is an immense

excusal standard, namely giving subjective rights to political parties and party

administrators who can give rise to the arbitrariness of political parties

towards their members who are members of the DPR but who are not in line

or have different opinions in conveying or voicing the aspirations of

constituents or the electorate, can even occur because of the likes and dislikes

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of the political party management towards its members who become a

member of the DPR because of acting/ being vocal and/or trying to reveal bad

things that touch the personality of the Management of the Political Party in

question;

4. Whereas the arrangements of Article 85 passage (1) letter c of Regulation

Number 22 of 2003 and Article 12 letter b of Regulation Number 31 of 2002

concerning Ideological groups will additionally appear into an activity that is

contrary to the standards of a majority rules system, limiting the rights of DPR

members in gives moral and political accountability to constituents and

castrates their political rights in carrying out the duties entrusted by their

constituents, and violates the principle of legal certainty.

As for the applicant's argument, the government is of the opposite opinion,

namely:

1. That the presence of ideological groups in Indonesia should be founded on the

arrangements of Regulation Number 31 of 2002 concerning Ideological

groups, starting from the terms of establishment, rights, and obligations to

membership and sovereignty of members of political parties. Thus a citizen

who elects and joins (let alone becomes an administrator) a certain political

party then voluntarily submits himself, is bound by and approves the statutes

and bylaws (AD/ART) of the political party concerned (vide Article 10 and

Article 11 Law Number 31 of 2002 concerning Political Parties);

2. Whereas every DPR member, even though he is directly elected by his voters

(constituents) in his constituency, his candidacy is proposed by a certain

political party, and the legislative candidate is a member of a political party,

in other words "without a political party someone cannot become a member

of the DPR". Besides that, each member of the DPR is incorporated in a

"Faction" which is a representation of the existence of political parties in the

DPR;

3. in the setting of maintaining the power and uprightness of ideological groups,

ideological groups can propose to the authority of the DPR to excuse (review)

individuals from ideological groups who are individuals from the DPR,

because they are deemed to have violated the statutes and bylaws (AD/ART)

of political parties (Article 12 letter b of Law Number 31 of 2002 junction

Article 85 paragraph (1) letter c of Law Number 22 of 2003);

4. Whereas the proposition to excuse an individual from an ideological group

who is an individual from the DPR was not completed with no obvious end

goal in mind, in light of the fact that before the proposition for excusal as an

individual from the DPR by the ideological group concerned or the excusal

cycle by the initiative of the DPR, the person concerned was given the right to

defend himself, this was meant to prevent the tyranny and arbitrariness of

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political parties in recalling their members from membership in the DPR. The

recall institution is also not intended for unlimited domination of political

parties (tyranny of political parties) but must be placed within the framework

of proportionality and objectivity according to the provisions of the applicable

laws. The review organization plans to regulate (control) individuals from

ideological groups who are individuals from the DPR, which thus is supposed

to work on the presentation, responsibility, and uprightness of the individuals

from the DPR themselves.

Decision of the Constitutional Court Regarding the Judicial Review of the

Right to Recall

The change in recall arrangements occurred when the general election was

about to enter in 2004. The 2003 political package law, specifically Regulation no.

31 of 2002 concerning Ideological groups, Guideline no. 22 of 2003 concerning

the Association and Position of the MPR, DPR, DPD, and DPRD, as well as

Regulation no. 13 of 2003 concerning General Races for Individuals from the DPR,

DPD, and DPRD controls the request for this review. The recall system in the

Susduk Law is known as an interim replacement (PAW). Even though the

meaning of recall is not the same as the meaning of interim replacement, however,

intertemporal replacement includes recall.

It was explained that when the norms of Article 12 letter of Law Number 31

of 2002 were enacted in conjunction with Article 85 paragraph (1) letter c of Law

Number 22 of 2003, at that time the members of the DPR were overwhelmed with

anxiety because there was a case where a member of a political party was

dismissed, but could not be recalled at that time, while there were demands from

the public that they wanted members of the MPR, DPR, DPD, and DPRD to be

accountable to the people. Members of the DPR who are deemed to be less

committed or to have violated the constitution, statutes, and bylaws of each

member of a political party must go through a process of examination and

verification regarding alleged violations or obligations imposed by members of

the party, in general, parties have an Honors Board. This shows that termination

as a member of a political party that causes a recall as stipulated by law or a

change of time, cannot be done arbitrarily and of course must go through the

corridors of the law.

The Protected Court in its choice Number 008/PUU-IV/2006 which was

perused out on 21 September 2006 chose to dismiss the candidate's all's

applications. Concerning the lawful contemplations of the board of judges,

expressing that overall races are held like clockwork doesn't actually intend that

during those five years, it is unimaginable to totally supplant individuals from the

DPR, DPD, DPRD, as well as the president and VP who are chosen in the overall

political decision. Albeit the president and VP are chosen for a five-year term, the

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1945 Constitution likewise specifies conditions and methods that open up the

likelihood that a president as well as VP might leave before their term of office

closes, as specified in Article 7B and Article 7C of the Constitution. 1945. Article

22B of the 1945 Constitution it is expressed that individuals from the DPR can be

excused from office, the terms and methodology of which are directed by

regulation.

The Sacred Court is additionally of the assessment that the presence of Article

85 section (1) letter c of the Susduk Regulation, and Article 12 letter b of the

Ideological group Regulation doesn't dispense with the privileges of each and

every individual as ensured by Article 28C passage (2) of the 1945 Constitution.

The option to battle aggregately for building society, the country, and the state

isn't deciphered as the appropriate for everybody to become individuals from the

DPR or keep on becoming individuals from the DPR. The DPR is a group's delegate

foundation in the sacred framework laid out by the 1945 Constitution. If Article

28C passage (2) of the 1945 Constitution is deciphered as the option to turn into

an individual from the DPR it will limit the significance of Article 28C section (2)

since this right is just claimed by a couple of individuals, specifically just a few

DPR individuals. Article 28C section (2) is expected to give everybody the right to

uninhibitedly along with others (on the whole) to foster society, country, and

state. In this manner the contention of the candidate expressing that Article 85

section (1) letter c of the Susduk Regulation and Article 12 letter b of the

Ideological group Regulation is in opposition to Article 28C passage (2) of the

1945 Constitution is unfounded on the grounds that the candidate has not lost his

entitlement to propel himself in battling for his privileges all in all to assemble the

local area, country, and state ensured by Article 28C section (2) of the 1945

Constitution.

The Constitutional Court is also of the opinion that the recall right is

essentially not contrary to democracy but is instead intended to maintain a

relationship between the represented and the represented. In the act of delegate

a majority rule government, different varieties of review freedoms utilizations

can happen. It doesn't mean dispensing with the significance of a delegate a

majority rules government framework. Assuming by and by there is a deviation

from the use of the review right, then this isn't a situation mistake so not the

framework must be forfeited, yet the training that should be revised. Article 12

letter b of the Ideological group Regulation isn't an arrangement that remains

solitary. This arrangement is connected with different arrangements of the

Ideological group Regulation itself, specifically the arrangements administering

the privileges of ideological groups, as specified in Article 8 of the Ideological

group Regulation which, in addition to other things, expresses that ideological

groups reserve the option to propose the break substitution of their individuals

in individuals' agent establishments by legal guidelines (vide Article 8 letter f of

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the Ideological group Regulation) and has the option to excuse its individuals in

individuals' delegate organizations by legal guidelines (vide Article 8 letter g of

the Ideological group Regulation). The introduction of the privileges of such

ideological groups is an outcome of the necessity to "support the rules and

ordinances of the party" for each resident who wishes to turn into an individual

from an ideological group [vide Article 10 section (2) of the Ideological group

Law]. Thusly, when a resident has turned into an individual from an ideological

group - and that implies that the individual concerned has acknowledged the

condition "endorse the party's rules and ordinances" as alluded to in Article 10

passage (2) of the Ideological group Regulation - then As a result, the law then

forces a commitment on the individual worried to follow the party's resolutions

and ordinances.

4. Conclusion

The change in recall arrangements occurred when the general election was

about to enter in 2004. The 2003 political package law, namely Law no. 31 of 2002

concerning Political Parties, Law no. 22 of 2003 concerning the Composition and

Position of the MPR, DPR, DPD, and DPRD, as well as Law no. 13 of 2003 concerning

General Elections for Members of the DPR, DPD, and DPRD regulates the order of

this recall. The recall system in the Susduk Law is known as an interim replacement

(PAW). Even though the meaning of recall is not the same as the meaning of interim

replacement, however, intertemporal replacement includes the recall.

The Established Court expects that the presence of Article 85 section (1) letter

c of the Susduk Regulation, and Article 12 letter b of the Ideological group Regulation

doesn't wipe out the privileges of each and every individual as ensured by Article

28C passage (2) of the 1945 Constitution. The right to fight collectively for

community development, nation, and state is not construed as the people's right to

become the DPR or continue to become members of the DPR. The DPR is a group's

delegate organization in the protected framework laid out by the 1945 Constitution.

In the event that Article 28C section (2) of the 1945 Constitution is deciphered as

the option to turn into an individual from the DPR it will limit the importance of

Article 28C passage (2) since this right is just claimed by a couple of individuals,

specifically just a few DPR individuals. Article 28C section (2) is expected to give

everybody the right to unreservedly along with others (aggregately) to foster

society, country, and state. In this manner the contention of the candidate

expressing that Article 85 passage (1) letter c of the Susduk Regulation and Article

12 letter b of the Ideological group Regulation is in opposition to Article 28C section

(2) of the 1945 Constitution is unfounded on the grounds that the candidate has not

lost his entitlement to propel himself in battling for his privileges all in all to

fabricate the local area, country, and state ensured by Article 28C section (2) of the

1945 Constitution.

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