But what if you did?
This question was raising after the change of the chairmanship of the Indonesian Regional Representative Council (DPD) last week which was attended by the Vice CJ of the Indonesian Supreme Court (MA). There was nothing special in the installment of the DPD’s chairmen and it was the task of MA to take the oath of the new challenging chairmen, as MA has tried to explain afterwards, but it seems that the clarification would be to no avail.
For people who follow the conflicts within DPD begin this year, or even since last year, it was clear that there was an unsmooth transition for the position of chairmen. This became very political at the first place, because the challengers have attempted to revise the internal regulation of DPD in order to legitimate their maneuver to take over the chairmanship. According to the existing rules of order at that time, the chairmanship would endure for a period of five years – just like other representative councils in the country, but the challengers have forced it to be changed in two and halve years.
Such a revision is possible to made politically, but it would be – and it was – shaking the institutional stability. The internal political situation is still not known by many, but it seems to be a neck-and-neck competition. In short, it was a rude race (literally) between the supporters of the existing chairmen and its challengers in which one or two fight incidents were taking placing in the council building. For such a honorable position, however, the question would still be: can the taking-over-maneuver also be legitimized or, in other words, be deemed as in compliance with law?
That was the question asked by DPD members who supported the incumbent to MA, in their judicial review requests to MA in January. Two requests were submitted, though it was all related to the revision of the internal regulation.
In the first request, MA has decided that the (new) internal regulation was illegal, since it was on contrary to the similar rules for representative councils related to term of office (Case No. 20 P/HUM/2017). MA has also stressed that DPD members are not nominated by political parties, so there are ‘no political factions in DPD’ and ‘it would not be appropriate to rotate the chairmanship, as it would give a (wrong) impression of sharing power’. Furthermore, the petitioners claim that the rules might not be applied retrospectively, since a regulation, according to law, shall not work retrospectively. This point has also been confirmed by MA, as the law stipulates a non-retrospective working of regulations, including that regulation of DPD.
In the second request, the legality of the rule-making procedure in DPD was questioned. The petitioners have mainly referred to the deliberation in establishing the new internal regulation which did not meet the quorum as required by the law (Case No. 38 P/HUM/2016). MA has granted the request, as it found that only 63 of 131 members were involved in the deliberation. This was 3 less than the quorum required by law.
So far, it is clear that MA, on the requests of a number of DPD members, has annulled the new DPD internal regulation on the term of office. However, the conflict in DPD has been started again last month. In the beginning some DPD members (the supporters of the challenging chairmen) was questioning a typo in the MA decisions, but later – even after the typo has been repaired – the challenging chairmen are still installed.
As already told in the beginning, the new challenging chairmen are sworn in by the Vice CJ. MA is therefore involved in the conflict in a confusing way, on the one hand it has confirmed the illegality of the challenging chairmen, but on the other hand it has legitimized their office officially. The former existing chairmen are still fighting against their overthrow. One can certainly wonder whether MA, or the law, will still be of value in this case.