After the presidential and vice presidential elections, the idea emerged to restore the position of the People’s Consultative Assembly (MPR) as the highest state institution, and the MPR had the authority to determine State Policy Guidelines (GBHN). This idea is not new because previously there was an idea to make the MPR the highest institution, and indeed in the history of our administration, the MPR was the highest institution before the Amendment to the 1945 Constitution (UUD).
The author is interested in elaborating on the MPR’s position as the highest institution, especially Soepomo’s initial idea and its relevance to the current era of constitutionalism.
The MPR has a strategic position and authority in our constitutional system, which is based on Article 3 of the 1945 Constitution which clearly states “The MPR has the authority to change and stipulate the 1945 Constitution, inaugurate the president and / or vice president, even the MPR can dismiss the president and / or vice president”. Therefore it is not surprising that political parties are competing for the position of Chairman of the MPR. By raising ideas
The MPR as the highest state institution and has the authority to determine the GBHN, has polarized political forces that are pro and contra to this idea. So that the existing political forces can exercise a bargaining position as a consequence of the existing transactional democracy. This condition is clearly very unfavorable for the community because the people’s aspirations may not be properly channeled which is hindered by transactional democracy.
We need to look back, especially after the fourth amendment to the 1945 Constitution, which made the MPR no longer the highest state institution. The background for the emergence of amendments to the 1945 Constitution is the mandate of the 1998 reform, with an anti-new order and authoritarian regime spirit. During the New Order era, the MPR’s functions and powers were abused to strengthen the authoritarian regime, and the MPR lost control of the New Order government. After the fourth amendment to the 1945 Constitution, it has resulted in high state institutions that have an equal position to ensure the principles of balance and supervision. The principle of balance and supervision is necessary so that state institutions control each other in exercising their authority and functions in accordance with Pancasila and the 1945 Constitution. During the New Order regime, the principles of balance and supervision did not work well because there was no equal position among the institutions. the state, and the MPR as the highest state institution cannot be controlled by other state institutions.
In fact, we can trace the history of the idea of having the MPR as the highest state institution since pre-independence based on meeting documents at the Preparatory Business Entity for Indonesian Independence (BPUPKI). Soepomo once raised the idea of an MPR as the highest state institution in our constitutional system during the BPUPKI session. Soepomo was inspired by the constitutional law in indigenous peoples which places the customary community assembly as the highest institution and its position is above the head of the indigenous community. The customary community assembly is filled by people who are wise and do have integrity and are appointed by the customary head with the consent of the customary community. The customary head and all members of the customary community must respect every decision made by the customary community assembly.
Soepomo as an expert on customary law in Indonesia understands very well that the context of the existence of the customary community assembly is to protect the values of indigenous peoples such as the principle of togetherness. The principle of togetherness is reflected in the ownership system of the means of production in indigenous peoples. Indigenous people live in friendly terms with nature / the environment because they are well aware that they depend on good natural / environmental conditions. Indigenous peoples need the principle of togetherness to protect a good nature / environment.
The principle of togetherness in society that differentiates it from western societies which is based on individualistic principles. Then came the spirit of anti-colonialism in the pre-independence era which prompted Soepomo to adopt the concept of a customary community assembly to the state level to become the MPR as the highest state institution. Furthermore, there was momentum for the existence of BPUPKI, and Soepomo raised the concept of the customary community assembly at the BPUPKI session. Our first constitution did adopt the concept of a customary community assembly to become the MPR as the highest state institution. Therefore, we need to understand the context of the birth of the MPR as the highest state institution, namely the spirit of anti-colonialism and want to raise the principle of togetherness in facing colonialism.
Soepomo was inspired by Hegel’s organic theory which explains that the state is described as the human body, and a leader must be like a human brain capable of controlling all parts of the human body. So Soepomo’s integralistic state understanding emerged. This concept of an integralistic state underlies Soepomo’s legal philosophy in the pre-independence state administration sector in Indonesia. The concept of an integralistic state has been criticized because of the idea of fascism, including by Marsilam Simajuntak. However, the existence of the customary community assembly cannot be equated with the organic theory and understanding of the integralistic state. Indigenous peoples’ assemblies existed before the birth of organic theory and integralistic state ideology. Then, the orientation of the customary community assembly is to safeguard the values of indigenous peoples, and not to contest over power and defend it at the state level.
Soepomo’s Idea and the Fifth Amendment of the 1945 Constitution
Soepomo’s idea to introduce indigenous peoples’ assemblies to the state level is a positive thing. This means that there is an attempt by the state to recognize the constitutional system that exists in indigenous peoples. But when the concept of an indigenous peoples council is withdrawn to the state level (MPR), it will become a problem because it is prone to abuse of the concept of the customary community assembly. In current conditions, there is a difference in context between the MPR as the highest state institution and the concept of an indigenous peoples council. Indigenous peoples’ assemblies exist in the midst of indigenous peoples not in the context of transactional democracy. It is very difficult for the concept of customary community assemblies to work properly if they are forced to attend and emerge in the context of transactional democracy. In the future, the principles of strictness in indigenous peoples such as the principles of kinship, mutual cooperation, togetherness in positive matters need to be accommodated by our constitution. The principles of customary constitutional law have been accommodated in the Pancasila principles. But it is not expressly recognized by the constitution. The legal principle position is higher than the legal norm in the constitution.
After the Fourth Amendment to the 1945 Constitution, the MPR is no longer the highest state institution. But the MPR still has a strategic position and is not inferior to other high state institutions. Even the MPR legal product, namely the MPR Decree, is part of the source and order of the legislative order. If we read Article 7 paragraph (1) of Law 12 of 2011 concerning the Sources and Order of the Legislative Regulations in Indonesia, it has placed the MPR Decree under the 1945 Constitution and above the Law. This means, the position of the MPR Decree is higher than the Law which is a legal product of the House of Representatives (DPR) and the government. Even if the MPR as a high state institution is given the authority to stipulate the GBHN through the MPR Decree, then automatically the MPR Decree has a higher position than the Law. The President, DPR and other high state institutions are obliged to comply with the MPR Decree. Therefore, there is no need to amend the five UUD 1945 Constitution to place the MPR as the highest state institution.
On the other hand, there is an urgency to strengthen the powers and recommendations of other state institutions such as the Regional Representative Council (DPR), the Judicial Commission (KY), and the National Commission on Human Rights (Komnas HAM) in our constitution. The principle of balance and supervision in the constitutional system requires state institutions to carry out their supervisory and balance functions properly so that democracy can run well. Then the people’s sovereignty (democracy) needs to be balanced with the rule of law (nomocracy) in order to create public order (public order). KY and Komnas HAM carry out functions to maintain the rule of law, whose recommendations are still not optimal. Meanwhile the DPD, which exercises people’s sovereignty, has limited authority as a partner of the government and the House of Representatives (DPR) in making laws.