DPR Can Evaluate State Officials, Independence of State Institutions Increasingly Threatened

JAKARTA, KOMPAS – The independence of state institutions is increasingly threatened after the new authority of the DPR which can periodically evaluate state officials they have chosen. The authority presented through the revision of DPR Regulation Number 1 of 2020 concerning the Rules of Procedure of the DPR, has the potential to strengthen DPR's intervention, such as in the case of the dismissal of constitutional judge Aswanto.

Constitutional law expert from the Faculty of Law, Gadjah Mada University, Yance Arizona, Thursday (6/2/2025), assessed that the DPR had gone too far by expanding its authority through changes to the DPR's Rules of Procedure or Tatib. The results of the revised Tatib disrupt state order which is based on the principle of checks and balances between state institutions.

The addition of one article in the revision of the DPR's Rules of Procedure, namely Article 228A, allows all state officials appointed in the DPR's plenary session to be evaluated by the DPR, such as the leaders of the Corruption Eradication Commission (KPK), commissioners of the General Elections Commission (KPU) and the Election Supervisory Body (Bawaslu), as well as judges of the Constitutional Court (MK) and the Supreme Court (MA).

Yance highlighted that the addition of new powers to the DPR has the potential to further open up interventions from the DPR against the independence of other state institutions, especially in the field of law enforcement. He cited an example, stating that DPR intervention had already occurred during the dismissal of constitutional judge Aswanto at the end of September 2022.

According to Yance, the removal of Constitutional Judge Aswanto by the DPR has already disrupted the independence of a judge. Moreover, the reason for the removal was that many of Aswanto's decisions were not in line with the DPR.

"This has been done before by removing constitutional judge Aswanto and it seems this bad practice will be repeated," said Yance.

Yance reminded that the DPR's authority in the selection of state institution leaders is not within the framework of granting an imperative mandate that can be revoked by the DPR at any time. The DPR's recommendations or decisions in the selection of state leaders are final, once completed. "It cannot be tampered with again," he said.

Jentera Law College law lecturer, Bivitri Susanti, sees that the DPR's intervention in state institutions has actually been included during the fit and proper test for state official candidates elected through the DPR. With the change in the DPR's Tatib, the DPR's authority to intervene in state officials and institutions will also be strengthened.

"So this is indeed intentional for me. The intervention was already included during the fit and proper test and was absolutely right," he said.

In fact, Bivitri continued, the fit and proper test was created at the beginning of the reform era so that the authority would be divided and the DPR would become the people's representative. However, at present, the practice of the fit and proper test has become a tool for behind-the-scenes negotiations. "So the process is not transparent either, with bargaining and all sorts of things. Well, the concern (now) is that it becomes even more malicious," said Bivitri.

Therefore, the changes to the DPR's Rules of Procedure have the potential to further disrupt the independence of state institutions, and the politicization or intervention from the DPR will become even stronger. He also agrees with the views of many other constitutional law experts that the DPR's Rules of Procedure apply only internally within the DPR. However, when these rules can regulate outside the DPR, especially if they are binding, then it is unconstitutional.

"So (actually) if a state official is to be dismissed, it must follow the law. Usually, administratively by the President. And substantively, there are regulations in each respective law. Not by the DPR," said Bivitri.

Then, if the goal is to strengthen the DPR's oversight function, it should be institutional in nature, not personal relations. If the DPR's Tatib regulation is allowed to continue, it will have extraordinary dangerous implications for democracy today.

"You can't call the members and tell them not to do this, not to do this. The possibility is that if that happens, the relationship is personal, it's asking for cases. So we also have to see it in that context. It's no secret that politicians often use their authority for their own interests, including asking for cases, for corruption cases or especially judges, that's very dangerous," said Bivitri.

In line with Bivitri, a lecturer at the Faculty of Law, Mulawarman University, Herdiansyah Hamzah, also saw that the DPR's Tatib was dangerous for democracy and the constitution. He suspected that the additional authority of the DPR was to make state institutions into institutions under the authority of the DPR.

"From the perspective of the theory of separation of powers, this is clearly problematic, then from the perspective of the theory of authority, it is also clearly problematic. Because the DPR does not have the authority to regulate. And finally, this is clearly problematic in the concept of the Hierarchy of legislation. How can the DPR's Tatib negate a regulation that is in the same class as a law? Because the dismissal of a judge is clearly regulated through a law," said Herdiansyah.

He suggested that the latest DPR Tatib be ignored by state officials. Because the Tatib has no legal force whatsoever. What is more important is to encourage President Prabowo to react to this problem in order to maintain the state system in Indonesia.

"The President should make a statement that this situation must be resolved. This situation must be returned to the right way of thinking. The right track. We are waiting for that reaction from the President," Herdiansyah said.

Chairman of the National Council of the Setara Institute Hendardi also criticized the results of the revision of the DPR Tatib. According to him, the new authority given through the Tatib is a form of mistaken intervention on the principle of checks and balances in the Indonesian state system.

Indeed, according to him, there is no mention of dismissal of officials, but the phrase in Article 228A Paragraph (2) states that the results of the evaluation are binding. The results of this evaluation can lead to dismissal, if the results of the evaluation recommend the dismissal of a state official.

"The substance of the norm as stated in Article 228A is formally wrong, where the internal regulations of a state institution should only regulate the internal affairs of the institution and/or regulate parties related to the institution in question," he said.

Meanwhile, substantively, the above norm is considered to be in conflict with the principle of people's sovereignty in Article 1 paragraph (2) of the 1945 Constitution. This principle is intended to guarantee the independence and independence of institutions regulated by the constitution, ensure control and balance between each branch of power, and there must be no other regulations that substantively weaken the independence of state institutions, whether formed by the Constitution or other laws.

He also assessed that the norm of Article 228A exceeds dozens of other sectoral laws, which actually provide guarantees of independence for the Supreme Court, Constitutional Court, BI, Corruption Eradication Commission, Judicial Commission and others, which have the potential to be stunted by the DPR with absurd evaluation authority.

The DPR was also said to have failed to understand the meaning of the phrase supervision, which is one of the DPR's functions as stipulated in Article 20A (1) of the 1945 Republic of Indonesia Constitution. The supervisory function inherent in the DPR is to supervise other government organs in implementing laws. This means that what the DPR supervises is the implementation of laws, not personal performance, let alone cases that often give rise to multiple conflicts of interest.

In a presidential system, if the DPR is given the authority to approve nominations, elect, or determine, this is solely to ensure that there is control and balance between state institutions and to ensure restrictions on the president from freely deciding on the filling of positions of officials who administer the people's sovereignty, so that the design of the independence of state institutions is maintained.

According to Hendardi, parliamentary supremacy that goes beyond the principle of division of powers as stated in Article 1 paragraph (2) of the 1945 Constitution must not be allowed.

"It would be better if the DPR focuses on its main task of forming laws, supervising the implementation of the laws it forms and budgeting functions in a more qualified manner, not designing political and power mines that are not intended for the interests of the people but forcing blind obedience to parliament and always opening up spaces for transactions and negotiations," he explained.