Memorabilia Of The Supreme Advisory Council

JAKARTA - The state is something abstract, the state becomes more concrete when it is driven by state organs (institutions, ed). When the organs that move the country are allowed to work in a bad order, it is the same as leaving the country in a trap of endless chaos.

In Indonesia's constitutional history, the President's advisory and consideration institutions have existed since the republic was first founded. Before the amendments to the 1945 Constitution of the Republic of Indonesia were made, the position of the Supreme Advisory Council (DPA) was regulated in a separate chapter, namely Chapter IV of the 1945 Constitution before amendments and was classified as a high state institution.

In the book entitled Presidential Advisory Council 2015-2017, written by Ahmad Fachrudin explains its development, the 4th amendment to the Constitution then removed the existence of the DPA which had the same position as 4 other high state institutions, namely the President and Vice President, the House of Representatives (DPR), the Supreme Court (MA), and the Financial Audit Agency (BPK).

The reason for the elimination of the existence of the DPA in the constitutional structure of the Indonesian nation through a constitutional amendment was due to the DPA's lack of effectiveness in carrying out its duties as an advisory organ. In 2007, President SBY changed the name of the Supreme Advisory Council (DPA) to the Presidential Advisory Council (Wantimpres), as regulated in Law Number 19 of 2006 concerning the Presidential Advisory Council.

Based on this law, the Presidential Advisory Council (Wantimpres) is a government institution tasked with providing advice and considerations to the President as intended in Article 16 of the 1945 Constitution of the Republic of Indonesia.

The contents of Article 16 of the 1945 Constitution "The President forms an advisory council whose task is to provide advice and considerations to the president, which is further regulated in the Act" namely Law Number 19 of 2006 concerning the Presidential Advisory Council. With a constitutional basis, namely Article 16 of the 1945 Constitution of the Republic of Indonesia.

Constitutional Law (HTN) expert Yusril Ihza Mahendra said that he was assigned by President SBY to represent the President in discussing the Bill on Wantimpres with the DPR until it was completed. "The text of Law Number 19 of 2006 includes the ratification signature of President SBY and my signature as Minister of Law and Human Rights," he said in a written message.

Yusril assessed that the most important thing about changing the name of Wantimpres back to DPA was related to the position of the institution. "The change in position from previously being under the president to being equal to other high state institutions. There are no fundamental problems in constitutional law in Indonesia regarding the change in position between Wantimpres and DPA," he explained.

Raad Van Nederlandsch Indie

Based on VOI's observations, from the inception of the Presidential Advisory Council until today it still shows that it does not have much of a role in administering state administration in Indonesia.

The Supreme Advisory Council, currently known as the Presidential Advisory Council, is nothing new in Indonesia. In the past, similar advisory institutions existed during the Dutch East Indies colonial government in Indonesia, these institutions had functions that were not much different from current advisory institutions. At that time the advisory body was called Raad Van Nederlandsch Indie. The task of this institution, which was founded in 1610, is to provide advice or consideration regarding matters that must be requested by the Governor General.

Constitutional Law Expert Jimly Asshidiqie in his article entitled Memorabilia Dewan Pertimbangan Agung explains things that are worth remembering and worth noting about the DPA-RI that have existed in the constitutional history of the Republic of Indonesia.

The word memorabilia also comes from Latin, and is widely used in communities that use English but is not widely used in Indonesian. The term Memorabilia means things that are worth remembering, things that are worth noting, a collection of notes or reminders about an important subject or event.

According to Jimly, DPA-RI in carrying out its constitutional duties has positives and negatives, strengths and weaknesses. Jimly wrote that the decision to abolish CHAPTER IV in the 1945 Constitution concerning the Supreme Advisory Council occurred at the MPR-RI Annual Session in August 2002.

"Not many people know the ins and outs of DPA-RI's work, because the considerations produced are only to be submitted to the President and are not published. The historical journey of DPA-RI for almost 58 years in carrying out constitutional duties according to the provisions of the 1945 Constitution has ended," wrote Jimly.

The Indonesian state is a country based on law (rechts staat) not based on mere power (machts staat). Generally, the rule of law is defined as the actions of the government and its people based on law.

The existence of state institutions ideally represents the three types of organs of power consisting of the Executive, Judiciary and Legislative. Quoting from Limbago: Journal of Constitutional Law, the interpretation of state institutions consists of two parts, namely the main state organs (main state organs) which refer to the understanding of trias politica consisting of state institutions such as the MPR, DPR, DPD, President, Supreme Court, and MK . And secondly, auxiliary state's organs.

The term main state organ, as interpreted in the types of State institutions above, refers to the concept of a political triad where State institutions that fall into this category are only State institutions whose authority is directly stated in the 1945 Constitution of the Republic of Indonesia. Meanwhile, the term auxiliary state's organ In general, the meaning is an auxiliary State institution formed according to statutory regulations under the 1945 Constitution of the Republic of Indonesia which functions to support the performance of the main State institution.

Independent State Institution

Constitutional Law expert Zainal Arifin Mochtar from Gadjah Mada University said that in general, constitutional practice in Indonesia has given rise to many state institutions, one of which is non-structural institutions. In terms of terminology, non-structural institutions are defined as bodies outside the existing branch of power structure. Although it can also be formed to provide considerations to the president in the context of coordinating or implementing certain activities. One of them is the President's advisory and advisory body or called the Presidential Advisory Council (Wantimpres) or Supreme Advisory Council (DPA).

"In the formation of independent state institutions there are several problems, one of which is the blue print. A state institution should have to make a blue print. However, in my research in 1999, 2000, 2001, it only created a state institution, there was no blue print," said Zainal Arifin Mochtar.

Zainal explained from the aspect of constitutional law by citing Asimow's opinion in Administrative Law (2002), the addition of the word "independent" is not only limited to emphasizing state organs that are outside the executive, legislative and judicial branches of power. Nor is it limited to being stated expressly (explicitly) in the legal basis for its formation.

Zainal defined that an institution is said to be independent if the recruitment of leaders/members of the institution is not carried out by one state institution alone, the dismissal of members of the institution can only be carried out based on the reasons regulated in the law establishing the institution in question and the president is limited to not making a discretionary decision. dismissal of the head of the institution. "Leadership is collective, not controlled/the majority comes from a particular political party, and the leaders' terms of office do not expire simultaneously, but alternately," said Constitutional Law Expert Zainal Arifin Mochtar in a written message.

It should be understood that currently there are still differences in the selection process for state institutions or independent state commissions. For example, although the determination of members of the Judicial Commission (KY) and leadership of the Corruption Eradication Commission (KPK) both fall under Commission III of the DPR in accordance with existing provisions, the process has very fundamental differences.

As an institution regulated in the 1945 Constitution, the DPR's authority in final determination of prospective KY members is very limited. Constitutionally, this limitation is due to the provisions in Article 24B paragraph (3) of the 1945 Constitution which states that the DPR only gives approval to 7 proposed KY member candidates. In contrast to the selection of KPK leaders, the DPR is provided with twice the number of KPK leaders needed. Even though they are both independent, the selection of KY and KPK members in the DPR is carried out in different ways.

"This requires a blueprint to start organizing independent state institutions, the legal basis, recruitment system, supervision and relationship patterns between institutions must be placed within the framework of achieving state goals. Because without a blue print there will be repetition, for example, following the birth of the The National Commission on Violence Against Women and Children. The question is, why not just create one human rights institution?" he stressed.