---

Illustration by Humas MK.

JAKARTA, Public Relations of the Constitutional Court—Amidst the ongoing COVID-19 outbreak, the Government issued the Government Regulation In Lieu of Law (Perppu) Number 1 of 2020 regarding the State’s Financial Policy and Fiscal Stability for the Mitigation of COVID-19 on March 31, 2020. The perppu was issued on the basis that COVID-19 had negative impacts of on state economy. The decline of various domestic activities led the Government and the Financial System Stability Committee (KSSK) to take anticipatory measures to maintain financial stability by issuing the perppu.

“For this reason, the Government and relevant institutions are required to immediately take extraordinary policies and measures to save the national economy and financial system stability through various relaxation policies related to the implementation of the State Budget (APBN), in particular by increasing spending on health, spending on social safety nets, and economic recovery, and strengthening the authority of various institutions in the financial sector,” said President Joko Widodo as quoted from the website of the Cabinet Secretary of the Republic of Indonesia on April 1, 2020.

However, the constitutionality of the Government’s measure was questioned by some members of the community. Two petitions were filed to the Court to request that the Perppu 1/2020 be reviewed judicially.

Legal Immunity

On April 9, 2020, the Indonesian Anticorruption Community (MAKI), Mega Bintang Solo Indonesia 1997 Foundation, KEMAKI, LP3HI, and PEKA Legal Aid filed a judicial review petition of the Perppu 1/2020. Then on April 14, Din Syamsuddin, Amien Rais, and Sri Edi Swasono filed another on the same perppu through simpel.mkri.id.

In both petitions, the Petitioners believe Article 27 of the perppu potentially creates immunity for officials or the administrations, such as the KKSK. The article specifically declares that the KKSK or officials executing the perppu cannot be charged, whether criminally or civilly.

Article 27 of the Perppu 1/2020 reads:

(1) Costs incurred by the Government and/or KSSK member institutions in the context of implementing state revenue policies including taxation policies, state expenditure policies including regional financial policies, financing policies, financial system stability policies, and national economic recovery programs, shall be part of the economic costs to save the economy from the crisis and shall not constitute a loss to the state.

(2) Members of the KSSK, the Secretary of the KSSK, members of the KSSK secretariat, and officials or employees of the Ministry of Finance, Bank Indonesia, the Financial Services Authority, and the Indonesia Deposit Insurance Corporation, and other officials relating to the implementation of this Government Regulation in Lieu of Law cannot be subjected to either civil or criminal charges while carrying out their duties based on good faith and in accordance with the provisions of the legislation.

(3) All actions including decisions taken based on this Government Regulation in Lieu of Law are not subject to lawsuit that can be filed to the state administration court.

In addition to the legal immunity, the article is also believed to potentially lead to corruption, especially along the phrase “not constitute a loss to the state.” It is also thought to not show any urgency and strong legal reason, especially because Law No. 17 of 2003 on State Finances already regulates the state finances during abnormal or urgent conditions as stipulated in Article 27 paragraphs (3), (4), and (5).

No Force Majeure

Din Syamsuddin and peers believe that the Perppu 1/2020 does not meet the three force majeure requirements as a parameter for the issuance of a perppu according to the Constitutional Court Regulation No. 138/PUU-VII/2009. The three requirements are the urgency to resolve legal issues swiftly under the law; a legal vacuum as the legislation does not yet exist; and that the legal vacuum cannot be overcome by making the law under the usual procedure because it will take quite a long time, while the situation requires swift resolution.

The Petitioners believe that the Perppu 1/2020 discusses state finances and state budget while the state budget has already been determined. The reason that the COVID-19 pandemic led to legal vacuum is also groundless. Indonesia already has Law No. 6 of 2018 on Health Quarantine as a legal basis in making policies regarding the mitigation of COVID-19.

In response to the petition, Junior Registrar I Triyono Edy said that the Registrar’s Office was still examining whether the petitions have meet the requirements. If they are, the Registrar’s Office will register them and decide on the justice panel and hearing schedule. (Lulu Anjarsari)

Translated by: Yuniar Widiastuti

---