Preliminary examination hearing of the judicial review of the Government Regulation In Lieu of Law regarding the State’s Financial Policy and Fiscal Stability for the Mitigation of COVID-19, Tuesday (28/4) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.
JAKARTA, Public Relations of the Constitutional Court—Despite the large-scale social restrictions (PSBB) in the Jakarta Special Capital, the Constitutional Court (MK) held the judicial review of the Government Regulation In Lieu of Law Number 1 of 2020 regarding the State’s Financial Policy and Fiscal Stability for the Mitigation of COVID-19. The hearing applied physical distancing in accordance with the health protocol regulated by the Indonesian Health Ministry and the World Health Organization (WHO).
The hearing was organized for three petitions. First, petition No. 23/PUU-XVIII/2020 filed by M. Sirajuddin Syamsuddin, Sri Edi Swasono, Amien Rais, and 21 other individuals of different professions. Second, petition No. 24/PUU-XVIII/2020 filed by the Indonesian Anticorruption Community (MAKI), Mega Bintang Solo Indonesia 1997 Foundation, and three other organizations. Third, petition No. 25/PUU-XVIII/2020 filed by attorney and humanitarian activist Damai Hari Lubis.
In the petition, the Petitioners of case No. 23/PUU-XVIII/2020 represented by Ahmad Yani stated that Article 2 paragraph (1) numbers 1, 2, and 3; Article 16, Article 23, Article 27, and Article 28 of the Perppu on COVID-19 Mitigation are unconstitutional. They believe that the a quo perppu 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 perppu only discusses financial and state budget issues by granting the Government an authority to catapult the state budget deficit beyond the 3% limit stipulated in the State Budget Law until 2022. Such regulation, Ahmad added, contradicts the periodic characteristic of the State Budget Law as stipulated in Article 23 paragraph (1) of the 1945 Constitution because it is supposed to work for three periods.
In addition, the Petitioners also believe that the a quo norm would allow for the state budget deficit beyond the 3% gross domestic product (GDP) limit without a ceiling. This regulation would directly inhibit the House of Representatives (DPR) from giving approval on the state budget while Article 23 paragraphs (2) and (3) of the 1945 Constitution states that the State Budget Law must be approved by the people, represented by the House.
“This House’s approval is very important as it represents the people’s sovereignty. If the House does not approve of the state budget bill, the Government will have no option other than to use the State Budget Law of the previous year. However, the articles of the a quo regulation nullifies the importance of this House’s approval,” Ahmad explained in the Courtroom of the Constitutional Court on Tuesday afternoon (28/4/2020).
State of Emergency
According to the Petitioners, in case of the state budget on certain matters without specific allocation, a budget shift can be made without prior House’s approval on the condition that there is an emergency that threatens the mental health or the integrity of the state. The House’s approval can be requested after the budget is realized and then drafted into the State Budget Law Amendment in the budget realization report. “The state budget implementation scheme in the State Finance Law could actually be the Government\\'s choice in dealing with economic problems as a result of the COVID-19 outbreak,” Ahmad explained.
Potential for Corruption
Zainal Arifin Hoesein said that Article 27 paragraph (1) of the Perppu on COVID-19 Mitigation potentially leads to corruption because the costs incurred by the Government during COVID-19 mitigation including regional financial policies and national economic recovery programs shall not constitute a loss to the state. Thus, the a quo norm is considered to provide privileges for certain officials to have legal immunity. This provision also shows that the Supreme Audit Board (BPK), which was given the mandate to examine the management and accountability of state finances, cannot carry out its duties when referring to the provisions of the a quo norm. “Therefore, the House cannot oversee the use of the budget,” explained Zainal, one of the Petitioners’ attorneys.
Legal Immunity
In the same hearing, the Petitioners of case No. 24/PUU-XVIII/2020 through petitioner Boyamin Bin Saiman also said that Article 27 paragraph (1) of the a quo perppu states that the costs incurred by the Government in the context of implementing state revenue policiesshall not constitute a loss to the state, while in fact the source of state revenue comes from the state budget. Boyamin explained that this would give government apparatuses immunity from being subject to charges or correction through the judiciart. Therefore, the a quo article is against the 1945 Constitution, which states that Indonesia is a state of law.
In addition, the Petitioners believe that in Article 27 paragraph (2) of the a quo perppu there is the word “if,” which the president or the Government could use to avoid any allegation of legal immunity. So, the word “if” carries multiple interpretations and public officials could hide behind the phrase “good faith” to be free of any legal charges. Law No. 12 of 2005 on the Ratification of the International Covenant on Civil and Political Rights stipulates that any policy based on good faith that leads to state loss should be reviewed legally and openly. So, there is no such thing as good faith based on a subjective judgment by a government administration.
“If this immunity is required, its limitation must be conditional, so that it will not harm the public, including the Petitioners,” said Boyamin before the court presided over by Deputy Chief Constitutional Justice Aswanto, along with Constitutional Justices Wahiduddin Adams and Daniel Yusmic P. Foekh.
Financial Information
The Petitioner of case No. 25/PUU-XVIII/2020 through attorney Arvid Martdwisaktyo stated that Article 27 paragraphs (1), (2), and (3) of the Perppu on COVID-19 Mitigation violates the constitutional right to obtain information on the use of state budget for COVID-19 mitigation and hinders legal monitoring by the judiciary. Therefore, the article is against the principles of transparency and accountability for the people’s welfare.
“This has violated the Petitioner’s constitutional rights, where the implementation of PSBB [large-scale social restrictions] greatly affects the Petitioner’s finances,” Arvid explained along with Petitioner Damai Hari Lubis. He added that the a quo article eliminates the need for the Government’s and public officials accountability in using the state budget, thus indicating a decline of law in Indonesia.
Legal Standing
Constitutional Justice Wahiduddin Adams said that the Petitioners of case No. 23/PUU-XVIII/2020 need to elaborate their legal standing as taxpayers. “The legal standing must be clarified regarding the Petitioners’ status as taxpayers and the constitutional rights in question,” he said. He also advised the Petitioners to clarify the correlation between their legal standing and Article 23 of the 1945 Constitution regarding several professions. This can give some insight to the Constitutional Court for a discussion. There also needs to be a comparative elaboration on the implementation of the constitution to changes in state budgets in other countries affected by the outbreak.
On the case No. 24/PUU-XVIII/2020 filed by CSOs, Justice Wahiduddin said that the Petitioners should explain in more details the constitutional damage due to the enactment of the a quo norm. As for the case No. 25/PUU-XVIII/2020, he advised the Petitioner to revise the petitum.
Constitutional Damage
Justice Foekh observed that the Petitioners, either as individuals, civil servants, or CSOs, need to clarify their elaborate their constitutional damage. The Petitioners of case No. 23/PUU-XVIII/2020 need to clarify the accumulative state budgets of 2020, 2021, and 2022. He advised them to understand that the State Budget Laws of 2021 and 2022 have not existed. The Petitioners need to analyze this in relation to their constitutional damage. He also said that the Petitioner of case No. 25/PUU-XVIII/2020 needs to understand that large-scale social restrictions (PSBB) are not regulated by the a quo perrpu, but by regulations under it. “Therefore, it is not under the Constitutional Court’s purview,” he concluded.
Deputy Chief Justice Aswanto advised the Petitioners of case No. 23/PUU-XVIII/2020 to clarify the causality between their constitutional damage and the enactment of the a quo norm because there are many Petitioners with different statuses. “The elaboration on an individual’s loss and that of an organization is not the same,” he said.
Before concluding the session, Justice Aswanto reminded the Petitioners to submit a revised petition no later than Monday, May 11, 2020 at 10:00 WIB to the Registrar’s Office of the Constitutional Court. (Sri Pujianti/RA/LA)
Translated by: Yuniar Widiastuti
Tuesday, April 28, 2020 | 13:23 WIB 178