Attorney M. Sholeh for the Petitioners of case No. 34/PUU-XVIII/2020 in the material review hearing of the Health Quarantine Law on Thursday (11/6/2020). Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—The Constitutional Court (MK) held a preliminary judicial review hearing of Law No. 6 of 2018 on Health Quarantine on Thursday (11/6/2020). The hearing for case No. 34/PUU-XVIII/2020 took place with physical distancing amidst the large-scale social restrictions (PSBB) in the transition period to accelerate COVID-19 mitigation in the Jakarta Special Capital Region, in accordance with the health protocols set by the Indonesian Health Ministry and the World Health Organization (WHO).
Runik Erwanto (Petitioner I) and Singgih Tomi Gumilang (Petitioner II) argued that Article 55 paragraph (1) of the Health Quarantine Law contradicts Article 28D paragraph (1) and Article 34 paragraph (1) of the 1945 Constitution. Article 55 paragraph (1) of the Health Quarantine Law reads, “During Territorial Quarantine, the basic necessities of the people and food for livestock in quarantine areas are the responsibility of the Central Government.”
The Petitioners, who are advocates, feel disadvantaged because they could not fly with their clients for trial because large-scale social restrictions (PSBB) are being imposed in Jakarta, where people are prohibited from flying. The restriction was imposed by the Ministry of Transportation based on the Minister of Transportation Regulation No. 25 of 2020 concerning Transportation Control during 1441 AH Eid Al-Fitr Travel to Prevent the Spread of COVID-19. The panel of justices who handled the Petitioners’ case would like to continue the trial even though the experts and the Petitioners as legal advisors could not attend the trial. This is detrimental to the defendant and the Petitioners.
According to the Petitioners, the implementation of the PSBB had nothing to do with the travel restriction in and out of Jakarta, because the PSBB did not prohibit temporary closure of government offices. Air transportation restriction due to PSBB and the Eid al-Fitr homecoming travel ban was very detrimental to the Petitioners. The government should enforce regional quarantine, which will halt all activities including trials. However, the government has concerns that if regional quarantine is implemented, the central government must accommodate all the basic needs of all people in Jakarta.
In this preliminary hearing, the Petitioners’ attorney M. Sholeh explained that on March 2, 2020 for the first time the Indonesian Government announced that citizens contracted COVID-19. Thus, it issued the Government Regulation No. 21 of 2020 on the Large-Scale Social Restrictions to Expedite Countermeasures against COVID-19, which was then is followed up by the Minister of Health Regulation No. 9 of 2020 on the Large-Scale Social Restrictions Guidelines to Expedite Countermeasures against COVID-19.
Through this regulation, a middle ground was adopted for regional heads to impose PSBB for regions with large casualties with the approval of the Minister of Health. However, the Petitioners believe the government did not impose PSBB but a regional quarantine (lockdown), as it prohibited Eid al-Fitr travel in areas such as DKI Jakarta and Surabaya. In contrast, such prohibition is not mentioned in the PSBB rules.
"Isn’t this a form of human right violation, prohibiting [Eid travel] without a clear legal basis? It does not provide protection and legal certainty to the Petitioners and this clearly contradicts the provision of Article 28D paragraph (1) of the 1945 Constitution," until Sholeh before a hearing led by Constitutional Justice Enny Nurbaningsih along with Constitutional Justices Manahan M. P. Sitompul and Saldi Isra.
The Petitioners also believe that travel ban during the PSBB was certainly inappropriate to use as a legal basis because such an ban only applies in a regional quarantine as regulated in Articles 53-55 of the Health Quarantine Law. In the a quo article, especially the phrase "basic necessities of the people," the problem for the government is if the regional quarantine was enforced, the government had concerns that it would have to pay for the food for residents who were subject to regional quarantine. The "people" refers to children, adults, old, male or female, rich or poor. According to the Petitioners, the a quo article must be interpreted as constitutionally conditional, where only the necessities of the poor are covered by the central government. That way, the quarantine budget for the central government would not too big.
"Based on the elaboration, the Petitioners requested that the panel of justices declare Article 55 paragraph (1) constitutionally conditional [to refer to] the poor," said Sholeh in the Plenary Courtroom of the Constitutional Court.
Constitutional Loss
Constitutional Justice Saldi Isra stated that some of the Petitioners’ statements in the petition were no longer relevant, since it was submitted in April 2020 while the hearing for the case was only in session in June 2020. Furthermore, he observed that the Petitioners’ had not elaborated on the constitutional loss caused by the enactment of the a quo norm. The legal basis or the argument for the constitutional loss did not imply a meaningful connection between the norm and the intended loss.
"So, how can you explain the connection between the two? If this can be explained, the panel of justices can also find […] a constitutional issue," he said.
Constitutional Justice Enny requested that the Petitioners explain the rights that the Constitution granted all citizens and the rights that have been violated due to the enactment of the a quo norm. “This petition is still merely a venting outlet. It hasn’t discussed the legal issue that occurred and was suffered [by the Petitioners]. The loss due to the enactment of the law must be explained,” she said. (Sri Pujianti/LTS/NRA)
Translated by: Yuniar Widiastuti
Translation uploaded on 06/16/2020
Friday, June 12, 2020 | 10:28 WIB 184