Preliminary examination hearing of the judicial review of the Law on the State’s Financial Policy and Fiscal Stability for the Mitigation of the Coronavirus Disease 2019 (COVID-19) Pandemic, Thursday (18/6) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—Several nongovernmental organizations (NGOs), researchers, and advocacy activists challenged Law No. 2 of 2020 regarding the Government Regulation In Lieu of Law No. 1 of 2020 regarding the Stipulation of the State’s Financial Policy and Fiscal Stability for the Mitigation of the COVID-19 Pandemic and/or in Order to Face Threats That Endanger the National Economy and/or the Financial System’s Stability into Law in the Constitutional Court.
The Petitioners of case No. 37/PUU-XVIII/2020 are the Indonesian Foundation to Strengthen Civil Society\'s Participation, Partnership and Initiatives (YAPPIKA); Desiana Samosir; Muhammad Maulana; and Syamsuddin Alimsyah. The Petitioners of case No. 38/PUU-XVIII/2020 are the Indonesian Anticorruption Community (MAKI); Mega Bintang Solo Indonesia 1997 Foundation; the Indonesian Community for Justice (KEMAKI); the Law Enforcement Monitoring Institute (LP3HI), and the Institute for Criminal Justice Reform (ICJR).
The plenary preliminary hearing was held on Thursday (18/6/2020) and was presided over by Deputy Chief Constitutional Justice Aswanto along with Constitutional Justices Wahiduddin Adams and Daniel Yusmic Foekh. To help curb the spread of COVID-19, the hearing was in accordance with the health protocols set by the Indonesian Health Ministry and the World Health Organization (WHO).
The Petitioners of case No. 37/PUU-XVIII/2020 argued that Article 1 paragraph (3); Article 2 paragraph (1) letter a numbers 1, 2, and 3; Article 3 paragraph (2); Article 4 paragraph (1) letter b; Article 4 paragraph (2), Article 6; Article 7; Article 9; Article 10; Article 27 paragraphs (1), (2), and (3); and Article 29 of Law No. 2 of 2020 is unconstitutional.
The Petitioner’s attorney Violla Reininda stated that the articles being petitioned gave the government the authority to use a budget sourced from an endowment fund for education. As a result, the Petitioners had difficulty carrying out humanitarian activities to improve the public’s education.
Abuse of State Finances
In addition, the implementation of these norms has a very broad scope, which makes room for misuse of state finances. This allows for the use of state finances that has no sense of urgency. The Petitioners observed that the Title and Article 1 paragraph (3) of the COVID-19 Law are against the principles of the rule of law and prerequisites of state of urgency.
The considerations of the formation of this law, Violla added, show contradiction in its regulation, as the government desires extraordinary efforts in dealing with the COVID-19 pandemic. In contrast, the title and scope of the article are intended to deal with the economic crisis and financial stability, issues wider than COVID-19 mitigation.
"Therefore, it is necessary to limit the scope of the norms only for the mitigation and resolution of the COVID-19 pandemic," she explained.
In addition, the Petitioners also argued that Article 2 paragraph (1) letter a numbers 1, 2, and 3 of Law No. 2 of 2020 is against the rule of law, the people’s sovereignty, the House’s (DPR) oversight and budget functions, as well as the management of state finances. Although in an emergency, the President as the holder of the power of state administrators so as not to deviate from the constitution, must still be balanced by the legislative power to conduct oversight in evaluating the magnitude of the deficit and the ability of the state finances in each fiscal year.
Contrary to Regional Autonomy
The Petitioners also believe that Article 3 paragraph (2) of Law No. 2 of 2020 is against the principle of regional autonomy as regulated in Article 18 paragraphs (2) and (5) of the 1945 Constitution. The regional government is not given the freedom and independence to determine the use of the regional budget (APBD), while in fact the formulation and management of the APBD is a crucial aspect in the implementation of regional autonomy.
The Petitioners also believe that the implementation period of Article 29 of the Law on COVID-19 is not clear although it is specified for the people’s healthcare in an emergency. So, to create fair legal certainty, it is necessary to limit the implementation period until the public health emergency status is revoked by the president.
Impunity
In the same hearing, the Petitioners of case No. 38/PUU-XVIII/2020 conveyed their petition for a formal and material review of Article 27 paragraphs (1), (2), and (3) of Law No. 2 of 2020.
Article 27 paragraphs (1), (2), and (3) of Law No. 2 of 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.
The Petitioners believe that Article 27 of Law No. 2 of 2020 has given the administration or officials of the KSSK, the Financial Services Authority (OJK), Bank Indonesia, and the Ministry of Finance impunity. They cannot be prosecuted in civil, criminal, or state administrative courts when carrying out their duties on the pretext of good faith, where any costs incurred do constitute a state loss.
"So, the provisions of this norm make these officials demigods and this [does not reflect] justice for all Indonesians including the Petitioners," Kurniawan Adi Nugroho explained.
The Petitioners petitioned the Constitutional Court to declare Article 27; Article 27 (1), (2), and (3) of the COVID-19 Law against Article 1 paragraph (3), Article 7A, Article 23E, Article 24 paragraph (1), Article 27 paragraph (1), and Article 28D paragraph (1) of the 1945 Constitution.
Deputy Chief Constitutional Justice Aswanto advised the Petitioners to elaborate their petition so that their damage because of the enactment of the law be clearer. (Utami/Halim/NRA)
Translated by: Yuniar Widiastuti
Translation uploaded on 06/22/2020
Friday, June 19, 2020 | 13:27 WIB 312