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Panel preliminary examination hearing of the COVID-19 Law, Thursday (25/6) in the Plenary Courtroom of the Constitutional Court. Photo by Humas MK/Gani.

JAKARTA, Public Relations of the Constitutional Court—Since promulgated on May 12, 2020, the Law No. 2 of 2020 on the Government Regulation In Lieu of Law No. 1 of 2020 on 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 have been challenged by various elements of the public in the Constitutional Court (MK). On Thursday noon (25/6/2020), the justices led by Deputy Chief Constitutional Justice Aswanto held the preliminary examination hearing of the COVID-19 Law for three cases: No. 42/PUU-XVIII/2020 petitioned by 50 petitioners affiliated with Pro-Democracy (ProDem) movement; No. 43/PUU-XVIII/2020 petitioned by Munarman and peers; and No. 45/PUU-XVIII/2020 petitioned by Sururudin.

The Petitioners of case No. 42/PUU-XVIII/2020, represented by Principal Petitioner Iwan Sumule, argue that their constitutional rights have been violated by the enactment of Law No. 2 of 2020. They believe the law is unconstitutional because it discusses state budget instead of financial policies amidst the COVID-19 pandemic.

"This potentially harms the state and is contrary to the 1945 constitution, [especially] Article 23 of the 1945 Constitution and the provisions are not referred to by Law No. 2 of 2020," Iwan said before the Court, which was also presided over by Constitutional Justices Wahiduddin Adams and Daniel Y. P. Foekh.

The Petitioners also believe that the state financial policy in Law No. 2 of 2020 is potentially misused without control and supervision by competent authorities, thus conflicting with provisions on state finances. Its stipulation that costs incurred by the Government and/or KSSK member institutions in implementing state revenue policies including regional financial policies, financing policies, financial system stability policies, and national economic recovery programs are part of the economic costs to save the economy from the crisis and do not constitute a loss to the state, which is not in accordance with the basic principles of state finance and negates the role of the Audit Board (BPK) to assess and monitor it.

Allowing Corruption to Occur

The fifty individuals also argue that Articles 1 through 25 of the Appendix to Law No. 2 of 2020 place the president in a higher position than the House (DPR) and BPK, which can impact state power more than what is mandated in Article 4 paragraph (1) of the 1945 Constitution.

"In addition, the Appendix to Law No. 2 of 2020 actually allows corruption to occur to the state finances because all costs taken from the state budget are already considered not a state loss, and officials cannot be prosecuted in civil or criminal cases," said Yasin the Petitioners’ attorney. 

The Petitioners of case No. 43/PUU-XVIII/2020 similarly challenge the excessive authority of the Financial Sector Policy Committee (KKSK), who cannot be prosecuted following Article 27 paragraph (1) of Law No. 2 of 2020.

"This violates our state administration system related to the financial supervision function by the BPK and the judiciary because […] Article 27 paragraph 1 of Law No. 2 of 2020 is related to decision making by the KSSK that is not categorized as state losses," Principal Petitioner Munarman said. He added that the law has allowed corruption to occur.

Legally Defective

Munarman said the Petitioners also formally challenge the formation of Law No. 2 of 2020, which they believe to be legally defective. He revealed that the Perppu (Regulation in Lieu of Law) No. 1 of 2020 was stipulated and promulgated on March 31, 2020, approved in the House Plenary Session III for 2019-2020 to become Law No. 2 of 2020 on May 12, 2020. In other words, the stipulation of Perppu No. 1 of 2020 into law was discussed and approved during the same session.

"We found facts that Perppu No. 1 of 2020 was published during the Third Session of the House and stipulated into law at that session. Whereas […] it should have been promulgated during the fourth session. Therefore, in our opinion, this regulation was not approved in accordance with the 1945 Constitution," Munarman said. He also said that the stipulation did not meet the quorum. The House plenary session was attended by all factions and 296 members out of 575, with 41 members attending the session physically and 255 virtually. Virtual attendance does not follow the House’s code of conduct, which regulates that every attending member should sign an attendance list.

Eliminating House’s Involvement

The Petitioner of case No. 45/PUU-XVIII/2020 Sururudin argues that great power was given to the president to regulate state finances without involving the House from 2020 to 2023 as stipulated in Article 2 and Article 12 paragraph (2) of Law No. 2 of 2020.

"Besides being in violation of the objectives of the law, it is also contrary to the House’s authority in budgeting as stipulated by Article 20A paragraph (1) of the 1945 Constitution," said Sururudin, who did not appoint any attorney. Therefore, in his petitum he requested that the Court declare Law No. 2 of 2020 unconstitutional, null and void.

Constitutional Damage

Deputy Chief Constitutional Justice Aswanto advised the Petitioners of case No. 42/PUU-XVIII/2020 to detail their constitutional damage and elaborate on the legal standing of all fifty petitioners. Justice Foekh added, “The more touchstones [are mentioned], the longer the explanation should be so that [you] can convince the justices.”

The Petitioners were given 14 work days to revise the petition and submit it by July 8, 2020 to the Registrar’s Office.

Translated by: Yuniar Widiastuti

Translation uploaded on 6/26/2020

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