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Constitutional Justice Daniel Yusmic P. Foekh as keynote speaker in a webinar hosted by the Darma Cendekia Catholic University Surabaya, Saturday (22/8) from the Constitutional Court. Photo by Humas MK/Ifa.

JAKARTA, Public Relations of the Constitutional Court—The constitutions of eleven countries, including Macedonia and Georgia, implicitly regulate measures in pandemic. However, only Turkey explicitly mention a pandemic in its constitution. “An epidemic is a disease outbreak that affects only one country, while a pandemic transcends countries, even continents,” said Constitutional Justice Daniel Yusmic P. Foekh as keynote speaker in a webinar on “Maintaining Financial Stability during the COVID-19 Pandemic in Relation to the Social Rights of Citizens” the Darma Cendekia Catholic University (UKDC) Surabaya on Saturday, August 22, 2020.

He said that in a state of emergency, the president of South Korea may temporarily issue a regulation similar to Indonesia’s government regulation in lieu of law (perppu) that amend a law only in a state of emergency. When the situation returns to normal, the pre-amended law applies. Article 12 of Indonesia’s 1945 Constitution is a norm relating to a state of emergency while Article 22 is related to compelling crisis situations.

“So there are the state of emergency and the compelling crisis situation,” he said in the event attended by UKDC Surabaya rector Y. Budi Hermanto, UKDC Surabaya Law Faculty dean Dian Ety Mayasari, experts, academics, and the public.

Justice Foekh said that the perppu substance in Article 22 of the 1945 Constitution means that in a compelling crisis situation, the president is authorized to enact a government regulation in lieu of law, which must be approved by the House (DPR). Without this approval, it must be revoked. He explained in his presentation on “Government Regulation in Lieu of Law (Perppu) in the Emergency Constitutional Law Design” that the article focuses on emergency law, while Article 12 relates to state of war.

He said that in Indonesia, all presidents have exercised this authority. Acting President Juanda issued 24 perppu during his service, while acting President Asaat Datuk Mudo issued 6 perppu during the era of the Republic of the United States of Indonesia.

“Upon observation, President Joko Widodo issued around 5 perppu, President Susilo Bambang Yudhoyono issued 5, President Megawati issued 4, President Abdurrahman Wahid issued 3, President Habibie issued 5, Presiden Soeharto issued 8, Presiden Soekarno issued 143. Based on my study in 2011, there have been 2015 perppu,” Justice Foekh said.

The question remains: were those perppu really issued in compelling crisis situations? In practice, he said, issueing perppu is a subjective constitutional authority vested in the president. The compelling crisis situation is assessed subjectively. When Perppu No. 4 of 2009 was challenged in the Constitutional Court, the Court made a compelling crisis situation criterion for the issuance of a perppu.

“In practice, perppu is not always [issued] in a state of emergency as stipulated in the 1945 Constitution [therefore] there is an impression that a compelling crisis situation is not always a state of emergency. However, questions arose: can perppu amend laws when not in emergency? If a perppu is issued not in a state of emergency, the people will question the aspect of the people’s sovereignty. In essence, a law must allow public participation. At least through the parliament. In other words, it must receive approval from the DPR [House],” Justice Foekh explained.

He also observed the House’s lawmaking authority while Article 22 of the 1945 Constitution stipulates that the president is authorized to declare a government regulation a replacement of a law for the state’s interest. “Therefore, there is [the authorities] to make and to declare; two different things. All this time perppu has had hierarchy. [It] was once equal to law, then once under the law, and now equal to law once more,” he added.

Regulations on COVID-19 Mitigation

Justice Foekh said that the regulations on COVID-19 mitigation are Law No. 24 of 2007 on Disaster Mitigation; Law No. 6 of 2018 on Heatlth Quarantine; Perppu No. 1 of 2020 on 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 Stability of the Financial System; Perppu No. 21 of 2020 on the Large-Scale Social Restrictions to Expedite Countermeasures against COVID-19; Perpres (Presidential) Regulation) No. 82 of 2020 on the Committee on COVID-19 Mitigation and National Economy Recovery; Keppres (Presidential Decree) No. 12 of 2020 on the Stipulation of Non-Natural Disaster of the COVID-19 Spread as a National Disaster; and Inpres (Presidential Instruction) No. 4 of 2020 on Refocusing Programs, Budget Reallocation, and Procurement of Goods and Services for COVID-19 Management.

He also said that economic, social, and cultural rights are human rights. Karel Vasak introduced three human rights categories: civil-political, socio-economic, and collective-developmental rights. He also questioned whether violations of economic, social, and cultural rights can be tried in court. He explained that Article 2 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) reads, “Each State Party to the present Covenant undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measures.” (*)

Writer: Nano Tresna Arfana
Editor: Lulu Anjarsari
Translator: Yuniar Widiastuti (NL)

Translation uploaded on 9/3/2020 14:32 WIB

Disclaimer: The original version of the news is in Indonesian. In case where any differences occur between the English and the Indonesian version, the Indonesian version will prevail.

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