Hendra Nurtjahjo giving a testimony virtually in at the judicial review hearing of the Law No. 2 of 2020 on the State’s Financial Policy and Fiscal Stability for the Mitigation of the COVID-19 Pandemic, Thursday (12/11). Photo by Humas MK/Ifa.
JAKARTA, Public Relations of the Constitutional Court—Law No. 2 of 2020 on 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 was deemed having violated lawmaking provisions, said Hendra Nurtjahjo, an expert for the Petitioner of case No. 45/PUU-XVIII/2020 at the formal and material judicial review of Law No. 2 of 2020 on Thursday, November 12, 2020 virtually.
He believes that law has general and abstract materials. The law is permanent and doesn’t apply temporarily. “It would violate lawmaking provisions if [a law] is used for a factually emergency state, but the implementation doesn’t belong to the emergency laws,” he said before Chief Justice Anwar Usman (chair) and the other constitutional justices.
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This, he added, is because the law doesn’t mention the state of emergency, which in Article 12 of the 1945 Constitution is required for the implementation of a norm in a state of emergency. He added that Law No. 2 of 2020 didn’t change the legal status of a normal circumstance to a state of emergency.
“Therefore, the issuance of Law No. 2 of 2020 for the mitigation of the pandemic applies in a normal circumstance, which cannot ignore constitutional norms, human rights, the system of checks and balances, other laws, common legal accountability, and the constitutional rights of citizens and state agencies,” Hendra added.
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State of Emergency
Hendra also said that the state of emergency allows for emergency laws, which is regulated in Article 12 of the 1945 Constitution. In a compelling crisis situation, he added, government regulations in lieu of laws (perppu) are needed to take actions to mitigate the crisis. He believes the perppu falls into two categories: regular and emergency. A regular perppu applies in a compelling crisis situation but belongs to the regime of normal laws. An emergency perppu, on the other hand, belongs to the regime of emergency laws. “Each of the category has different legal consequences and accountability mechanism,” he said.
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Hendra also said that a perppu can be said to be an emergency one if it applies in a state of emergency as referred in Article 12 of the 1945 Constitution. The determination of a state or emergency must follow Articles 12 and 22 of the 1945 Constitution.
He believes the regime of emergency laws, to a limited extent and in certain ways, may deviate from the 1945 Constitution, statutory laws, and other positive laws due to its emergency status. The state of emergency calls for the rescue of citizens and state organizations from objective threats, and the safety of these entities is seen to be above positive laws in a normal situation.
"Government authority and actions that are allowed to deviate from normal legal norms, to reduce human rights, and to reduce the constitutional authority of these state institutions, have the potential for abuse of circumstances, abuse of rights and authority, to become a buildup of power that leads to authoritarianism. However, constitutional principles must be maintained and as far as possible avoid the potential for authoritarianism," Hendra said.
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Disregard for Other Branches of State Power
In response to the expert’s statement, Deputy Chief Justice Aswanto said that the case No. 45/PUU-XVIII/2020 questions Article 27 of Law No. 2 of 2020 on impunity. He believes, theoretically the executive branch is more dominant in a state of emergency as it has information and swift decision-making. “My question is, can the dominance allow for it to disregard other powers such as the judiciary, because if the dominant power is not controlled, there could be abuses. Please explain Article 27 paragraph (2) related to that issue,” he asked.
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Hendra responded by saying that anything that reduces constitutional rights, including the authorities of the legislative and judicial branches, should not happen in this state of emergency. “Is such disregard allowed? Of course not, because the regime of the normal laws is used in normal situations, while the regime of the emergency laws is used in situations [that requires] mitigation of actual, real threats of the lives of citizens and the [foundation] of state organizations. Therefore, the state of emergency must be interpreted proportionally, [in terms of what could be] sacrificed from the constitutional rights to mitigate the state of emergency that threatens the existence of the country,” he explained.
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The petition No. 37/PUU-XVIII/2020 was filed by the Indonesian Foundation to Strengthen Civil Society's Participation, Partnership, and Initiatives (YAPPIKA); Desiana Samosir; Muhammad Maulana; and Syamsuddin Alimsyah. Their reasons for the formal judicial review petition are: first, the Regional Representatives Council (DPD) was not involved in the discussion to determine whether the COVID-19 Perppu was approved or not; second, the virtual House (DPR) meeting was likely not have been attended by MPs.
The Petitioners of case No. 42/PUU-XVIII/2020, Iwan Sumule and the other 49 Pro-Democracy (ProDem) activists, argue that if the COVID-19 Law and its appendix are enacted, there will be no more discussions on the revised state budget (APBN-P) between the Government and the House as the president can revise the details of the state budget and stipulate that revision unilaterally in a presidential regulation, while Article 23C of the 1945 Constitution mandates that all matters related to the state finances be regulated with a law, not a presidential regulation.
The Petitioners of case No. 43/PUU-XVIII/2020, Ahmad Sabri Lubis and 9 other individuals, argued that Perppu No. 1 of 2020, which is stipulated in Law No. 2 of 2020, doesn’t regulate the “compelling crisis situation” clearly and rather focuses on the Government’s authority to set the state budget deficit beyond the 3% GDP limit until fiscal year 2023.
The Petitioner of case No. 45/PUU-XVIII/2020 Sururudin argues that Article 2 and Article 12 paragraph (2) of the COVID-19 Law gives the president a great power to manage state finances without involving the House from 2020 to 2023. It is contrary to the scope referred to in Chapter I Article 1 of the a quo law, which clearly regulates the state’s need of the 2020 budget to implement the administration. However, Article 2 paragraph (1) letter a gives the Government the authority to exclude the House in managing state finances until 2023.
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The Petitioners of case No. 47/PUU-XVIII/2020, village heads and village consultative bodies members Triono and 26 others, understand that the funds might be delayed or redirected to other causes due to COVID-19, but stated that it would be problematic if village funds were to be declared null relating to state financial policies for COVID-19 mitigation and/or in order to face threats that endanger the national economy. They also believe that Article 28 paragraph (8) of the COVID-19 Law is not in accordance with Article 2 paragraph (1) letter l, which doesn’t specify that the pandemic will motivate the central government to eliminate village funds.
The Petitioner of case No. 49/PUU-XVIII/2020, advocate Damai Hari Lubis, challenges the provision on state budget in the a quo perppu, which has to refer to the principles stipulated in Article 23 paragraph (1) of the 1945 Constitution, especially on the transparency and accountability of the use of the state budget for the people’s welfare, which cannot be interpreted in exclusive conditions but in any condition. He believes the enactment of Article 27 paragraphs (1), (2), and (3) of the COVID-19 Law disregards any abuse by public officials in using the state budget for COVID-19 mitigation, which will lead to legal setbacks.
The petition No. 75/PUU-XVIII/2020 was filed by 47 petitioners, including M. Sirajuddin Syamsuddin, Sri Edi Swasono, and H. M. Amien Rais. They argue that the approval of Perppu No. 1 of 2020 into Law No. 2 of 2020 by the House were done in the same session as its stipulation when it was supposed to be in “the next sessions,” according to Article 249 of Regulation No. 1 of 2020 on the House’s Code of Conduct relating to session year and session period. The approval of the perppu violated Article 22 paragraph (2) of the 1945 Constitution. As the House had received the perppu in session III, it must be approved/rejected in session IV. In addition, Article 22D paragraph (2) of the 1945 Constitution stipulates that the Regional Representatives Council (DPD) should’ve participated in the discussion of Perppu No. 1 of 2020 as the norm concerns the central and regional budget. However, the House discussed the perppu without the DPD’s involvement.
Before concluding the session, Chief Justice Anwar informed that the hearing would resume on Thursday, November 12, 2020 at 11:00 WIB to hear experts for the Petitioners of cases No. 45/PUU-XVIII/2020 and No. 49/PUU-XVIII/2020.
Writer: Utami Argawati
Editor: Lulu Anjarsari
PR: Fitri Yuliana
Translator: Yuniar Widiastuti (NL)
Translation uploaded on 11/14/2020 09:56 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian version, the Indonesian version will prevail.
Thursday, November 12, 2020 | 18:12 WIB 228