Friday, April 30, 2021 | 05:56 WIB

JAKARTA, Public Relations—Prima facie is a legal term that applies in the management of extraordinary issues (in this case, COVID-19) based on emergency law. The government has a constitution-sanctioned prerogative to pass emergency measures without the parliament’s approval in an emergency situation. This has occurred in several countries amid the COVID-19 pandemic, said Maruarar Siahaan as a legal expert in his testimony for the Government at a judicial review hearing of 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 Coronavirus Disease 2019 (COVID-19) Pandemic on Thursday, April 29, 2021. This was the tenth hearing for seven cases: No. 37, 42, 43, 45, 47, 49, and 75/PUU-XVIII/2020.

He further revealed that constitutions give governments or the executive branches authorities in emergency situations that could be taken in order to return situations to normal, with five adjustments. They are the extraordinary authority that is primarily temporary, the acknowledgement of the specificity of emergency situations, the appointment of a separate constitutional dictatorship that declares the states of emergency and appoint those administering emergencies, and appointments for specific and limited purposes.

“So, in general, the extraordinary authority must be temporary,” said Siahaan, a former constitutional justice who served from 2003 to 2008.

Forming norms whose formulation is not detailed in the constitution amid a pandemic, he added, the government may turn to the principle of necessity. However, he said, the issue that Indonesia is facing concerns the definition of kegentingan yang memaksa (a “compelling crisis situation”), which is not specified in statutory legislation.

In Decision No. 138/PUU-XVII/2009, the Constitutional Court doesn’t discuss this either. It only defines a “compelling crisis situation” as the urgent need to solve problems based on law when the law is not yet available and there is a legal vacuum.

“Therefore, what a “compelling crisis situation” is meant [was made clear] by the birth of this perppu [government regulation in lieu of law], which has been passed into law by the DPR [House],” Siahaan said.

Time Limit and Revocation of Authority

Siahaan then talked about the time limit and revocation of the Government’s authorities enacted during emergency situations or crises. When a perppu is passed into law, this means that a law in crisis has turned into a law in normalcy. He believes this to be a prima facie constitutional act because without urgent measures, there would be a high number of casualties, in which the Government could be said to have failed to fulfill a constitutional mandate and to protect the entire nation.

“Therefore, Law No. 2 of 2020 is constitutional and is based on the 1945 Constitution, which must be distinguished because it was born in a state of emergency. Otherwise, it would cause a crisis and endanger the state’s existence. [This law] is constitutional as long as the norm is valid until the end of the crisis,” Siahaan explained before Chief Justice Anwar Usman and the other eight constitutional justices in the plenary courtroom.

Also read:

NGOs and Researchers Challenge COVID-19 Law

Petitioners of COVID-19 Law Reaffirm Arguments

Village Funds Delayed, Two Village Chiefs Challenge COVID-19 Law

Sri Mulyani: COVID-19 Law Protects the Public

House: Ratification of COVID-19 Law, Legal Basis of Financial Authority 

Expert: Budgeting during Emergency Must Be Transparent and Accountable

Abdul Chair Ramadhan: COVID-19 Law Violates Criminal Justice System

Witness: COVID-19 Referral Hospitals Lacking Facilities

Petitioner’s Expert: COVID-19 Law Violates Lawmaking Procedure

Said Didu: COVID-19 Law Disregard Rule of Compelling Crisis Situation

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.

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. 

Writer        : Sri Pujianti
Editor        : Nur R.
PR            : Fitri Yuliana
Translator  : Yuniar Widiastuti (NL)

Translation uploaded on 4/30/2021 15:38 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.

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