Deputy Chief Justice Aswanto giving a presentation on “The Constitutionalism of Criminal Law Amid the Pandemic” virtually for the Indonesian Criminal Law and Criminology Society (MAHUPIKI), Sunday (10/17/2021). Photo by Humas MK/Agung.
Sunday, October 17, 2021 | 15:38 WIB
MAKASSAR, Public Relations—Deputy Chief Justice of the Constitutional Court (MK) Aswanto gave a presentation on “The Constitutionalism of Criminal Law Amid the Pandemic” virtually on Sunday afternoon, October 17, 2021 at the 2021 National Upgrading of the Indonesian Criminal Law and Criminology Society (MAHUPIKI).
Justice Aswanto said amid the COVID-19 pandemic, the state must be present for its people. The people hope that the government carry out its role so that the people can continue enjoying their rights and that the law is enforced as it should.
“Emergencies, state of danger, [and] compelling crisis situations are all regulated in the Constitution. What should the government do when [the people] are in danger? Likewise, compelling crisis situations have also been regulated in the 1945 Constitution,” he said.
People’s Rights Not Overlooked
The state must be present during emergencies, meaning that it must guarantee that the people’s rights are not overlooked. Amid the pandemic, Justice Aswanto said, the state must set things in place so that the people not become victims and their rights not overlooked.
“That is why in such conditions, we must see the relation between the state and the citizens. The state guarantees the citizens’ rights in any condition, whether in peace or in an emergency. The problem is that if we purely see norms in legislation, the state might not be able to do anything because all of the people’s rights and the government’s obligations are constitutionally regulated in the Constitution,” he explained.
Therefore, Justice Aswanto said, the government needs to make breakthroughs. On one hand, they implement the existing positive law. On the other hand, in emergencies, some of the people’s rights must be fulfilled swiftly.
One of the Constitutional Court’s duties, Justice Aswanto said, is to guard the norms in the legislation as the basic norms in the Constitution. It must ensure that those norms do not violate the constitutional rights guaranteed in the Constitution.
“The question is, during such emergency as the COVID-19 pandemic, every day we hear of people contracting COVID-19 and even dying from it. The state must be present so that the rights guaranteed in legislation, including the Criminal Procedure Code and the Criminal Code, [can be enforced]; that in emergencies, the norms in the Criminal Code can be enforced based on the procedural law in the Criminal Procedure Code,” he explained.
Government’s Legal Bases
Justice Aswanto said Law No. 6 of 2018 on Health Quarantine is a legal basis for the government to make policies during emergencies. They must also refer to the Criminal Code (KUHP).
The government also issued several regulation during this pandemic, such as Law No. 2 of 2020 on the Stipulation of the Government Regulation in Lieu of Law Number 1 of 2020 regarding the State’s Financial Policy and Fiscal Stability for the Mitigation of the Coronavirus Disease 2019 (COVID-19) Pandemic and/or in Order to Face Threats That Endanger the National Economy and/or the Stability of the Financial System, the Government Regulation No. 21 of 2020 on the Large-Scale Social Restrictions to Expedite Countermeasures against COVID-19, other provisions on public activity restriction (PPKM), several presidential regulations (perpres) on vaccination, ministerial instructions, and regional head regulations on COVID-19 mitigation.
Justice Aswanto said Indonesians often mix human rights (mensen rechten) or with basic rights (ground rechten) or constitutional rights when they actually have basic differences. Constitutional rights are obtained when someone becomes a citizen of a state.
“Ground rechten is the same as constitutional rights or basic rights. They become rights as they are regulated in the Constitution. Meanwhile, human rights must be protected although they might not be regulated in the Constitution. Human rights are attached to a person as a creation of God Almighty,” he said.
Justice Aswanto added that constitutional rights as basic rights guaranteed in the Constitution must be implemented in daily life. When they are disregarded, the state is no longer democratic as a requirement for a democracy is the guarantee of the citizens’ constitutional rights.
Constitutionalism of Criminal Law
Justice Aswanto also explained that the constitutionalism of criminal law is aimed at guaranteeing that the Constitution provides restrictions over the relationship between the state and individuals. The state may criminalize or decriminalize citizens, but there must be limits to it.
“The limit is the interest of society, human rights. That is why, in my opinion, from the perspective of constitutionalism, we need to look at the norms set out in the law as well as various government regulations related to COVID-19 mitigation,” he said.
In conclusion, he asserted, criminal law needs to be limited because in addition to being the harshest law, it serves to protect the most essential interests of the community and is related to human rights. The principle of legality is not only a guarantee of legal certainty for the basic rights of citizens, but also the basic foundation for the state in implementing criminal law as an instrument of law enforcement to create public order. Therefore, government policies related to COVID-19 must be included in the legislation with elements of criminal law.
Writer : Nano Tresna Arfana
Editor : Lulu Anjarsari P.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 10/19/2021 10:52 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.
Sunday, October 17, 2021 | 15:38 WIB 212