Satya Wacana Christian University Law Faculty Dean Marihot J. Hutajulu with Constitutional Justices Manahan M. P. Sitompul and Daniel Yusmic P. Foekh officially opening a public lecture at the faculty’s hall, Friday (5/27/2022). Photo by Humas MK/Ifa.

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Friday, May 27, 2022 | 05:58 WIB

SALATIGA, Public Relations—The Constitutional Court (MK) collaborated with the Law Faculty of Satya Wacana Christian University (FH UKSW) to hold a public lecture on “The Constitutional Law Challenges Amid the COVID-19 Pandemic” at the faculty’s hall, Salatiga, Central Java on Friday, May 27, 2022. Constitutional Justices Daniel Yusmic P. Foekh and Manahan M. P. Sitompul spoke at the event. FH UKSW Dean Marihot Janpieter Hutajulu, faculty members, and students were in attendance.

Justice Foekh talked about “The Constitutional Court’s Role in Protecting Citizens’ Constitutional Rights amid the Pandemic.” He started his presentation by expressing his appreciation for FH UKSW’s invitation for several reasons. First, the World Health Organization (WHO) had declared the Coronavirus Disease 2019 (COVID-19) a global pandemic. In Indonesia, President Joko Widodo declared it a national non-natural disaster and issued a government regulation in lieu of law (perppu) related to the state’s financial policy and fiscal stability for the mitigation of the COVID-19 pandemic.

Second, the Constitutional Court as the guardian of the Constitution has a significant role in protecting the citizens’ constitutional rights, both in normal conditions and in emergency situations. “Therefore, it is important for the Constitutional Court to maintain the state order during the pandemic so that it is always in accordance with the mandate of the 1945 Constitution,” he said.

Third, the Constitutional Court has a mission to raise awareness of the Constitution among citizens and state administrators. He believed the public lecture to be part of an effort to introduce constitutional rights in the 1945 Constitution and disseminate the Constitutional Court’s decisions to increase citizens' awareness of constitutionality, especially for the academic community, teaching staff, and students of FH UKSW. 

Constitutional Dualism

He also said, doctrinally, the distinction between normal and emergency constitutional law was known as “constitutional dualism,” a notion proposed by John Ferejohn and Pasquale Pasquino in “The Law of the Exception: A Typology of Emergency Power” (2004)— “the notion that there should be provisions for two legal systems, one that operates in normal circumstances to protect rights and liberties, and another that is suited to dealing with emergency circumstances.”

“I discussed constitutional dualism a bit in my dissertation, as Indonesia also has normal constitutional law in relation to the formation of laws and regulations. Under normal circumstances, laws are regulated by the [House (DPR)], which has the right to have the authority to form laws and the president, and the DPD has the right to submit bills related to its authority. While in an emergency or state of danger, the authority is given to the president, who has the right to stipulate government regulations as laws,” Justice Foekh said.

He revealed that during the pandemic the Court conducted hearings remotely or both onsite and remotely (hybrid). While still adhering to health protocols, the number of parties who are present in person are limited, and they must show an antigen testing result, wear a mask and face shield, while attending the hearing in the Constitutional Court building. 

Impacts of COVID-19 Pandemic

Next, Justice Manahan opened his presentation by explaining the amendment to the 1945 Constitution, which was spurred by the Reform movement. “The goal of the Reform was to strike a balance between state institutions, or checks and balances,” he said.

He then explained the impact of the COVID-19 pandemic to Indonesia. The pandemic, originally a health tragedy, became a social tragedy for the community, and then spread to the economic aspect, at risk of triggering a crisis. It has stopped various social, business, and economic activities and has had a domino effect on socio-economic and financial aspects, such as layoffs in various business sectors.

“Slowly we are trying to get back up again,” Justice Manahan said.

He also explained that the Constitutional Court’s decisions on the judicial review of the perppu was related to the compelling crisis situation as referred to in Article 22 paragraph (1) of the 1945 Constitution. In Decision No. 138/PUU-VII/2009, it was of the view that it could examine the perppu. It considered the perppu to depend on the president’s subjective assessment, but not solely on it. The assessment must be based on three objective parameters that warrant the declaration of compelling crisis situation. Thus, a perppu is needed if: first, there is an urgency that requires swift resolution of legal issues based on the Law; second, the required law does not yet exist, resulting in a legal vacuum, or there is a law but it is not sufficient; third, the legal vacuum cannot be overcome by making laws in the usual procedure because it will take a long time while the urgent situation requires certainty. 

Writer       : Panji Erawan
Editor        : Nur R.
Translator : Yuniar Widiastuti (NL)

Translation uploaded on 5/30/2022 13:42 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.

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