Constitutional Justice Daniel Yusmic P. Foekh delivering a public lecture before law and communication students of Soegijapranata Catholic University of Semarang, Saturday (9/30/2023). Photo by MKRI/Yuwandi.

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SEMARANG (MKRI) — Constitutional Justice Daniel Yusmic P. Foekh shared knowledge about his dissertation entitled “Government Regulation in Lieu of Law (Perppu): A Study from the Perspective of Normal and Emergency Constitutional Law” to undergraduate and graduate students of the Faculty of Law and Communication of Soegijapranata Catholic University (FHK Unika Soegijapranata).

Based on the 1945 Constitution, the president, House of Representatives (DPR), and Regional Representatives Council (DPD) may propose bills of law, which are then ratified by the House. However, in cases of compelling crisis situations, the president has the authority to enact a government regulation in lieu of a law (perppu). In normal situations, the House has the authority to form or design a law, whereas DPD simply has the authority to propose a bill. Thus, there are disparities in the procedural formation of the perppu and the law.

“So far, the practice [of both] in Indonesia appear the same, when legally they differ in the conditions under which they were issued. One is issued in an emergency, whereas the other in a normal situation. That is the fundamental feature of the perppu that must be understood,” Justice Foekh said before by dean Marcella Elwina Simandjuntak in the Master of Health Law Room, Thomas Aquinas Building.

Justice Foekh explained that the aim of the perppu is to overcome the emergency situation temporarily. In its practice in Indonesia, however, even though the president drafts a perppu bill when the House is in recess, if it is approved by the House it can become a law. In fact, he said, the formation pattern is different because no academic paper is necessary, unlike in the preparation of a legal norm during normal situations.

“So from this practice, [it is clear that] Indonesia adheres to a subjective emergency system of constitutional law, because the president can stipulate a number of articles in the perppu. This is the president's prerogative and in practice there has been no temporary legality that states a state of emergency when the perppu is issued as the legal provisions should be. Because, in fact, perppu cannot be promulgated because of its temporary nature,” he explained.

Perppu and Constitutional Court’s Authority

In the public lecture on “The Constitutional Court’s Authority over Government Regulations in Lieu of Laws (Perppu)”, Justice Foekh pointed out the Constitutional Court’s stance on this issue. Initially, the Court was not given the authority to review the perppu. Only in Constitutional Court Decision No. 138/PUU-VII/2009 did it state that the subject of a judicial review petition could be a law or a perppu. This is then specified in Article 2 paragraph (1) of the Constitutional Court Regulation (PMK) No. 2 of 2021 on the procedural law for judicial review.

After his presentation, the students asked questions. Jenita Tryani asked what caused the shift in the practice of issuing perppu in Indonesia, later enacted into law. Justice Foekh answered that a cumulative requirement for the issuance of a perppu include a compelling crisis situation, the absence of legislation on the issue, and the elimination of legal uncertainty. However, the issuing of perppu, which is then promulgated, should not be done since classification of law and perppu is different and perppu does not need to include in the legal hierarchy, despite the fact that it is parallel to a law.

Author       : Sri Pujianti
Editor        : Nur R.
Translator  : Nyi Mas Laras Nur Inten Kemalasari/Yuniar Widiastuti (NL)

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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