"Is there a perppu [regulation in lieu of the law] that is free from opposition and can be agreed on by everyone?" No. That is the question as well as its extreme answer.
By
Moh Mahfud MD
·7 minutes read
Kompas/Heru Sri Kumoro
Finance Minister Sri Mulyani Indrawati (left) together with Chairman of the House of Representatives Puan Maharani (center), Minister of Justice and Human Rights Yasonna Laoly delivered a statement to reporters at the Parliament Building Complex, Senayan, Jakarta, on Thursday (2/4/2020). Sri Mulyani together with Yasonna Laoly representing the President delivered a Presidential Letter related to the submission of legal rules regarding additional government budget for handling the Covid-19 pandemic to the DPR.
"Is there a perppu [regulation in lieu of the law] that is free from opposition and can be agreed on by everyone?" No. That is the question as well as its extreme answer.
Yes, for us who always follow the development of law in Indonesia, we will not be surprised if there is a perppu that is questioned, both politically and legally. Because, every time a perppu is issued, there are those who oppose it, and there are also many who support it. Try to open the journey of our legal file. It can be said, there is no perppu that is not questioned and is not controversial.
In fact, although it is very rare, there have also been perppu that were rejected (to be exact, not approved) by the House of Representatives (DPR) and canceled (to be exact, declared contrary to the constitution) by the Constitutional Court. That is also okay because there are no sanctions for the makers.
At the most, a stoppage of its implementation will be requested, accompanied with a new solution. This is also the case with Perppu No. 1/2020 concerning state financial policies and financial system stability for handling Covid-19. There are those who accuse it of being unconstitutional and bumping against the law.
There are those who question it through the DPR and who will question it through a political review or a legislative review. There are also others who will bring it to the Constitution Court through a judicial review. It has been this way for a long time. We must respond to it as something that is normal. After all, the results must be for the benefit of the people. As usual, lawsuits against a perppu primarily focus on the issue of whether there is sufficient reason for "coercive urgency", as the basis for issuing the perppu. That is always the first problem.
For Perppu No. 1/2020 at least two things are under question, namely the substance of the arrangement of changes and the arrangement of the state budget (APBN) with the presidential regulation (perpres) as regulated in Article 12, paragraph 2 and the issue of impunity for decision-making officials as regulated in Article 27.
As a member of the Cabinet, I will not explore the answers to these problems in this article. There will be time and a forum for that later. I will only open up our collective memory to show that every Perppu is questioned, both through legislative channels in the DPR and through judicial processes in the Constitutional Court.
Throughout history, most perppu have finally passed the legislative process (political review or legislative review) in the DPR and the judicial review process in the Constitutional Court. But some were rejected by the DPR and others were canceled by the Constitutional Court. I will give two example of the dozens of perppu that were issued during the era of president Susilo Bambang Yudhoyono (SBY), which were rejected by the DPR and canceled by the Constitutional Court. This is provide an understanding that issues surrounding perppu are ordinary constitutional matters, not criminal problems that require the makers to be sentenced to jail.
In 2008, the House of Representatives rejected a perppu issued by president SBY, namely Perppu No. 4/ 2008 concerning the Financial System Safety Net (JPSK). The problem was resolved, and until now it has been left untouched, even though according to the law, a perppu that is not approved by the DPR should be revoked with a law.
Similarly in 2014, the Constitutional Court canceled Perppu No. 1/2013 that was later made into Law No. 4/2014 concerning the second amendment to the Constitutional Court Law. The problem was resolved, and until now the makers have not been handed any sanctions. The consequences of a perppu being rejected or revoked are only that its implementation will not continue or will be stopped.
KOMPAS/SEKAR GANDHAWANGI
People maintain physical distance in a queue to apply for the Jakarta Smart Card (KJP), on Tuesday (7/4/2020) at Jatinegara Market, Jakarta
Thus, we should not be surprised if a perppu is questioned, as this happens every time a perppu is issued. This is something that must be appreciated when we adhere to the principles democracy, which requires a system of checks and balances, as embraced by our Constitution. We should therefore think positively about political, legislative and judicial reviews of a Perppu, as they are constitutional mechanism.
Always provoking controversy
That perppu always provoke controversy is certainly due to their inherent nature that they are created in "compelling urgency". The assessment of the precariousness of a situation, even though in theory it is the subjective right of the president and there are criteria set in Constitutional Court Decree No. 138/PUU-VII/2009, is always questionable. That is the source of the controversy.
There are at least two groups that typically oppose a perppu. First are those who question the compatibility between the assumptions and the perppu\'s solution with the provisions of the Constitution.
There are at least two groups that typically oppose a perppu. First are those who question the compatibility between the assumptions and the perppu\'s solution with the provisions of the Constitution. They think consistently about the message of the Constitution and its arrangement into the perppu. Second are those who do not question the hierarchical relationship between a perppu and the Constitution and other statutory regulations, but purely disagree with the contents of the perppu because of differences in legal and political viewpoints.
A third group could also emerge, namely those who political behavior follows the principle of antem kromo, namely whatever the government does must be opposed. This third group is not important enough to discuss.
There is no punishment for the makers
There is no need for the makers of the laws or perppu, both the government and the DPR, to worry or be afraid about punishment for making a perppu. Never ever will anyone be sentenced to jail for making a perppu. Why? Because taxonomically, the making of a perppu is part of the domain of state administration law, not in the area of criminal law.
If, after a political or legislative review, a perppu is not approved by the DPR, then the only risk is that it will be revoked or terminated. And even if, after a judicial review, a perppu is "considered" unconstitutional by the Constitutional Court, then the only risk is that it will be revoked and its implementation stopped.
There are no criminal penalties for the makers. What does come under the realm of criminal law is not the "making" of the perppu, but if its "implementation" involves corruption and is accompanied by an element of menrea (bad desire or intention) and actus reus (the act of corruption itself).
This will not cause congestion or deadlock in state administration that can harm the existence of the nation and state.
Assuming that the government, the DPR and the Constitutional Court are equally responsible and sincerely fight for the safety of the nation and the good of the people by sharing their duties constitutionally, the process of evaluating and testing any perppu will certainly produce the best results. This will not cause congestion or deadlock in state administration that can harm the existence of the nation and state. There is no need to worry about the making and testing process or even opposition to a perppu. Be confident that everything will end well.
Moh Mahfud MD, Coordinating Political, Legal and Security Affairs Minister; Professor of Constitutional Law
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