Legal Literacy - This article discusses a review of Articles 12 and 22 1945 Constitution in the context of a state of emergency (Forced Urgency). An in-depth analysis is conducted on the differences between the concepts of "state of danger" and "forced urgency," as well as their juridical implications. This article also evaluates the validity of Government Regulations in Lieu of Laws (Perpu) in emergency situations, including the case example of the Job Creation Government Regulation in Lieu of Law (Perpu), and presents views from legal experts. This explanation is important for understanding the legal mechanisms governing state emergency actions in accordance with the constitution.
Review of Articles 12 and 22 of the 1945 Constitution in the Context of a State of Emergency (Forced Urgency)
As a complex system, in practice, a country does not only function in a peaceful state without obstacles but also in a state of emergency. This state of emergency demands further regulation as an anticipatory alternative to unexpected and undesirable events. Furthermore, such regulation is also necessary for the efficiency and effectiveness of legal systems and state institutions to continue functioning as they should. This is because a state of emergency is diametrically opposed to a state of peace, which allows a country to function without obstacles.
Jimly in his book “Emergency Constitutional Law” as quoted from Kim Lane Scheppele, describes the concept of emergency in a country. The concept of emergency is definitively described as a situation when a country is faced with a life-or-death threat that requires a responsive action that, under normal circumstances, cannot be justified according to the principles adhered to by the country concerned.[1] In addition, Kim also adds that the justification for doing things that are impossible to do under normal circumstances can only be done in extreme circumstances. In other words, the state is forced to take extraordinary measures that violate the principles it adheres to. Therefore, the state of emergency can be referred to as an extraordinary state or the state of exception. [2]
By looking at this picture, a common thread can be drawn regarding the concept of emergency in a country. Firstly, there is a serious threat that endangers a country. Secondresponsive action is needed to face the threat. Third, such actions cannot be taken under normal circumstances. In addition, this concept of emergency is described differently in the Indonesian constitution. The Indonesian constitution divides this emergency situation into two forms, namely a state of danger and matters of compelling urgency.
Article 12 of the 1945 Constitution refers to this emergency situation in terms of a “state of danger”. In addition, Article 22 of the 1945 Constitution refers to it as “matters of compelling urgency”. The use of different terminology has implications for differentiating the juridical implications of the two. According to Jimly, the state of danger is equivalent to the understanding of a state of emergency or state of emergency. The President can stipulate or declare a state of danger at any time because it is included in the President's authority as head of state.
Meanwhile, in Article 22 of the 1945 Constitution, the material regulated includes the President's authority in the realm of legislative power, namely the President's authority to stipulate Government Regulations in Lieu of Laws (Perpu). If examined grammatically, the phrase in Article 22 is more general than the phrase in Article 12. Article 22, which regulates compelling urgency, includes a state of danger because a state of danger is compelling. Meanwhile, not all compelling urgencies are dangerous. The conclusion is that in any situation, the President can issue or stipulate a Perpu as long as it meets the requirements, even in normal circumstances.[3]
The conditions that must be met for a situation to be called a state of danger that causes a compelling urgency are:
- Dangerous threat or the element of a threatening threat
- Reasonable necessity or the element of necessity that requires
- Limited time or the element of time limitation[4]
If these three elements have been fulfilled, then a state of the country can be said to be a state of danger. However, if the first element is not fulfilled, then the situation is included in the understanding of compelling urgency. In the formation of a Perpu, there is another special requirement, namely that there is no alternative other than a Perpu to overcome the situation.[5] Thus, if there is a Perpu that does not fulfill these elements, then the Perpu is essentially contrary to Article 22 of the 1945 Constitution.
Review of Elements Regarding Government Regulations in Lieu of Laws (Perpu)
Perpu or Government Regulation in Lieu of Law is a legal product that receives normative attribution from the Constitution. Article 22 of the 1945 Constitution explicitly states the terminology “Government Regulation as a substitute for Law” instead of the terminology Government Regulation in Lieu of Law or Perpu. Furthermore, Article 22 paragraph (2) of the 1945 Constitution emphasizes the phrase “Government Regulation” which explicitly equates it with the Government Regulation regulated in Article 5 paragraph (2) of the 1945 Constitution.
Article 5 paragraph (2) of the 1945 Constitution, which states that Government Regulations or PP function as regulations implementing laws, is clearly different from Article 22 of the 1945 Constitution. In Article 22, the Government Regulations referred to are regulations in a state of emergency that function to accommodate material provisions that should be stipulated in the form of laws and replace laws.[6] The emphasis of the stipulation of Perpu is the existence of a condition of "compelling urgency" which is different from ordinary PP.
The condition of "compelling urgency" which is the consideration for the formation of this Perpu is different from the condition of "state of emergency" whose regulations are regulated in Article 12 of the 1945 Constitution. These two distinctive conditions should not be equated considering that these two conditions have been different since the formulation of the Constitution. Both Articles have not undergone changes in the first to fourth amendments. This shows that these two types of legal products are indeed regulated differently in the Constitution.
In addition, there is also a difference in the meaning of "compelling urgency" and "state of emergency". "State of emergency" is objective in the sense that it is based on the assessment of the DPR. Meanwhile, "compelling urgency" is subjective in the sense that it is based on the President's assessment which functions to handle an urgent situation.[7] Another difference is that Perpu is a legal product equivalent to a Law, while PP is a legal product below the Law. By looking at the explanation, PP and Perpu cannot and should not be confused.
Review of the "Forced" Element in the Job Creation Government Regulation in Lieu of Law (Perpu)
Perpu Number 2 of 2022 concerning Job Creation is a Perpu that was born from a legal loophole after decision 91/PUU-XVIII/2020 which tested Law Number 11 of 2020 concerning Job Creation. In the verdict a quo, the Job Creation Law was declared conditionally unconstitutional, that is, if it is not revised within an interval of two years from the decision a quo spoken. However, in the verdict there is an oddity, namely that the Job Creation Law remains in effect until the time interval specified for the revision of the Law a quo. This situation is very contradictory because the Job Creation Law is declared unconstitutional and has no binding legal force while the Law a quo is declared still valid.
In order to overcome this, the Government issued Perpu Number 2 of 2022 which contains the same substantial material as Law Number 11 of 2020 instead of making improvements to the substance of the Law a quo. The time interval given by the Constitutional Court, which is two years, was ignored by the Government by issuing the Perpu on December 30, 2022, or 13 months after Decision 91/PUU-XVIII/2020 dated November 3, 2021. In other words, the element limited time as a cumulative requirement for the formation of a Perpu is not fulfilled.
Requirements limited time the unfulfilled requirement is sufficient to be a logical reason for the unconstitutionality of the Job Creation Perpu. Formally, in the “Considering” section, Article 22 of the 1945 Constitution is included as the legal and constitutional basis for the formation of the Perpu. However, materially, the requirement for the fulfillment of compelling urgency, which is an element in the formation of the Perpu, is not fulfilled. This is compounded by the fact that in the “Considering” section, the stipulation of the Perpu is as an implementation of Decision 91/PUU-XVIII/2020. This is inconsistent because the Decision a quo orders improvements to the substance of the Law, not a formal transformation from the Law into a Perpu.
Furthermore, according to Dr. Despan Heryansyah, the global economic conditions due to COVID and the Russia-Ukraine war are not sufficient to be categorized as a reason for the formation of the Job Creation Perpu because there are still other alternatives. The alternative in question is improving the direction of the Job Creation Law by involving public participation or public participation. Meanwhile, one of the material requirements for the formation of a Perpu is that there are no other alternatives besides the formation of the Perpu. Thus, it can be concluded that the formation of a Perpu on the grounds of threatening global economic conditions is an incorrect alternative.[8]
Conclusion
Based on the explanation above, a conclusive common thread can be drawn, namely that the existence of Government Regulation in Lieu of Law Number 2 of 2022 concerning Job Creation is a legal product that is not in accordance with the conditions that allow a Perpu to be issued. The compelling urgency that is the juridical basis for the enactment of the Perpu is not fulfilled. In addition, the state's condition at the time the Perpu was enacted was also not fulfilled and also violated the Constitutional Court Decision Number 91/PUU-XVIII/2020.
Given the complexity of these controversial matters, the hope is that similar incidents, namely the enactment of a Perpu that does not comply with the conditions and requirements, will not happen again. This is because a Perpu can be categorized as a final step for the government to handle a condition where there are no other alternatives. Thus, it is unwise if legal products such as Perpu are manipulated for political-economic interests alone without regard to the interests of the public.
[1] Jimly Asshiddiqie, Emergency Constitutional Law (Jakarta: RajaGrafindo Persada, 2007); 1st printing, p. 58
[2] Ibid, p. 59
[3] Ibid, p. 206-207
[4] Ibid, p. 208
[5] Ibid, p. 282
[6] Jimly Asshiddiqie, Regarding Laws (Depok: Rajawali Pers, 2017); 4th printing, p. 55
[7] Ibid, p. 57
[8] Despan Heryansyah (20223 “The Compelling Urgency of the Job Creation Perppu?”; accessed on May 21, 2024 from https://news.detik.com/kolom
Bibliography
- Asshiddiqie, J. (2007). Constitutional Law. Jakarta: RajaGrafindo Persada.
- Asshiddiqie, J. (2017). Concerning Laws. Depok: Rajawali Pers.
- Heryansyah, D. (2023, January 5). Column. Retrieved from detiknews: 2023
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