Legal Literacy - In the intellectual landscape of higher legal education, the author realizes that the study of emergency constitutional law is still a less popular discourse to be discussed in depth in higher legal education. Likewise, in the research arena, studies on emergency constitutional law still tend not to receive much special attention from contemporary scholars (legal experts). The focus of attention tends to be fixated on understanding the configuration of constitutional law in normal order (conditions). However, it is undeniable that the 1945 Constitution of the Republic of Indonesia has adopted 2 (two) types of constitutional law, namely: first, the use of state power in normal circumstances; and second, the use of state power in abnormal (emergency) circumstances. In the developing global literature, this is referred to as constitutional dualism, as pioneered by the American Law Professor Bruce Ackerman. Furthermore, referring to emergency-nuanced regulations, the 1945 Constitution of the Republic of Indonesia regulates it in Article 12 which reads: “The President declares a state of danger. The terms and consequences of a state of danger are stipulated by law”. Furthermore, in Article 22 paragraph (1) it reads: “In the event of compelling urgency, the President has the right to stipulate government regulations in lieu of laws”. The existence of these 2 (two) constitutional norms forms an interesting node of thought to study the meaning of the emergency. So it is only natural that a question arises that disturbs legal reasoning, namely: are the two provisions (Article 12 and Article 22) identical? Furthermore, is the character of compelling urgency as the background for the enactment of Perpu comparable (equivalent) to emergency power regulations (state of danger)? These two questions will be the focus of this paper.

Dynamics of Meaning of Perpu Emergency

In the constitutional cycle, it must be admitted that until now the meaning of the phrase compelling urgency has not become a single understanding. This terminology remains a hot and sharp field of dialectics among constitutional law thinkers—especially when interpreting it as the background for the enactment of Perpu. In the academic realm and constitutional practice, this discourse continues to give rise to dichotomy. On the one hand, there is a view that places compelling urgency as identical to the concept of a state of emergency—namely an abnormal situation that threatens the stability of the state and requires an extraordinary response. However, on the other hand, some experts firmly separate the 2 (two) concepts by emphasizing that compelling urgency is a normal situation, so it is not identical to a state of danger as an emergency legal instrument based on Article 12 of the 1945 Constitution of the Republic of Indonesia. Of course, a crucial question inevitably arises: why was the dichotomy born and continues to throb in constitutional law discourse? The author views that the root of this interpretation split at least originates from the constitutional foundation itself: First, the 1945 Constitution was truly tested, apart from being drafted in a very limited and hasty time because it had to immediately realize Indonesia's independence and after independence status was obtained, the 1945 Constitution still needed to go through various phases before transforming into a permanent constitution, this was marked when the 1945 Constitution changed its guise into the 1949 RIS Constitution and the 1950 Provisional Constitution. In both constitutions, the regulation of Perpu transformed into 'Emergency Law (UU)', this means that Perpu is associated as Emergency Law with the aim of anticipating abnormal or emergency/dangerous state conditions, and requires regulations at the level of Law. However, these two constitutions did not last long because through Presidential Decree 5 July 1959, Soekarno re-enacted the 1945 Constitution which implied a change in status to the 1945 Constitution to become a permanent constitution and automatically reactivated the provisions regarding Perpu and delegitimized the Emergency Law nomenclature that had been recorded in the 1949 RIS Constitution and the 1950 Provisional Constitution. Second, editorially, Article 22 paragraph (1) of the 1945 Constitution in the pre-amendment text once contained an explanation, namely: “This article concerns the President's noodverordeningsrecht. This rule is indeed necessary so that the safety of the state can be guaranteed by the government in urgent circumstances, which force the government to act quickly and appropriately”. The term noodverordeningsrecht itself is defined in English as clear and present danger, which is a clear and compelling dangerous situation. From this understanding, it seems to lead to the idea that Article 22 is a residue of the regulations in the 1949 RIS Constitution and the 1950 Provisional Constitution which has a strong nuance of emergency alarms and haste. However, after a series of amendments to the 1945 Constitution (1999-2002) were carried out, fundamental changes occurred, the 1945 Constitution of the Republic of Indonesia (post-amendment) no longer contains explanatory provisions, thus creating a 'void' regarding the meaning of compelling urgency. Third, the emergence of the void then encouraged the Constitutional Court (MK) to provide a constitutional interpretation through Decision No. 138/PUU-VII/2009 which was based on a request for testing Perpu No. 4 of 2009 concerning Amendments to Law No. 30 of 2002 concerning the KPK. In the Decision, the Constitutional Court provides an interpretation of the intent of compelling urgency as the basis for the President to stipulate Perpu, namely: 1) The existence of an urgent need to resolve legal problems quickly based on the Law; 2) The required Law does not yet exist so there is a legal vacuum, or there is a Law, but it is inadequate; 3) the legal vacuum cannot be overcome through the formation of a Law in the usual procedure because it requires a considerable amount of time while the compelling urgency requires certainty to be resolved.

Straightening Out the Meaning of Compelling Urgency Regarding Perpu

The previous description has illustrated that the interpretation of the intent of emergency (compelling urgency) as the basis for the enactment of Perpu by the President seems to never be truly singular, the historical journey of Perpu regulation through the 1949 RIS Constitution and 1950 Provisional Constitution regimes, plays a large enough role to create a broad meaning of emergency for compelling urgency. From this point, it is not surprising that some legal experts often associate compelling urgency with state of emergency in a broad sense—including civil emergency, military emergency, to natural disasters. This understanding makes the difference between Article 12 and Article 22 appear blurred to this day. Therefore, this paper firmly intends to straighten out the paradigm of compelling urgency as the basis for stipulating Perpu based on the Constitutional Court Decision No. 138/PUU-VII/2009 as the final basis. The decision is like a spotlight that breaks through the ambiguity, because the Constitutional Court through its constitutional interpretation explains that the matter of compelling urgency to stipulate Perpu by the President is only in the arena of 'Legal Emergency' with 3 (three) indicators: First, ‘an urgent need to resolve legal problems quickly’ Second, ‘legal vacuum’, ‘inadequate law’, and Third‘There is not enough time available to form laws through ordinary procedures.’ Reflecting on the consideration Constitutional Court Decision No. 138/PUU-VII/2009 above, the Constitutional Court judge did not equate compelling urgency with a state of emergency. From the a quo decision, the author can interpret that Perpu is established as a legal product in a normal state, not a legal product from an abnormal situation that requires repressive executive action as in state of emergency. Thus, Perpu was born in the constitutional space because the ordinary legislative process was unable to answer legal needs in a timely manner, this means that the measure is the acceleration of formation due to the urgency/urgency of time which is fully assessed through the President's subjectivity to issue a Perpu product or not. Furthermore, the above argumentation can be reinforced by Jimly Asshiddiqie's thinking which also developed thoughts on emergency constitutional law in the Perpu dimension—by stating that “compelling urgency” is not an emergency in the sense of a state or military emergency, but rather a legal urgency. So the focus is on the legal emergency (Law) that arises due to the emptiness of the law and the inadequacy of the law, therefore it requires acceleration to form and enforce the law in order to create certainty. A popular opinion in the same context was also put forward by John Ferejohn and Pasquale Pasquino, in his writing The Law of the Exception: A Typology of Emergency Powers (2004), which distinguishes between 2 (two) types of emergency powers, namely: “administrative emergency powers” and “constitutional dictatorship”. In this framework, Perpu is in the first category, namely emergency administrative authority which is still subject to the legal system and legislative oversight. Meanwhile, a state of emergency has the potential to lead to the second form, namely constitutional dictatorship—a state in which the rule of law is suspended in order to save the country. According to Ferejohn, administrative emergency powers must remain under the control of legal norms that can be tested and supervised. Perpu in this context is subject to political testing (DPR approval), namely it is valid temporarily until the DPR session to submit a Bill and then becomes a permanent Law (if approved by the DPR). In the end, Emergency Constitutional Law records the meaning of 'emergency' as something specific to legal issues in the context of constitutional law. The background to the birth of emergency constitutional law is widely understood as a result of a situation or condition in a country that is considered unusual/normal. However, the specificity of emergency constitutional law thinking has in fact developed not only in the context of a state of emergency, but also a compelling urgency. Constitutional Court Decision No. 138/PUU-VII/2009 has made historical corrections, thus providing affirmation that Perpu is a response to a compelling urgency as an expression of a legal emergency in a normal state, therefore only time is a challenge. Thus, the decision was taken without the DPR because the legislative system was unable to answer the urgent legal call. Next, in the future the President needs to carefully pay attention to and consider the priority of the requirements for stipulating Perpu as in Constitutional Court Decision No. 138/PUU-VII/2009, this is important so that Perpu remains a legal product that is determined according to its essence, namely based on the urgency of the rules (law), not the urgency of the situation (emergency).