Lawyer Jakarta – Constitutional, The recent war between countries has brought our concern about the state’s readiness to respond to threats to the existence of the state. We can see this phenomenon of preparedness in terms of regulations that regulate how the state responds to the state of emergency in Indonesia. Apparently, there is only one regulation that regulates the state of war, namely through Law No. 23/Prp/1959 concerning Dangerous Circumstances which until now has entered a validity period of more than fifty years. – Jakarta Law Office / Lawyer / Jakarta Law Office
Historically, this Law was formed based on three main problems that occurred. First, it was formed during the period of guided democracy so that it has a conservative legal character. Second, there is historical experience regarding threats to the existence of the state so that it still maintains a traumatic regulation on the resilience of power and third, the desire to replace legal products in responding to threats to the state that were previously in the form of a Presidential Decree became law. – Jakarta Lawyer / Corporate Lawyer Jakarta / Jakarta Consulting
If we look at the background of the formation and the purpose of the regulation of the state of danger, the government actually only wants to respond to the situation that occurred at that time. Seeing today, with the change in the presidential system of government through strong checks and balances and changes in the institutional structure through the amendment of the 1945 Constitution, the law has become irrelevant to be implemented and enforced.
Thus, this law still holds constitutional problems. Issue of Substance of Emergency Regulation If we glance at the substance of the regulations in the Law a qou, the potential for constitutional violations will be very real. For example, the regulation of the President’s authority in forming regulations without a control mechanism through parliament or through testing in court (Article 10 paragraph 2). This clause will certainly weaken the concept of parliamentary and judicial oversight. The President also has the right to confiscate all goods that are suspected or will be used to disturb security and limit or prohibit the use of goods (Article 15 paragraph (1). – Lawyer in Indonesia / Jakarta Law Firm / Constitutional
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In addition, the Martial Law Authority also has the right to detain and arrest a person without pro justicia procedures in the absence of sufficient preliminary evidence to make a detention or arrest (Article 32). In addition, the martial law ruler also has the right to take power regarding public order and security and this is on the basis of the subjectivity of the martial law ruler himself. To make matters worse, regarding the War Emergency. In these circumstances, the Warlord is even allowed to take goods or use any kind of goods belonging to civil society for the sake of security and defence and the goods taken for possession are directly transferred to the State and are free from all liability rights to such goods. As a result, the protection of citizens’ fundamental rights to protect their property is not met. – Lawyer / Jakarta Law Firm
Deconstructing Norms
With the enactment of Law No. 23/Prp/1959, it is actually normatively vulnerable to violating the constitution. The concept of giving absolute authority to the emergency ruler implicitly gives a large space to the emergency ruler to carry out an emergency mechanism that will then give rise to authority without supervision. Article 12 of the 1945 Constitution regarding dangerous circumstances even gives the DPR the authority to exercise control through the formation of laws.
In research written by Ferejhon and Pasquino in “The Law of Execption: A Typology of Emergency Powers”, they have even criticized the potential for abuse of power in emergency situations wrapped in power in the name of saving the people and the state. At least, there are four things that must be rearranged in regulating the implementation of the emergency itself. First, determine who has the right to declare a state of emergency. Second, who exercises power, third, who ends or stops the state of emergency and fourth, who is allowed to interfere in determining politically by parliament and/or legally by the courts everything that is done and decided by the emergency power. – Advocate Jakarta / Law Firm Jakarta / Indonesia Lawyer
Constitutional Control The check and balance system in the legal system for the management of the state of emergency is a must in achieving balanced power. The principle of the legislative model initiated by Ferejhon and Pasquino becomes relevant by giving the power to parliament to take part in the process of handling emergencies and supervise executive actions and decisions in the implementation of emergencies must also involve judicial institutions such as the Constitutional Court to control and protect the basic rights of citizens in determining the applicability or decisions or regulations through judicial review. Thus, even in an emergency, the state is consistent in implementing the constitution while still enforcing an optimal supervision system. – HMP & Associates Law Office