Checking the Unchecked Power: The Role of the Indonesian Constitutional Court during the Pandemic

Abdurrachman Satrio

Padjadjaran University

The current coronavirus crisis has forced many countries around the world to take extraordinary measures. According to Tom Ginsburg and Mila Versteeg, countries are taking measures in three ways – albeit with local variations – namely:

1. Declaring a state of emergency;

2. Using mechanisms in existing legislation aimed to deal with a health or other crisis; or

3. Creating new emergency legislation aimed to deal specifically with COVID-19.

These extraordinary measures have allowed many countries, including those categorized as democracies, to do things that cannot be done under normal circumstances, such as: restricting people’s freedom of movement, imposing limits on free association and public gatherings, limiting the flows of information, and restricting social and religious activities in the public. That is why it is important for every country dealing with the coronavirus crisis to always use a proportional approach, that is, an approach which has the least restrictive impact on values ​​such as human rights and the rule of law.

Indonesia is no exception, as it currently tries to strike the difficult balance between maximising the effectiveness of the government response while prioritizing the values of human rights ​​and the rule of law. Indonesia is the biggest democracy in Southeast Asia and also the country with the most COVID-19 cases in Southeast Asia. So far, Indonesia does not seem to have a clear attitude regarding the handling of COVID-19.

On one hand, the Indonesian people want President Joko Widodo’s (Jokowi) administration to use a medical approach that has the least restrictive impact on human rights to deal with this pandemic. This can be seen from people’s demands for the government to use the existing Law No. 6 of 2018 on health quarantine. This law – which was based on Article 28H of the 1945 Constitution, which guarantees the right to health – would allow the government to limit people’s right to movement as well as social and religious activities carried out in public spaces through the establishment of a health emergency status. But the activation of this status would not suspend the people’s role to supervise the government, because it would not allow the government to limit freedom of speech and would not disrupt the works of other state institutions such as parliament and the court. This is because the main purpose of this mechanism would be only to overcome the pandemic, which is not related to political matters.

On the other hand, Jokowi’s government wants the handling of this crisis to be performed through a security approach by activating civilian emergency status which is based on the state of emergency mechanism in Article 12 of the 1945 Constitution. This status, which is more appropriately applied during war and conflicts, would mean the Jokowi government could limit free movement but also freedom of speech and the flow of information in the public sphere. This status would also mean that government action would not be checked by the court or the House of Representative (Indonesian parliament).

In the end, Jokowi’s government was forced to obey public demands by establishing a health emergency status, which was followed by a decision to impose large-scale social limitations in some parts of Indonesia. Unfortunately, these moves appear to be only a tactic to impress the public because many of the government’s other actions in dealing with COVID-19 seem to apply security approaches comparable to a state of emergency. For example, the Police Chief issued an internal regulation that empowers the Police to prosecute acts defaming the president’s or government officials’ ability to handle the coronavirus. The establishment of this regulation has the potential to restrict freedom of speech since many people often criticize Jokowi’s government’s chaotic handling of COVID-19. 

More worryingly, the government has also created regulations that mean that government actions during this crisis cannot be checked by the court. At the end of March, shortly after the government declared health emergency status, it used an emergency legislation mechanism (Perpu) in Article 22 of the 1945 Constitution – which allows the President to enact a provisional regulation without requiring parliamentary approval in the face of ‘compelling exigencies’ – to issue Government Regulation in Lieu of Law 1 of 2020 on State Economic Policy to Handle Coronavirus Pandemic (Coronavirus Law).

Under the pretext of fighting the crisis caused by the coronavirus, the Coronavirus Law asserted that all economic policies adopted by the government in the context of handling the COVID-19 crisis cannot be challenged through the administrative courts. The Coronavirus Law also prohibits civil or criminal prosecutions for any actions taken by government officials implementing this Law, as long as the actions were performed in ‘good faith’. This prohibition is problematic, because the determination of whether an act of a government official is carried out in good or bad faith can only be decided by a court. In effect, it can be said that this law gives complete immunity to a government official when dealing with the coronavirus crisis.

The immunity granted by the Coronavirus Law to government officials contradicts the basic principle of health emergency status that still enables the court to check government action during the emergency. In effect, the Coronavirus Law uses the basic principle of the state of emergency in Article 12 of the 1945 Constitution, which means any government action cannot be supervised by the court or parliament.

However, it should be noted that the Coronavirus Law was formed by the emergency legislation mechanism, so its existence was provisional. The parliament was able to invalidate it if they found that the Law was not issued to address ‘compelling exigencies’, which is a requirement in Article 22 of the 1945 Constitution for the government to enact emergency legislation. Unfortunately, on 12 May, the parliament – which is dominated by members that support Jokowi’s government – suddenly held a session that accepted the Coronavirus Law as a permanent law. This action is quite puzzling because not long before, they showed an attitude of not wanting to immediately hold a session to deliberate on the Coronavirus Law.

This action stifled attempts by civil society groups to challenge the Coronavirus Law in the Constitutional Court when the status of this Law was still emergency legislation. Opponents of the Coronavirus Law had argued that the Law gave unlimited power to the government by eliminating the court’s role to check the actions taken by the government, so it violated the 1945 Constitution that guarantees judicial independence as well as the principle of a state governed by law (rule of law).

At that time, the attempts of civil society groups to bring the Coronavirus Law to the Constitutional Court was quite controversial. This is because Article 24C of the 1945 Constitution explicitly states that the Constitutional Court can only conduct a judicial review to the law (not emergency legislation). For this reason, even though the Court since 2009 has affirmed that they can review the emergency legislation, they tend to use a very restraining approach when dealing with emergency legislation. Accordingly, until now the Court has never invalidated any of the emergency legislation it has reviewed.

In the Coronavirus Law case, the Constitutional Court had actually stated to the public that the Court wanted the case to be decided as early as possible. For this reason, the Parliament’s decision to suddenly hold a session to accept the Coronavirus Law appears to have been taken to prevent the Court from deciding on the provisional law’s constitutional validity. With the change in the status of the Coronavirus Law from emergency legislation to permanent law, the case that is under review by the Constitutional Court is certain to be cancelled.

Now the only way to invalidate the provisions in the Coronavirus Law is for the applicants to immediately file another petition to again challenge the Law in the Constitutional Court. However, the delay may afford the government a significant benefit. That is because, until now, the Constitutional Court’s decisions tend to be framed only to take prospective effect. In other words, if the Jokowi government immediately creates and implements policies under the Coronavirus Law, there is a possibility that such policies may have continued operation and cannot be challenged in the court, even if the Constitutional Court were to subsequently declare provisions of the Coronavirus Law unconstitutional.

This means that the Constitutional Court needs to play a more active role when reviewing the Coronavirus Law, potentially by crafting a decision to have retroactive effect, as they did in one of their landmark decisions in 2009. The way that this Law attempts to prevent judicial challenge is not a proportionate response, given the fact that this is a health emergency, in which the court can still operate using online hearings. That is why the Coronavirus Law threatens the values of rule of law and constitutionalism in Indonesia.

These two values have experienced significant setbacks in the last few years, as a result of Jokowi’s government’s efforts to weaken them. However, this crisis provides an opportunity for his government to diminish these two values more than ever before. That is why the role of the Indonesian Constitutional Court has become very important, as the only institution that could be considered relatively independent from Jokowi’s government influences. The Constitutional Court should ensure that the government’s extraordinary measures in dealing with the current crisis do not endanger democratic values such as the rule of law and human rights.

Abdurrachman Satrio is a researcher at the Center for State Policy Studies in the Faculty of Law, Padjadjaran University.

Suggested citation: Abdurrachman Satrio, ‘Checking the Unchecked Power: The Role of the Indonesian Constitutional Court during the Pandemic’ IACL-IADC Blog (26 May 2020) https://blog-iacl-aidc.org/2020-posts/2020/5/26/checking-the-unchecked-power-the-role-of-the-indonesian-constitutional-court-during-the-pandemic